Seth R. v. Lightbourne

SETH R., Plaintiff and Appellant, v. WILL LIGHTBOURNE,as Director of Department of Social Services, etc. Defendant and Respondent.

D077008

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

March 15, 2021

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 37-2018-00045021-CU-WM-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Richard E. L. Strauss, Judge. Affirmed.

Charles Wolfinger, for Plaintiff and Appellant.

Xavier Becerra, Attorney General, Cheryl L. Feiner, Assistant Attorney General, Richard T. Waldow, Gregory D. Brown and Julie T. Trinh, Deputy Attorneys General, for Defendant and Respondent.

Plaintiff Seth R. appeals from a judgment that denied him protective supervision benefits from the In-Home Supportive Services program (IHSS). Substantial evidence supports the court's ruling. The court did not apply the law incorrectly, as plaintiff contends. We affirm.

PROTECTIVE SUPERVISION BENEFITS OVERVIEW

IHSS is a program that provides in-home services to help elderly and disabled individuals remain safely in their homes. (Welf. & Inst. Code,¹ § 12300 et seq.) Respondent Director of the California Department of Social Services (Department) is responsible for overseeing IHSS in compliance with state and federal laws. County social service departments administer the program under the Department's general supervision, process applications, and determine which supportive services a recipient needs. (§ 12301.1; see § 12309; Basden v. Wagner (2010) 181 Cal.App.4th 929, 934 (Basden).) The county has broad discretion in determining eligibility for public services, if the discretion is " 'exercised in a manner that is consistent with—and that furthers the objectives of—the state statutes.' " (McCormick v. County of Alameda (2011) 193 Cal.App.4th 201, 210 (McCormick).) Eligibility for IHSS benefits must be reassessed on an annual basis. (Cal. Dept. Social Services, Manual of Policies and Procedures (MPP) §§ 30-761.13, 30-761.212; see Norasingh v. Lightbourne (2014) 229 Cal.App.4th 740, 754 (Norasingh).)

Protective supervision consists of "observing recipient behavior and intervening as appropriate in order to safeguard the recipient against injury, hazard or accident." (MPP § 30-757.17; see Marshall v. McMahon (1993) 17 Cal.App.4th 1841, 1846-1847 (Marshall).) Recipients are eligible only if they are "nonself-directing, confused, mentally impaired, or mentally ill" (MPP § 30-757.171), and 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)). (See Calderon v. Anderson (1996) 45 Cal.App.4th 607, 614 (Calderon); Norasingh, supra, 229Cal.App.4th at p. 745.) The service is provided for recipients who "cannot protect themselves from injury. Some are self-destructive. . . . Others cannot control normal but potentially hazardous activities such as cooking or smoking a cigarette." (Miller v. Woods (1983) 148 Cal.App.3d 862, 869 (Miller), disapproved on other grounds in Noel v. Thrifty Payless (2019) 7 Cal.5th 955, 986, fn. 15.) Protective supervision is only for those mentally impaired persons "who are so unaware of their being and conduct as to require nonmedical oversight, akin to baby-sitting; . . . similar constant watchfulness of alert but otherwise endangered disabled people might be beneficial," but the Department is not required to provide protective supervision to those who are aware of their being and conduct. (Marshall, at p. 1853.)

BACKGROUND

Seth has autism spectrum disorder, attention deficit hyperactivity disorder, and Klinefelter's syndrome. He was first assessed for IHSS services in 2013, when he was 13 years old. The county determined that he was not eligible for services, but, after Seth sought review in the superior court, the Department stipulated that he was eligible for protective supervision retroactively to 2013. His mother (Mother), with whom he lives, has provided protective supervision services for Seth since then.

A county social worker conducted an annual reassessment in March 2017 and determined that Seth, who was then 17 years old, no longer needed protective supervision services. The social worker found that Seth had some mental impairment, but was of sound mind, aware of his surroundings, and could carry on a conversation. He had taught himself how to play guitar, had his own cell phone, was able to use it, and had never lost it. Seth responded appropriately to questions about safety. He said he would walk away andreport the incident if a stranger asked for his wallet. Seth went to school daily. He was in a general education class without a one-on-one aide. He made independent choices about his future. When asked about dangerous behaviors, Mother said only that Seth performed too many jumps when he went skateboarding, an independent activity. The social worker determined that overall, Seth was "self-directing and not at risk without protective supervision." His memory and orientation were not impaired, but his judgment was severely impaired. The county made a final assessment that Seth was self-directing and did not meet the criteria for protective supervision.

Seth requested an administrative hearing to challenge the decision. After conducting an administrative hearing and considering the voluminous evidence submitted by both parties, the administrative law judge (ALJ) issued a decision finding that Seth was independent and self-directing, was not likely to harm himself in the absence of protective supervision, and did not need protective supervision 24 hours per day. The Department adopted the ALJ's decision.

Seth filed a petition for writ of administrative mandamus, challenging the decision of the Department. After a hearing and independent review of the administrative record, the court found that the ALJ's factual findings were supported by substantial evidence, and her conclusions were reasonable in view of the broad statutory discretion conferred upon her. The court entered judgment in favor of the Department. Seth timely appealed.

DISCUSSION

ISTANDARD OF REVIEW

We review the trial court's factual findings for substantial evidence, resolving all conflicts in favor of the prevailing party. We accept the credibility determinations of the trial court and we do not reweigh the evidence. We affirm the court's order if substantial evidence in the record supports it, even if substantial evidence could have supported a contrary judgment. (Norasingh, supra, 229 Cal.App.4th at p. 753.) " 'We uphold the trial court's findings unless they so lack evidentiary support that they are unreasonable.' [Citation.]" (Ibid.)

We review issues of law de novo. (Norasingh, supra, 229 Cal.App.4th at p. 753.) An administrative agency's interpretation of its governing regulations is entitled to " 'great weight and deference,' " but is not dispositive. (Ibid.; Calderon, supra, 45 Cal.App.4th at pp. 612-613.) We are not bound by the trial court's interpretation of the law and regulations. (Norasingh, at p. 754; Calderon, at p. 612.)

The appellant bears the burden of demonstrating, based on the record, that the trial court committed an error that warrants reversal. (Jameson v. Desta (2018) 5 Cal.5th 594, 609; Linton v. DeSoto Cab Company (2017) 15 Cal.App.5th 1208, 1224 (Linton).) The appellant must establish that the error caused a miscarriage of justice, i.e. that it is reasonably probable that the appellant would have received a more favorable result in the absence of error. (Linton, at p. 1224.) We affirm the court's decision if any ground exists in the record supporting the court's conclusions. (Taylor v. Elliot Turbomachinery, Inc. (2009) 171 Cal.App.4th 564, 573, fn. 5.)

IIASSESSMENT OF SETH'S MEMORY, ORIENTATION AND JUDGMENT

Seth first contends the court failed to comply with the law requiring the court to assess the degree of cognitive impairment in Seth's memory, orientation and judgment, as required by state regulation. (MPP § 30-756.372.) The ALJ discussed this requirement in her decision. She noted the social worker's 2017 assessment that Seth's memory and orientation were not impaired and his judgment was severely impaired. Seth's physician² stated that Seth had no deficiencies in his memory and orientation, and his judgment was severely impaired. The doctor explained that Seth had "mild Autism Spectrum Disorder with normal intellect but still substantially impaired social and adaptive skills . . . requiring consistent supervision for daily living and safety." The doctor was not aware of any injury or accident due to Seth's deficits in memory, orientation or judgment. He explained that Seth "has limited awareness for personal safety particularly with social awareness for victimization or being taken advantage of by others."

The level of impairment of Seth's memory, orientation and judgment were not disputed. The trial court did not specifically mention these categories, but we presume that the court knew and followed the law, in the absence of affirmative proof to the contrary. (Evid. Code, § 664; see In re Marriage of Winternitz (2015) 235 Cal.App.4th 644, 653-654 (Winternitz); Humane Society of U.S. v. Superior Court (2013) 214 Cal.App.4th 1233, 1269.) The court reviewed the record and found that the ALJ's findings, including Seth's degree of impairment of memory, orientation and judgment, were supported by substantial evidence. Seth has not shown any affirmativeevidence that the court failed to consider the degree of cognitive impairment in Seth's memory, orientation and judgment.

IIIAPPLICATION OF CORRECT LEGAL STANDARDS

...