Seth R. v. Lightbourne CA4/1

Filed 3/15/21 Seth R. v. Lightbourne CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SETH R., D077008
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2018-
00045021-CU-WM-CTL)
WILL LIGHTBOURNE, as Director of
Department of Social Services, etc.
Defendant and Respondent.
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, 229
1 Further statutory references are to the Welfare and Institutions Code
unless otherwise specified.
2
Cal.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 and
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report 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.
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DISCUSSION
I
STANDARD 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.)
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II
ASSESSMENT 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 affirmative
2 The physician’s statement is relevant but not dispositive. (§ MPP 30-
757.173(a)(3).)
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evidence that the court failed to consider the degree of cognitive impairment
in Seth’s memory, orientation and judgment.
III
APPLICATION OF CORRECT LEGAL STANDARDS
Seth contends that the trial court applied the regulations incorrectly in
two respects: it failed to consider Seth’s propensity for injury, hazard or
accident if an adult were not always present; and it incorrectly interpreted
the need for 24-hour supervision.
A. Absence of an Adult
IHSS services are provided so that the elderly and disabled can remain
safely in their homes alone. “Supportive services shall include . . . protective
supervision . . . which make[s] it possible for the recipient to establish and
maintain an independent living arrangement.” (§ 12300, subd. (b), emphasis
added; Miller, supra, 148 Cal.App.3d at p. 878.)
The record does not support Seth’s contention that the court failed to
consider Seth’s propensity for injury, hazard or accident if an adult were not
always present. We presume that the court understood and followed the law
in considering Seth’s risk of causing injury, hazard or accident to himself if
living by himself. (Winternitz, supra, 235 Cal.App.4th at pp. 653–654.)
The primary present dangers to Seth were breaking bones from
physical recreation and being taken advantage of by others asking for
money.3 Both dangers result from independent, self-directed behavior. They
are not caused by the cognitive inability to control normal activities or by the
lack of awareness of his being and conduct. (See Miller, supra, 148
Cal.App.3d at p. 869; Marshall, supra, 17 Cal.App.4th at p. 1852.) Further,
3 We agree with Seth that being taken advantage of by others is not anti-
social behavior, as characterized by the ALJ.
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Mother could protect Seth from rashly giving money away without being
physically present because she controlled his money. Protective supervision
did not prevent Seth’s risky skateboarding. The ALJ also noted that Seth
had no protective supervision while at school, or later in his vocational
training.
Seth has not shown that the trial court assessed Seth’s propensity for
causing injury, hazard or accident to himself only when Seth had adult
supervision. Seth has not rebutted the presumption that the court knew and
followed the correct law. (Winternitz, supra, 235 Cal.App.4th at pp. 653–654.)
Further, Seth has not shown how the decision would be any different if, as he
claims, the court had assessed his needs in the absence of Mother. All the
dangerous activities occurred while Seth was under protective supervision.
Seth has the burden of showing error. (Linton, supra, 15 Cal.App.5th at p.
1224.) “[N[o error warrants reversal unless the appellant can show injury
from the error.” (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266,
286 (City of Santa Maria).)
B. Interpretation of 24-Hour Supervision
Seth also argues that the trial court misinterpreted the requirement of
24-hour supervision to mean that someone must be constantly intervening to
prevent a person from engaging in potentially dangerous behaviors. He
interprets “constant” to mean intervention, not observation. Seth has
provided neither legal analysis nor citation to the record supporting this
claim. His single record citation is to a portion of the ALJ’s decision in which
she stated that Seth had not shown the need for 24-hour supervision because
he had no individual supervision while at school; he did not have constant
supervision at his vocational program; and he was able to stay safely at home
alone for short periods of time. We may and do “disregard conclusory
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arguments that are not supported by pertinent legal authority or fail to
disclose the reasoning by which the appellant reached the conclusions he
wants us to adopt.” (City of Santa Maria, supra, 211 Cal.App.4th at p. 287.)
IV
NONSELF-DIRECTING
Seth claims the court erred as a matter of law because it required that
he be nonself-directing to receive protective supervision. Seth contends that
this is not a separate, stand-alone requirement for protective supervision
services. He argues that because the Department’s regulations provide
protective supervision services for “nonself-directing, confused, mentally
impaired, or mentally ill persons only” (MPP § 30-757.17, emphasis added), a
person with any one of those characteristics is eligible for protective
supervision. He contends, as a corollary, that the trial court followed an
“unlawful, underground” county regulation in determining that being
nonself-directed was a separate requirement.
The requirement that a recipient be nonself-directing was added by
case law that the trial court, and we, follow. (See Marshall, supra, 17
Cal.App.4th at p. 1852; Calderon, supra, 45 Cal.App.4th at p. 616.)
“Nonself-directing” people are those who are not aware of their physical
or mental problems and who ordinarily cannot discern the risks or dangers of
their behavior. (Marshall, supra, 17 Cal.App.4th at p. 1852.) They cannot
protect themselves from harm, either because they are self-destructive or
they lack the cognitive ability to understand and avoid normal potential
hazards, such as “playing with matches, immersing electrical appliances in
water, or wandering away from home.” (Id. at pp. 1846–1847; Miller, supra,
148 Cal.App.3d at p. 869.) Protective supervision is for those so lacking in
situational and self-awareness that they cannot keep themselves safe in a
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home unattended. We stated in Marshall that “it is permissible to limit the
in-home supportive service denoted as ‘protective supervision’ to only those
disabled people who are so unaware of their being and conduct as to require
nonmedical oversight.” (Marshall, at p. 1853.) The court in Calderon ruled
that being mentally impaired, even severely impaired, was not sufficient in
itself to warrant protective supervision. (Calderon, supra, 45 Cal.App.4th at
p. 616.) The court denied protective services to an adult who had the
cognitive ability of a one year old, but was not able to harm himself if left
alone because he was bedridden and could not move his head, arms or legs.
(Id. at pp. 610 [facts], 616–617 [ruling].) The Calderon court stated that
“protective 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.” (Id. at p. 616.) The court
here had to look beyond Seth’s admitted mental impairments to determine if
he was so unaware of himself that he would be unable to protect himself from
self-harm, i.e., if he were nonself-directing. (Marshall, at p. 1853; Calderon,
at p. 616.)
The trial court followed the law as stated in Marshall and Calderon. It
interpreted those cases independently and concluded that “both of these cases
held that nonself-direction is a requirement for supervision services,” citing
Marshall, supra, 17 Cal.App.4th at p. 1843, and Calderon, supra, 45
Cal.App.4th at p. 616. The All-County Letter (ACL) No. 15-25 similarly
states that its policy that a recipient had to be nonself-directing to be eligible
for protective supervision services was based on the court rulings in Marshall
and Calderon. Upon de novo review, we agree with the interpretation of
Marshall and Calderon by both the trial court and the Department. Seth had
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to be nonself-directing to be eligible for protective supervision services.
(Marshall, at p. 1843; Calderon, at p. 616.)
V
SUBSTANTIAL EVIDENCE SUPPORTS THE COURT’S DECISION
Seth contends that the trial court’s decision, and the ALJ’s decision on
which it is based, were not supported by substantial evidence.
The court applied the correct standards when reviewing the
administrative record. It stated that it could accord a strong presumption of
correctness to the administrative findings, but it was required to exercise its
independent judgment on the facts and the law. (LaGrone v. City of Oakland
(2011) 202 Cal.App.4th 932, 940; Norasingh, supra, 229 Cal.App.4th at p.
752.) The court reviewed the evidence in the administrative record and
determined, in its independent judgment, that the ALJ’s “findings were
supported by substantial evidence, and . . . her conclusions were reasonable
in view of the broad statutory discretion conferred upon her.” We review the
court’s factual decision for substantial evidence. (Norasingh, supra, 229
Cal.App.4th at p. 753.)
Seth argues that the Department did not show a change in his mental
impairments from 2013, when protective supervision was approved, until
2017, when protective supervision was terminated. The record does not
contain facts showing why Seth was eligible for protective supervision in
2013. The assessment in 2013 was that he did not need protective services.
The Department’s stipulation to resolve the legal proceedings did not contain
a factual basis for the protective services.
In any event, past benefits are relevant when reassessing need, but
eligibility and need at the time of reassessment are dispositive. (Norasingh,
supra, 229 Cal.App.4th at pp. 754–755.) There would be no need for
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reassessment if people’s abilities and needs did not change over time,
including people with mental impairments. (See MPP §§ 30–761.13, 30–
761.212 [yearly reassessments required].)
The court determined that the ALJ’s denial of protective supervision
services was supported by substantial evidence. The ALJ found that Seth
was self-directing because he made independent judgments, such as
graduating from high school, attending a vocational program, and choosing
not to take medication that inhibited his interactions with others. He wanted
to live independently and knew the steps necessary to accomplish that goal.
The present dangers to Seth were the result of self-directing behavior.
When asked about Seth’s potentially dangerous actions, Mother said only
that he jumped off stairs too much when skateboarding. Mother said Seth
would let strangers into the house because he was very trusting. Seth had a
tendency to be taken advantage of in social situations.4 He would freely give
money to acquaintances who asked for it. Seth’s long-term doctor said that
he was not aware of any injury or accident that Seth had suffered due to
impaired memory, orientation, or judgment. The doctor said that the
primary danger that Seth faced as a result of his mental impairments was his
lack of “social awareness for victimization or being taken advantage of by
others.”
The ALJ found no evidence of dangers caused by nonself-directing
behavior. She found unsubstantiated Mother’s claim that Seth had
inadvertently started fires and burned pots in the kitchen, because Mother
did not report these actions when the social worker asked her about dangers
in 2017. Also, there were many inconsistencies in Mother’s testimony.
4 We agree with Seth that being taken advantage of by others is not anti-
social behavior, as characterized by the ALJ.
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Mother said that she was encouraging Seth to learn to drive, but that would
be far more dangerous than using a stove and microwave. Mother said that
Seth’s use of the computer was limited, but she also told the
neuropsychologist that she had to intervene to prevent Seth from sending
money to an online acquaintance. She feared he would get lost or disoriented
if he left the house on his own, but said that he rarely left the house on his
own initiative. There was no evidence that Seth had ever wandered away
from home and gotten lost. Finally, Mother claimed that Seth was always
supervised by professionals when he was not with her, but she also said that
Seth had sex with his girlfriend outside the vocational training facility,
indicating that he was not closely supervised there.
Seth contends the court did not consider evidence that Seth started
fires in the kitchen while trying to cook; ate plastic; and was raped by a
neighbor boy. These all occurred when Seth was 13 or younger. Mother said
in 2013 that Seth had started a fire in the microwave and he chewed on
plastic cups when drinking from them. When he was 11 years old, Seth was
raped by a neighbor boy he thought was a friend. There was no evidence that
these behaviors were still occurring when Seth was 17. As noted by the social
worker, Mother did not mention these dangers when asked in 2017 how Seth
was a danger to himself. Seth argues that he could wander off and get lost,
but there were no incidents of his wandering away from home or school. The
only recent danger described by Mother was opening the door to a stranger.
This danger, however, was the result of self-directing behavior and did not
create eligibility for protective supervision.
Seth claims that the ALJ discounted Mother’s testimony. There were
many inconsistencies in Mother’s testimony that the ALJ pointed out.
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Credibility of the witnesses is a matter for the trier of fact to decide, and we
do not reweigh those judgments. (Norasingh, supra, 229 Cal.App.4th at
p. 753.)
Substantial evidence supports the trial court’s determination that Seth
did not need protective supervision 24 hours per day to prevent him from
causing injury, harm or accident to himself due to his mental impairments.
Seth made independent decisions, was aware of himself and his
surroundings, had control over normal activities, and thus was not likely to
cause injury, hazard or accident to himself as a result of his mental
impairments. (Norasingh, supra, 229 Cal.App.4th at p. 753.) Seth has not
borne his burden of showing that the court’s findings, based on its review of
the administrative record, were contrary to the weight of the evidence or
lacking in evidentiary support. (Id. at p. 752.)
DISPOSITION
The judgment is affirmed. Costs to be awarded to respondent.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
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