Judge Stephen I. Goorvitch, Case Number: 24STCP03225, Date: 2025-05-14 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 24STCP03225, Date: 2025-05-14 Tentative Ruling

[Tentative] Order Granting in Part and Denying in Part Petition for Writ of Mandate

Petitioner Vanessa Gamboa (“Petitioner” or “Claimant”) petitions for a writ of administrative mandate directing Respondent Jennifer Troia, Director of the California Department of Social Services (“Respondent” or the “Director”) to set aside a final administrative decision denying protective supervision and additional hours for personal care services under the In-Home Supportive Services program to Petitioner’s daughter, Mariah Mesa (“Recipient”). The court substitutes Jennifer Troia for the former director, Kimberly Johnson, and orders the clerk to update the docket. The petition is granted in part and denied in part. The court finds that the weight of the evidence does not support Respondent’s findings that Recipient is not entitled to personal care services for laundry, dressing, and bathing, oral hygiene, and grooming. The court also finds that the weight of the evidence does not support Respondent’s finding that Recipient is not entitled to protective supervision. However, the court finds that the weight of the evidence does, in fact, support Respondent’s finding that Recipient is not entitled to personal care services for feeding. The court will issue a writ directing Respondent to set aside those findings and reconsider the case in light of the court’s opinion and judgment. (Code Civ. Proc. § 1094.5(f).) This order “shall not limit or control in any way the discretion legally vested in the respondent.” (Ibid.)

Personal care services are a type of IHSS benefit. (Welf. & Inst. Code § 12300(b).) Available services include assistance with bathing, oral hygiene, and grooming; dressing; laundry; bowel, bladder, and menstrual care; transfers; feeding; and respiration. (Welf. & Inst. Code § 12300(c).) To qualify for any category of personal care services, a minor must demonstrate an extraordinary need. All County Letter (ACL) 17-42 defines extraordinary need as “a need that is based on the functional impairment due to the minor’s disability and that is beyond what would normally be expected for a minor of the same age without the functional impairment.” (ACL 17-42 at 3; see AR 16.)

§ 12300(b).) “Protective supervision” consists of observing recipient behavior and intervening as appropriate to safeguard the recipient against injury, hazard, or accident. (MPP § 30- 757.17.)

The Department’s regulations, and case law, define the purpose and form of protective supervision, which, in essence, determines the eligible recipients of this benefit . . . . Some recipients are old, suffering degenerative diseases. Others are young but [developmentally disabled], epileptic, blind, brain damaged or schizophrenic. The recipients cannot protect themselves from injury. Some are self-destructive.

(Calderon v. Anderson (1996) 45 Cal.App.4th 607, 614-615, internal citations omitted.) During the time relevant to this petition, protective supervision was defined as a benefit available for monitoring the behavior of “non-self-directing, confused, mentally impaired, or mentally ill persons only.” (MPP § 30-757.171; see AR 19.) Protective supervision is only authorized if “[a]t the time of the initial assessment or reassessment, a need exists for twenty-four-hours-a-day of supervision in order for the recipient to remain at home safely.” (MPP § 30-757.173(a).) Protective supervision is provided because of functional limitations of the recipient and cannot be authorized for routine childcare or supervision. (MPP § 30-763.456(d).) Furthermore, “[p]rotective Supervision requires a 24/7 need, so if the behavior in question is considered predictable, and the need for supervision is at certain times of the day, there is no Protective Supervision eligibility because there is not a 24 hour-a-day need.” (ACL 15-25 at 5.)

California law requires social services staff to request “that a person requesting protective supervision submit [medical] certification to the county.” (Welf. & Inst. Code § 12301.21(b).) That certification is made on a standard form (the “SOC 821”), which must be completed by a physician or other qualified medical professional. (MPP § 30-757.173(a)(1); see AR 19.) “The completed form SOC 821 (3/06) shall not be determinative, but considered as one indicator of the need for Protective Supervision.” (MPP § 30-757.173(a)(3).) Other pertinent information in assessing the need for protective supervision includes the social worker’s interview with the recipient. (MPP § 30-757.173(a)(5).)

MPP section 30-757.172 specifies five circumstances in which protective supervision is not authorized:

(b) When the need is caused by a medical condition and the form of the supervision required is medical.

(e) To guard against deliberate self-destructive behavior, such as suicide, or when an individual knowingly intends to harm himself/herself.

B. Petitioner’s Application for Personal Care Services and Protective Supervision

Recipient is a four-year-old girl who lives with Petitioner, her mother, and her two teenage sisters in a second-floor apartment. (AR 3.) Recipient is diagnosed with autism and intellectual disability and is nonverbal. (Ibid.) Recipient attends a special education preschool for three hours per day. (Ibid.)

On March 22, 2023, Petitioner applied to Los Angeles County (the “County”) for IHSS benefits on behalf of Recipient. (AR 3.) On May 12, 2023, a social worker for the County (the “social worker”) conducted a home visit that lasted for about 90 minutes. (Ibid.) The social worker observed Recipient’s behaviors and assessed her needs for multiple personal services and protective supervision. (AR 181-186.) Based on Recipient wearing diapers at age four, the County approved Recipient to receive 24 hours and 11 minutes of bowel and bladder care services per month. (AR 30, 103.) For all other personal care services categories, the County determined that Recipient did not demonstrate extraordinary need. (AR 30, 119, 175–177, 181-186.) The County also determined Recipient to be ineligible for protective supervision. (AR 103-106, 181-186.)

On June 19, 2023, the County mailed a Notice of Action (“NOA”), authorizing 24 hours and 11 minutes of bowel and bladder care per month and denying Petitioner’s application for protective supervision and other personal care services. (AR 113.) Petitioner filed a request for an administrative appeal on July 13, 2023. (AR 3.)

An administrative law judge (the “ALJ”) conducted an administrative hearing on September 20, 2023, to consider Petitioner’s appeal of the County’s denial of personal care services hours for laundry, feeding, dressing, bathing, oral hygiene, and grooming, as well as the denial of protective supervision. (AR 3, 197.) At the hearing, Petitioner and her authorized representative, David Khoury, appeared on behalf of Petitioner. (AR 195-196.) Janel Carrera and the social worker appeared on behalf of the County. (AR 195.) Both parties submitted documentary evidence, including the form SOC 821 prepared by Recipient’s pediatrician, Petitioner’s handwritten description of Recipient’s behaviors, Recipient’s Individualized Education Plan (“IEP”) and Individual Program Plan (“IPP”), a Protective Supervision 24-Hour Coverage Plan (form SOC 825), and the social worker’s case assessment narrative. (AR 3-6, 32-191.)

Petitioner and the social worker provided contrasting accounts of the existence and frequency of Recipient’s needs for personal care services and protective supervision. Petitioner testified that Recipient picks her nose to the point of causing nosebleeds every day, has toileting accidents multiple times a day, and plays with her feces, causing Petitioner to change Recipient five to six times a day and do extra laundry. (AR 202-203.) Petitioner testified that Recipient does not feed herself or drink at all without assistance (AR 213-219); Recipient is uncooperative when getting dressed (AR 224-225); Petitioner bathes Recipient four times a day due to Recipient’s accidents; and Recipient fights the bathing (AR 227-231). The social worker testified that Petitioner did not report all these concerns during the intake assessment, including the nosebleeds, toileting accidents, and playing with feces. (AR 208–209, 221, 226.)

With respect to protective supervision, the social worker testified that she determined that Recipient has mental impairment, is non-self-directing, and engages in potentially dangerous behavior, namely head banging. (AR 232-234.) However, the social worker determined that Recipient is not entitled to protective supervision because she “doesn’t engage in dangerous behaviors besides the head banging.” (AR 234.) The social worker testified that no events of Recipient eloping, wandering, or playing with dangerous or sharp items were reported during the intake assessment. (AR 233-234.) In contrast, Petitioner testified at the hearing that Recipient engages in many types of dangerous behavior, including attempting to elope, climbing on furniture, running into things, placing non-edible items in her mouth, grabbing sharp objects, having meltdowns causing self-injury, not having stranger danger, not sleeping through the night, and playing with stove knobs. (AR 235-270.) Petitioner testified that she did not report all these behaviors during the intake assessment because she “was just barely getting to know [her] daughter,” and she “didn’t know exactly what [she] had to report at the moment.” (AR 235.)

After considering the evidence, the ALJ affirmed the County’s determinations regarding personal care services and protective supervision. (AR 3-29.) For the most part, the ALJ did not find Petitioner’s testimony to be credible because, the ALJ reasoned, there was a lack of corroboration in the documentary evidence. (Ibid.) On October 6, 2023, Respondent adopted the ALJ’s proposed decision as the final decision of the Department. (AR 2.) Petitioner requested a rehearing on November 3, 2023. (AR 190.) The CDSS State Hearings Division denied the rehearing request on January 16, 2024, explaining that the ALJ “provided a detailed summary of the evidence and made findings consistent with that evidence.” (AR 191.) This petition for writ of mandate followed.

Under Code of Civil Procedure section 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc. § 1094.5(b).)

“In reviewing decisions denying applications for public assistance . . . , the superior court exercises its independent judgment” on the record. (Norasingh v. Lightbourne (2014) 229 Cal.App.4th 740, 752.) Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby v. Pierno (1971) 4 Cal. 3d 130, 143.) The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal. App. 4th 860, 868.)

An agency is presumed to have regularly performed its official duties. (Evid. Code

§ 664.) “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal. 4th 805, 817.) When an appellant challenges “the sufficiency of the evidence, all material evidence on the point must be set forth and not merely [her] own evidence.” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.)

The court exercises its independent judgment on questions of law arising in mandate proceedings. (See Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.)

Petitioner contends that the weight of the evidence does not support Respondent’s decision to deny IHSS hours for laundry, feeding, dressing, bathing, oral hygiene, grooming, and protective supervision. (Opening Brief (“OB”) 8-10; Reply 2-4.) Petitioner contends that Respondent prejudicially abused her discretion by minimizing the SOC 821 prepared by Recipient’s pediatrician, among other documentary evidence, and by “dismiss[ing] the Petitioner’s testimony simply because certain points were not conveyed to everyone with whom the Petitioner came in contact concerning the Recipient.” (Reply 3-4.)

Before reaching these arguments, the court observes that Recipient has been diagnosed with autism and intellectual disability, and she is nonverbal. (AR 3.) Recipient’s pediatrician concluded that Recipient “has severe memory deficits, severe disorientation, and severely impaired judgment.” (AR 4.) Similarly, after observing Recipient for 90 minutes, the social worker determined that Recipient has mental impairment, is non-self-directing due to mental impairment, and engages in potentially dangerous behavior, namely head banging. (AR 182-183, 232-234.) These facts are not disputed.

Respondent found that Recipient does not have an extraordinary need for laundry services. (AR 6-8.) Among other reasons, Respondent found that Petitioner did not report toileting accidents, frequent nose bleeds, or Recipient playing with feces to the social worker and such behaviors were not observed during the social worker’s home visit. (Ibid.) The court finds that the weight of the evidence does not support this finding.

At the hearing, Petitioner testified that Recipient picks her nose to the point of causing nosebleeds every day, has toileting accidents multiple times a day, and plays with her feces four or five times a week, all of which causes Petitioner to change Recipient five to six times a day and do extra laundry. (AR 202-206.) Petitioner testified in detail about the reasons she believes Recipient has an extraordinary need for laundry services. To illustrate, Petitioner testified as follows with respect to Recipient playing with feces:

ALJ WORTHINGTON: Okay. So how is she leaking through her diaper multiple times a day? Can you explain that?

V. GAMBOA: She -- when she does have accidents, she does play with her poop, so she cleans herself with her -- her clothes.

ALJ WORTHINGTON: Okay. And what does she do with it? Is she treating it like playdough? Is she, like, just treating it like mud? Is she, like, rubbing it on herself? What is she doing with the (crosstalk)?

V. GAMBOA: She plays with it. She puts it in her mouth. She rubs her eyes with it.

As the social worker acknowledged, Petitioner’s testimony was concerning and suggests an extraordinary need for laundry services (and also protective supervision). (AR 208-209.) Nonetheless, Respondent did not believe Petitioner’s testimony because the social worker testified that the nosebleeds, playing with feces, and having to change Recipient multiple times throughout the day were not reported at the time of the assessment on May 12, 2023. (AR 208-209.)

Respondent prejudicially abused her discretion. Weighing the evidence, the court finds that Petitioner’s testimony about the need for laundry services was credible and sufficiently corroborated by the documentary evidence. In the case assessment narrative, the social worker ranked Recipient as a “4” in bowel/bladder care and noted that Recipient is not potty trained and needs substantial human assistance in that area. (AR 182.) This documentary evidence is consistent with Petitioner’s testimony that Recipient has frequent toileting accidents and must regularly change her clothes.

Moreover, as noted in the social worker’s narrative, Petitioner did report that Recipient plays with feces in the form SOC 825, Protective Supervision 24-Hours-a-Day Coverage Plan, which Petitioner prepared on May 18, 2023, just six days after meeting with the social worker. (AR 185, 121.) Specifically, in the form SOC 825, Petitioner wrote that Recipient “has a habit of playing with her poop she sometimes puts it in her mouth. . . .” (AR 122 [emphasis added].) Although Respondent highlights the word “sometimes” in her decision (AR 7-8), the word “habit” indicates that Recipient regularly plays with her feces, which is consistent with Petitioner’s testimony at the hearing.

Although the nosebleeds do not appear in the documentary record, Petitioner’s testimony adequately supports that Recipient sometimes picks her nose and has nosebleeds that soil her clothing. Regardless of whether the nosebleeds occur every day, as Petitioner testified, the evidence shows that Recipient has an extraordinary need for laundry services for multiple reasons. Accordingly, the court finds that the weight of the evidence does not support Respondent’s findings to deny IHSS hours for laundry services. (AR 6-8.)

Respondent found that Recipient does not have an extraordinary need for feeding services. (AR 8-9.) Respondent reasoned that there was “a lack of evidence in the documentation” corroborating Petitioner’s testimony that Recipient has severe feeding limitations. (Ibid.) The court finds that the weight of the evidence supports this finding.

Petitioner testified that the child “does not eat at all,” requiring Petitioner to spoon-feed her and make sure she swallows. (AR 213–215.) Petitioner testified that Recipient cannot hold a bottle or cup and needs constant assistance. (Ibid.) Notably, Petitioner acknowledged that Recipient is about 80 pounds and eats breakfast, lunch, dinner, and three snacks a day, albeit with assistance. (AR 219-221.) In contrast, the social worker testified that, at the intake assessment, Petitioner reported that Recipient is able to feed herself with either a spoon or biting with her hands, and that Recipient is able to hold a sippy cup or water bottle and drink out of it herself. (AR 221.) The Individualized Education Program (“IEP”), prepared for Recipient in February 2023, states that “there is no report of difficulty with chewing or swallowing” and “oral motor skills were deemed to be within functional limits.” (AR 148.) The social worker’s case assessment narrative does not identify any feeding limitations and states that Recipient “feed[s] self while using hands or spoon utensil, hold[s] sippy cup or water bottle and drink[s] by herself.” (AR 182.) Exercising its independent judgment, the court finds insufficient corroboration for Petitioner’s testimony that Recipient has an extraordinary need for feeding services. Further, Petitioner’s testimony conflicts with the social worker’s testimony, the IEP, and the case assessment narrative. Accordingly, the court finds that the weight of the evidence supports Respondent’s findings to deny IHSS hours for feeding services. (AR 8-9.)

Respondent found that Recipient does not have an extraordinary need for dressing services “based on the documentary evidence that is inconsistent with the claimant’s testimony.” (AR 9.) The court finds that the weight of the evidence does not support this finding.

Petitioner testified that Recipient needs to change her clothes multiples times a day because of the toileting accidents, nose bleeds, and playing with feces. (AR 204-205, 224.) Petitioner also testified that Recipient is uncooperative when getting dressed: “I have to pick up her legs and put her, you know, her pants on. She just stands, she does not help. She does not understand the problem. . . . [S]he fights me consistently.” (AR 224-225.) Petitioner testified it takes about 15 minutes every time she changes Recipient. (AR 225.) The social worker testified that “during the assessment, it was reported to me that the Recipient is able to take off her pants independently, and she is able to put on slide-on shoes. However, sometimes she puts them on the wrong feet.” (AR 226.) However, the social worker’s testimony and case assessment narrative do not elaborate or summarize the questions that were asked about dressing at the home visit, which was only 90 minutes. (AR 226, 181-184.) As discussed above, there is corroboration in the documentary evidence for Petitioner’s testimony about toileting accidents and playing with feces. (See AR 185 [habit of playing with feces].) Further, the Multi-Disciplinary Psycho-Education Evaluation for Recipient, dated February 6, 2023, states in pertinent part:

Observation/School Psychologist – . . . During the assessment, the recipient presented with poor eye contact, did not respond to her name being called, attempted to elope, was easily frustrated, and easily upset. Recipient presented aggressive behaviors where she hit her parents when she was frustrated ….

Adaptive/Daily Living Development – Recipient’s conceptual skills which include communication, functional academics, and self-direction are extremely low and below expectancy when compared to same age peers. Her practical adaptive behaviors including community use, school living, health and safety, and self-care are in the extremely low range and below expectancy when compared to same age peers.

(AR 184.) This description of Recipient in the documentary record is consistent with Petitioner’s testimony that Recipient does not cooperate and “fights me consistently” when dressing. Weighing the evidence, the court finds that Petitioner’s testimony about the dressing needs of Recipient is credible and sufficiently corroborated by the documentary records. Accordingly, the court finds that the weight of the evidence does not support Respondent’s findings to deny IHSS hours for dressing services. (AR 9.)

Respondent found that Recipient does not have an extraordinary need for bathing, oral hygiene, and grooming services. The weight of the evidence does not support that finding. The Respondent found “that the child does not engage in feces play or have frequent enough accidents to merit” bathing services and there is a “lack of documentary evidence consistent with the claimant’s testimony.” (AR 9-10.) For the reasons discussed above with respect to laundry and dressing services, the court concludes that these findings are not supported by the weight of the evidence. Exercising its independent judgment, the court concludes that Petitioner’s testimony and the documentary evidence show an extraordinary need for bathing, oral hygiene, and grooming services, including because of Recipient’s frequent toileting accidents, her habit of playing with feces, her bloody noses, and her lack of cooperation when bathing. (See e.g. AR 202-203, 224-234, 182-185, 53.) Accordingly, the court finds that the weight of the evidence does not support Respondent’s findings to deny IHSS hours for bathing, oral hygiene, and grooming services. (AR 9-10.)

To obtain protective supervision, Petitioner must show that: (1) Recipient has a mental impairment; (2) Recipient is non-self-directing; (3) Recipient is likely to engage in potentially dangerous activities; and (4) There is a need for 24-hour supervision. (MPP § 30-757.171, § 30-757.173(a), § 30-763.456(d); Calderon, supra, 45 Cal.App.4th at 616; see AR 19.)

There is no dispute that Recipient “has a mental impairment because she is diagnosed with autism and intellectual disability.” (AR 10.) This element is satisfied.

“[P]rotective supervision is available for those IHSS beneficiaries who are non-self-directing, in that they are unaware of their physical or mental condition and, therefore, cannot protect themselves from injury, and who would most likely engage in potentially dangerous activities.” (Calderon, supra, 45 Cal.App.4th at 616; accord Marshall v. McMahon (1993) 17 Cal.App.4th 1481, 1486-87.) The social worker found that Recipient satisfied this requirement. (AR 10, 182-183.) Respondent rejected this determination, finding that Recipient is self-directing because Recipient “has a good memory and enjoys matching games;” she “can navigate around her home and pull the claimant towards food or the door to communicate her needs;” and because her tantrums and head-banging are “intentional… behavior to achieve a desired result.” (AR 27-28.)

Exercising its independent judgment on the record, the court concludes that the weight of the evidence does not support the Respondent’s finding that Recipient is self-directing. In the SOC 821, Recipient’s pediatrician concluded that Recipient “has severe memory deficits, severe disorientation, and severely impaired judgment.” (AR 4.) Further, the pediatrician found that Recipient has “permanent” and “severe autism;” she “does not communicate;” she has the physical capacity to place herself in a situation which would result in injury, hazard or accident; and she “throws temper tantrums [and] bangs her head.” (AR 53.) Similarly, after observing Recipient for 90 minutes, the social worker determined that Recipient has mental impairment and is non-self-directing due to mental impairment. (AR 182-183, 232-234.) The Multi-Disciplinary Psycho-Education Evaluation for Recipient, dated February 6, 2023, also reports that Recipient’s self-direction is “extremely low.” (AR 184.) The County did not present any medical or expert opinion that conflicts with these findings. Further, at the hearing, Petitioner testified at length about Recipient’s mental impairment, her unawareness of the condition, and her inability to protect herself from injury. (AR 201-270.) The court has considered the evidence cited in the decision and in Respondent’s opposition brief. Respondent has not identified sufficient reasons to disbelieve Petitioner’s testimony, which is corroborated by the opinions of the pediatrician, the social worker, and the Multi-Disciplinary Psycho-Education Evaluation. Accordingly, the court finds that the weight of the evidence does not support Respondent’s findings that Recipient is self-directing. (AR 27-28.)

Respondent found that Recipient is not likely to engage in potentially dangerous activities and does not need 24-hour supervision because her head banging is “mild.”[2] Respondent also found that “attempted eloping from the house, climbing furniture and jumping off, running into walls, mouthing nonfood objects, rummaging through kitchen cabinets and touching sharp objects, or biting herself and hitting herself during meltdowns [were] not occurring with sufficient frequency to merit reporting to evaluators and are therefore not likely to occur.” (AR 29.) Respondent found that Petitioner’s testimony about these “concerning behaviors” was not credible because she failed to report them “to the social worker, the pediatrician, the Regional Center, the psychoeducational evaluator, or the school district.” (AR 14.)

The weight of the evidence does not support Respondent’s finding. As discussed above, Petitioner testified that Recipient picks her nose to the point of causing nosebleeds every day and plays with her feces four or five times a week. (AR 202-206.) As discussed above, there is corroboration in the documentary evidence for Petitioner’s testimony about Recipient playing with feces. (AR 185 [habit of playing with feces].) There is testimony that Recipient attempts to put her own feces in her mouth and eyes. (AR 205-206.) Further, Petitioner’s testimony adequately supports that Recipient sometimes picks her nose and has nosebleeds that soil her clothing. These behaviors, in themselves, show a need for protective supervision.

Petitioner also testified at the hearing that Recipient engages in many types of dangerous behavior, including head banging, attempting to elope, climbing on furniture, running into things, placing non-edible items in her mouth, grabbing sharp objects, having meltdowns causing self-injury, not having stranger danger, not sleeping through the night, and playing with stove knobs. (AR 235-270.) There is sufficient corroboration for Petitioner’s testimony in the documentary evidence. As an example, Petitioner testified that Recipient does not sleep well: “she’ll go to sleep at 10:00 [pm]. She’ll wake up, I could say, like, at 1:00 [am], and then she’ll stay up all day.” (AR 262.) The social worker’s case assessment narrative corroborates this testimony and states that Recipient “stays awake during the night.” (AR 184.) The case assessment narrative states:

Recipient’s mother reported that she believes Recipient is unaware of her surroundings

. . . . Recipient’s mother also believes Recipient is unable to comprehend right from wrong/danger. Recipient’s mother expressed that she believes Recipient will go with anyone who grabs her hand. . . .

(AR 184.) The Multi-Disciplinary Psycho-Education Evaluation states that Recipient’s “practical adaptive behaviors including community use, school living, health and safety, and self-care are in the extremely low range and below expectancy when compared to same age peers.” (AR 184.) This evaluation states that Recipient “does elope” and “is able to elope only if given the opportunity.” (Ibid.) Recipient’s IEP states that Petitioner reported concerns about Recipient’s “aggressiveness” and that she “is destructive.” (Ibid.) In form SOC 825, prepared shortly after the home visit with the social worker, Petitioner reported that Recipient “lack[s] understanding of what is safe to eat as she occasionally plays with and puts feces in her mouth, she opens sliding doors, climbs chairs and cabinets, touches the stove not knowing it’s temperature, opens the refrigerator and puts any item in her mouth.” (AR 185.)

Weighing the evidence, the court credits Petitioner’s testimony that Recipient is likely to engage in potentially dangerous activities and that there is a need for 24-hour supervision. The court also finds sufficient corroboration of this testimony in the documentary evidence, including the SOC 821 prepared by Recipient’s pediatrician and in the SOC 825 prepared by Petitioner shortly after the social worker visit. Accordingly, the court finds that the weight of the evidence does not support Respondent’s findings that Recipient is not entitled to protective supervision. (AR 27-28.)

a. The weight of the evidence does not support Respondent’s findings that Recipient is not entitled to personal care services for laundry, dressing, and bathing, oral hygiene, and grooming.

b. The weight of the evidence does not support Respondent’s finding that Recipient is not entitled to protective supervision.

c. The weight of the evidence does, in fact, support Respondent’s finding that Recipient is not entitled to personal care services for feeding.

3. The court will issue a writ directing Respondent to set aside those findings and reconsider the case in light of the court’s opinion and judgment. (Code Civ. Proc. § 1094.5(f).) This order “shall not limit or control in any way the discretion legally vested in the respondent.” (Ibid.)

4. The court substitutes Jennifer Troia for the former director, Kimberly Johnson, and orders the clerk to update the docket.

[1] Bathing, oral hygiene, and grooming are treated as a single personal care service in the Notice of Action (AR 113) and Respondent’s decision (AR 9-10).

[2] Protective supervision is not authorized: (1) To prevent or control anti-social or aggressive recipient behavior; and (2) To guard against deliberate self-destructive behavior, such as suicide, or when an individual knowingly intends to harm himself/herself. (See MPP section 30-757.172; AR 22.) Unlike the social worker, Respondent did not specifically find that the head banging was excluded for either of these reasons. (See AR 10-14, 29.) Regardless, exercising its independent judgment, the court finds that Recipient’s potentially dangerous activities are not excluded under section 30-757.172.