In re Jesse S. ( 2017 )

Filed 6/7/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re JESSE S., a Person Coming Under the
Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES
AGENCY,
G054169
Plaintiff and Respondent,
(Super. Ct. No. 16NP0059)
v.
OPINION
JESSE S.,
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Gary L.
Moorhead, Judge. Affirmed.
Marsha F. Levine, under appointment by the Court of Appeal, for
Defendant and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre,
Deputies County Counsel, for Plaintiff and Respondent.
* * *
I. INTRODUCTION
This is an unusual case. It is unusual in the nature of the relief sought and
even more unusual in our inability to provide that relief, even though we think it
warranted. We publish our opinion in the hope the Legislature will either change the law
or – by reconsidering it and leaving it unchanged – reassure us that the present system is
what they intended.
About four months before his 20th birthday in 2016, appellant Jesse S.
filed, in propria persona, a request under section 388.1 of the Welfare and Institutions
Code to return to juvenile court jurisdiction and the foster care system.1 His reason was
that the couple who adopted him the day before his 18th birthday were no longer
supporting him, even though they were receiving payments on his behalf from
California’s Adoption Assistance Program (AAP). (§ 16115 et seq.). The judge denied
the request, noting that under the literal language of section 388.1 the very fact the couple
were still receiving AAP payments on Jesse’s behalf precluded Jesse from reentry into
the juvenile dependency system.
We affirm, though reluctantly. Jesse has pointed out an anomaly in section
388.1 that the Legislature might want to address. The trial judge read current section
388.1, subdivision (a)(4), to mean exactly what it says: A nonminor between 18 and 21
is eligible for reentry into the juvenile dependency and foster care system only if his or
her adoptive parents no longer provide ongoing support to that nonminor and also no
longer collect AAP benefits on behalf of that minor.2 Since there was no question Jesse’s
1 All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
2 Subdivision (a) of the statute provides in pertinent part: “(a) On and after January 1, 2014, a
nonminor who has not attained 21 years of age may petition the court in which he or she was previously found to be
a dependent or delinquent child of the juvenile court for a hearing to determine whether to assume dependency
jurisdiction over the nonminor, if he or she meets any of the following descriptions: [¶] . . . [¶] [categories (1) to (3)
not applicable to this case]: (4) He or she is a nonminor who received adoption assistance payments after attaining
18 years of age pursuant to Chapter 2.1 (commencing with Section 16115) of Part 4 of Division 9 and his or her
adoptive parent or parents no longer provide ongoing support to, and no longer receive benefits on behalf of, the
nonminor after the nonminor attained 18 years of age, but before he or she attains 21 years of age.” (Italics added.)
2
adoptive parents were still collecting adoption assistance program payments on Jesse’s
behalf, the judge was forced to conclude Jesse was not eligible for reentry under the
statute.
We agree with Jesse’s point that the Legislature probably did not intend a
former foster youth’s reentry in the dependency system to depend on the glacial
bureaucratic processes which govern termination of AAP payments to adoptive parents
no longer supporting adopted ex-foster care youth. That said, while the literal application
of the statute may yield an anomalous and unintended result in cases like Jesse’s, those
results are not so anomalous that we can accept Jesse’s invitation to invoke the common
law absurdity rule to delete what the Legislature plainly included when it drafted section
388.1. (See Code Civ. Proc., § 1858.) The problem requires a legislative fix if there is to
be one.
II. FACTS
Jesse was born in late 1996. He entered the juvenile dependency system at
age 12. He and his younger brother and sister had been living in a motel room when his
biological parents turned to drugs. The last time Jesse saw his natural mother she was
“behind a glass window in jail.”
Around age 16, Jesse was placed in a foster home with a couple who
adopted him the day before he turned 18. As a result of that adoption, the couple began
receiving payments through a state program known as the Adoptive Assistance Program
or AAP. (See § 16115 et seq.) In August 2015, Jesse moved out of their home to go to
college in San Francisco. That was the last time he lived with his adoptive parents.
As to the circumstances of Jesse’s last-minute adoption, the appellate
record reflects two very divergent points of view. The adoptive parents say they were
reluctant to adopt because they thought Jesse might be able to access better services
without adoption. They say it was Jesse who insisted they adopt him.
3
Jesse recalls it differently. He says he was “rushed and pressured” into the
adoption. From his standpoint – that is, at least as he saw things at age 19 in August
2016 when he initiated this case – the adoption had been a bad fit: “It seemed my
adoptive parents were only capable of manipulation and judging me. When I experienced
any type of failure or struggle, they would become angry and belittle me and we didn’t
celebrate my successes.” He says he felt too afraid to speak up about this during the
period leading to his adoption.
At any rate, an estrangement developed between Jesse and his adoptive
parents during the last year he lived with them – an estrangement that worsened during
his first semester of college. According to his adoptive parents, Jesse was caught
smoking marijuana at home and failed subsequent drug tests. His adoptive parents
supplied him with a reliable car, but Jesse totaled it when he had an accident while
texting.
Despite these peccadilloes, his adoptive parents were proud of sending him
off to college to study radio and television production. But when they visited him in San
Francisco his first semester, they found he had changed. Jesse had acquired a roommate
who wasn’t enrolled in college, and that roommate had apparently been a bad influence
on him. Jesse had become “destructive and mean.” He had been “asked to leave
college.” He sent his adoptive parents rude emails. They offered to provide therapy for
him, but he declined it, and they concluded he had “chemical dependency issues.”
By August 2016, the estrangement had reached the point where Jesse
preferred to be homeless rather than return to his adoptive parents. However, he
connected with a private foundation that arranged to find him accommodation in a private
home, free of charge. The foundation also supplied him with food, toiletries and
clothing. According to Jesse, his adoptive parents were “not providing any type of
meaningful support,” but we must add that Jesse had unilaterally severed any such
support. He was working as a busser and host at a Santa Ana restaurant and had some
4
money of his own. While his adoptive parents had supplied him with a cell phone and
were providing medical and dental insurance, Jesse was using his own money to pay for
another cell phone, and he had also made arrangements to be covered on publicly
supplied medical and dental insurance under Medi-Cal and Denti-Cal.
On August 9, 2016, Jesse filed a formal JV-468 request to return to
juvenile court jurisdiction and foster care. The trial judge got to the human heart of the
matter in the course of the hearing held October 2016. He wanted to know whether
Jesse’s adoptive parents would take him back. Jesse’s counsel said the possibility of his
returning was never even considered given the “strained” relationship that had developed
with his adoptive parents.
The Orange County Social Services Agency was not at all receptive to the
idea of taking Jesse back into the dependency system. They took the position that
because (a) Jesse’s adoptive parents were receiving AAP payments and (b) the agency
was required to take the adoptive parents word for it that they were supporting him,3
Jesse was automatically ineligible for reentry into the dependency system.
The trial judge was not unsympathetic to the Catch-22 in which Jesse found
himself. On the one hand, it appeared he actually was self-supporting and not receiving
any ongoing support from his adoptive parents. On the other hand, the statute was plain
that if those parents were receiving AAP payments, Jesse’s request had to be denied. The
“law on its face,” said the trial judge, was “clear” that Jesse was “not entitled to reenter
the system.” The best the judge could do was to authorize conjoint therapy for Jesse and
his adoptive parents in the hope of some sort of reconciliation – likely a futile order, but
3 County social workers had checked with a program and policy analyst at the state Department of
Social Services who told them that adoptive parents do not have to document how AAP funds are used; the
department’s policy is to take the parents’ word for it.
5
no less admirable – and deny Jesse’s request without prejudice. Jesse timely filed this
appeal from the order denying his section 388.1 request.4
III. DISCUSSION
Jesse’s predicament can be traced to the way two separate but related state
programs are structured. One is California’s Adoption Assistance Program (AAP) which
provides parents who adopt children in the foster care system an adoption subsidy in the
form of AAP payments.5 California has had some form of adoption subsidy since the late
1960’s. (See Stats. 1968, § 1, ch. 1322, pp. 2498-2499 [enacting sections 16115 through
16123].)
From the beginning, the AAP program was intended to be revenue neutral.
The theory was that money that might otherwise be spent on children’s foster care would
be the source of the adoption subsidy. (See Stats. 1968, § 1, ch. 1322, p. 2499 [enacting
former § 16123].6) Revenue neutrality remains both the statutory and regulatory goal of
the AAP program to this day.7
The other program, to which the enactment of section 388.1 may ultimately
be traced, is the outgrowth of federal legislation in 2008, known as the Fostering
Connections to Success and Increasing Adoptions Act of 2008 (Pub.L. No. 110–351 (Oct.
4 The order is appealable under section 395, subdivision (a)(1): “A judgment in a proceeding under
Section 300 may be appealed in the same manner as any final judgment, and any subsequent order may be appealed
as an order after judgment.”
5 The Legislature itself refers to AAP payments as an adoption “subsidy” in section 16120,
subdivision (c).
6 As first enacted, former section 16123, provided: “It is not the intent of this act to increase
expenditures but to provide for payments to adoptive parents in the same way that such persons would be eligible to
receive aid payments if they were to apply for a boardinghome license.” (Stats. 1968, § 2, ch. 1322, p. 2499.)
7 Section 16115.5 provides: “It is the intent of the Legislature in enacting this chapter to benefit
children residing in foster homes by providing the stability and security of permanent homes, and in so doing,
achieve a reduction in foster home care. It is not the intent of this chapter to increase expenditures but to provide for
payments to adoptive parents to enable them to meet the needs of children who meet the criteria established in
Sections 16116 , 16120, and 16121.”
Likewise, section 35333(c) of title 22 of the California Code of Regulations provides: “The
responsible public agency in consultation with the financially responsible county, if different from the agency, shall
determine the maximum state-approved foster care maintenance payment that the child would have received in a
foster family home if the child had remained in foster care.” (Italics added.) All further citations to section 35333
are to title 22 of that Code.
6
7, 2008) 122 Stat. 3949). The federal act arose out of the widespread perception that
children who have grown up in foster care have disproportionate difficulty in
transitioning to adulthood. (See In re K.L. (2012) 210 Cal. App. 4th 632, 637 [“Before
2008, youths in the foster care system aged out of the system when they turned 18,
leading to an epidemic of emancipated youths without the skills and resources to become
productive members of society.”]; Boyer, Foster Care Reentry Laws: Mending the Safety
Net for Emerging Adults in the Transition to Independence (2016) 88 Temp. L.Rev. 837,
[noting “prevalence of adverse outcomes for foster youth exiting care to independence”];
Shin, A Saving Grace? The Impact of the Fostering Connections to Success and
Increasing Adoptions Act on America’s Older Foster Youth (2012) 9 Hastings Race &
Poverty L.J. 133, 134 [“The majority of children who stay in the foster care system long-
term have at least one fact in common: they are usually ill-prepared to live self-sufficient
and independent lives after they are cut off from the foster care system at the age of
eighteen.”].) California took advantage of the federal act in 2010, by passing the
California Fostering Connections to Success Act, often referred to as “AB 12.”
AB 12 is a comprehensive piece of legislation. The Legislative Counsel’s
Digest alone runs to five pages of dense print in volume 2 of West’s California Session
Laws for the 2010 Regular Session. (See pp. 2652-2657.) For our purposes, however,
there is but one major take-away: The goal of both the 2008 federal legislation and the
2010 AB 12 state legislation was to ensure services to young people between the ages of
18 and 21 who had been in foster care. (See In re R.G. (2015) 240 Cal. App. 4th
1090, 1092-1093; In re K.L., supra, 210 Cal.App.4th at pp. 637-638; cf. In re A.A. (2016)
243 Cal. App. 4th 765, 773 [discussing nonminor dependent ultimately determined to be
not eligible for AB 12 benefits].)
Welfare and Institutions Code section 388.1 was added to the statutory
scheme in 2013, in Assembly Bill No. 787 (AB 787), the object of which was to make
“technical and clarifying” changes to AB 12. (See Assem. Appropriations Com. Analysis
7
of Assem. Bill No. 787 (Mar. 19, 2013).) As manifested in section 388.1, AB 787 was
intended to “Allow[] re-entry into nonminor dependency status for former nonminor
dependents (NMDs) who reached permanency, but whose guardian, relative or adoptive
parent died before their 21st birthday.” (Ibid.)8
Which brings us to the anomaly which is at the center of Jesse’s appeal. A
situation such as the case at bar is a beggar’s crossroads never intended by anyone. AAP
money is being spent on behalf of a youth between 18 and 21, but none of that money is
helping him transition to adulthood.
The social services agency points to certain safeguards currently in the
AAP statutory scheme, the main one being the possibility of recoupment of
overpayments when adoptive parents are no longer supporting the young person on
whose behalf the payments are being made. (§ 16121.05, subd. (a).9) And there is,
indeed, such a possibility. That helps the state, but does nothing for Jesse. And there is a
time-lag inherent in the system that works to the potential detriment of all young people
in Jesse’s shoes.
Both the recoupment statute (§ 16121.05, subdivision (c)10) and a
regulation (§ 35333(g)(1)(C)11) provide that after AAP payments are established, the
8 In this regard section 16120 contemplates using section 388.1 to allow an ex-foster youth back
into the dependency system based on the death of the adoptive parents, but makes no provision for such reentry
based on a discontinuation of support from adoptive parents.
9 “The department or county adoption agency may recover any overpayments of financial assistance
under the Adoption Assistance Program, and shall develop regulations that establish the means to recoup them,
including an appropriate notice of action and appeal rights, when the department either [sic: “any” was probably
intended] of the following applies: [¶] (1) The adoptive parents are no longer legally responsible for the support of
the child. [¶] (2) The child is no longer receiving support from the adoptive family. [¶] (3) The adoptive family has
committed fraud in its application for, or reassessment of, the adoption assistance.” (Italics added.)
10 Subdivision (c) provides in pertinent part: “The amount and duration of assistance shall not be
changed without the concurrence of the adoptive parents, unless any of the following has occurred: [¶] (1) The
child has attained 18 years of age, or 21 years of age where the child has a mental or physical disability that warrants
the continuation of assistance. [¶] (2) The adoptive parents are no longer legally responsible for the support of the
child. [¶] (3) The child is no longer receiving any support from adoptive parents.” (Italics added.)
8
payments continue on automatically until there is a mandatory reassessment, which may
be an interval as long as two years. (See §16121.05, subd. (c)12; § 35333(g)(1); see also
§16119, subd. (f)13.) Section 35333(g) provides in pertinent part: “A reassessment of the
AAP benefit shall be required every two (2) years beginning from the date of a signed
Adoption Assistance Program Agreement (AD 4320) between the agency and the
adoptive parents. [¶] (1) Once a child is determined eligible to receive AAP, he or she
remains eligible and the subsidy continues unless one of the following occurs: [¶] . . . [¶]
(C) The responsible public agency determines the adoptive parents are no longer
providing support to the child.” (Italics added.)
AAP payments themselves are the product of negotiation and embodied in
an adoption assistance agreement with the prospective adoptive parents (§ 16119, subd.
(d)(1)14; see § 35333(a)) so the agency here stresses that the negotiated agreements are
statutorily required to contain a proviso that requires the adopting family to report
“changes in circumstances that might negatively affect their ability to provide for the
identified needs of the child.” (§ 16120.05.) But that provision is not directed at the
section 388.1 situation. As phrased, it is directed to the adoptive parents’ ability to
provide for identified needs, as distinct from whether they are actually using the
payments to support the youth. On the other hand, the regulation that implements
11 “A reassessment of the AAP benefit shall be required every two (2) years beginning from the date
of a signed Adoption Assistance Program Agreement (AD 4320) between the agency and the adoptive parents. [¶]
(1) Once a child is determined eligible to receive AAP, he or she remains eligible and the subsidy continues unless
one of the following occurs: [¶] (A) The child has attained the age of 18 or 21; [¶] . . . . [¶] (B) The adoptive
parents are no longer legally responsible for the support of the child. [¶] (C) The responsible public agency
determines the adoptive parents are no longer providing support to the child.” (Italics added.)
12 In pertinent part: “The amount and duration of assistance shall not be changed without the
concurrence of the adoptive parents, unless any of the following has occurred: [¶] (1) The child has attained 18
years of age, or 21 years of age where the child has a mental or physical disability that warrants the continuation of
assistance. [¶] (2) The adoptive parents are no longer legally responsible for the support of the child. [¶] (3) The
child is no longer receiving any support from adoptive parents.” (Italics added.)
13 “The department, county adoption agency, or licensed adoption agency shall inform the
prospective adoptive family that the adoptive parents will continue to receive benefits in the agreed upon amount
unless one of the following occurs . . . .” (Italics added.)
14 In pertinent part: “The amount of an adoption assistance cash benefit, if any, shall be a negotiated
amount based upon the needs of the child and the circumstances of the family.”
9
(among other statutes) section 16120.05 – section 35333 – does provide for
discontinuation of AAP payments based on lack of support alone, but the catch is that the
responsible agency must first determine the adoptive parents are “no longer providing
support to the child.” So section 16121.05 (the recoupment statute) builds in a time lag
necessitated by due process, by requiring “appropriate notice of action and appeal rights,”
when the department determines the child is no longer receiving support from the
adoptive family.15 Thus, even under the best and quickest circumstances, a substantial
period – a large chunk out of the life of a young person 18 to 21 trying to get started –
will elapse before the agency or department acts in such a way that the adoptive parents
are no longer receiving AAP parents and thus opens the way for a young person’s reentry
into the dependency system. Meanwhile, time ebbs away. Jesse, and others like him, do
not have that kind of time.
That seems a flaw in the statutory scheme. It may be one which, given
budgetary constraints, is unavoidable.16 We do not have the expertise to tell. Our task in
this appeal is to evaluate whether the result is so anomalous as to allow us to rewrite the
requirements. It is not. We cannot step in – not with a decent respect for separation of
powers.
15 Section 16121.05 subdivision (a) provides in pertinent part: “The department or county adoption
agency may recover any overpayments of financial assistance under the Adoption Assistance Program, and shall
develop regulations that establish the means to recoup them, including an appropriate notice of action and appeal
rights, when the department determines either of the following applies: [¶] . . . [¶] (2) The child is no longer
receiving support from the adoptive family. . . .”
16 AB 885 from the 2015-2016 Regular Session, among other things, was apparently intended to ease
up on the need to first have AAP funds paid to the adoptive parents stop before the ex-foster youth could reenter the
dependency system. To quote from the Senate Rules Committee Bill Analysis for AB 885 of August 16, 2016, as it
proposed to change section 388.1: “This bill: [¶] . . . [¶] (2) Eliminates the requirement that a guardian or adoptive
parent no longer receive payment on behalf of the minor for a court to resume dependency jurisdiction or to receive
aid, among other considerations.”
However, Governor Brown vetoed AB 885, along with a number of other bills, explaining that
they “make changes to a worthy program,” but those changes would require “increased funding” and thus constitute
“end run of the budget process,” and commit the state “to spending an additional $240 million every year.” (See
.)
Whether the Legislature can craft a genuinely revenue neutral change in section 388.1 for young
persons in Jesse’s position is a matter of course that we leave up to it.
10
There are rare times when the gap between what a legislative drafter of
some rule clearly wanted and what ended up on paper is so wide that courts will step in to
correct the drafting error. (E.g., Amalgamated Trans. Loc. 1309 v. Laidlaw Trans. Ser.
(9th Cir. 2006) 435 F.3d 1140, 1145 [“not less than 7 days” was obviously intended to
mean “not more than 7 days”].)
And there are times when what ended up on paper is simply too unjust and
absurd to be enforced by the judiciary. An excellent discussion of the problem of
absurdity in the legislative drafting of statutes is to be found in Unzueta v. Ocean View
School Dist. (1992) 6 Cal. App. 4th 1689 (Unzueta), where the majority of the court found
one aspect of a statute to be absurd and another not to be, while the dissenter found both
aspects absurd.
However, in Unzueta both the majority and dissenting opinions stressed the
extreme rarity of occasions when the judiciary should apply the absurdity rule. “Each
time the judiciary utilizes the ‘absurd result’ rule, a little piece is stripped from the
written rule of law and confidence in legislative enactments is lessened.” (See Unzueta,
supra, 6 Cal.App.4th at p. 1699.) “In most cases, it is appropriate for courts to literally
interpret statutes. The result that necessarily flows from clear, unambiguous language is
almost always the ‘correct result,’ irrespective of whether the judge thinks it is wise or
unwise.” (Id. at p. 1703 (dis. opn. of Gilbert, J.).)
In the case before us, what we perceive as an anomalous result dictated by
the literal language of section 388.1 does not reach the level of absurdity necessary for us
to accept Jesse’s invitation to change that result. The two programs have different foci.
AAP payments are provided by the Legislature to encourage, indeed subsidize, the
adoption of children in foster care by adoptive families, including children well below
age 18. Reentry into the dependency system under section 388.1 focuses on just young
people between 18 and 21 who have been ex-foster children.
11
The Legislature may not have wanted to make reentry automatic on an ex-
foster child’s allegation he or she wasn’t being supported with AAP payments. Reentry
imposes on social service agencies extra overhead costs in the form of additional
administrative and supervisorial duties. The Legislature may also have been willing to
put up with bureaucratic time lags in ascertaining the absence of support from adoptive
parents, since there is still the backstop of eventual recoupment. And even where
adoptive parents who are receiving AAP payments may not be actually supporting the ex-
foster child, they might still be legally responsible for the child’s support. Thus while
section 388.1 may yield anomalous results in certain ways, it can hardly be said to be
without rational justification.
This appears to be a case without villains. Jesse’s declaration shows he
wants to get on with his life, and wants to resume his education at a local community
college; meanwhile he is working. The adoptive parents have offered as much support as
appears to them reasonable, given that Jesse does not want to take their advice and/or
return home.
That is all we can say. It is up to the Legislature and Governor whether
more need be said.
IV. DISPOSITION
The order appealed from is affirmed.
BEDSWORTH, ACTING P. J.
WE CONCUR:
FYBEL, J.
IKOLA, J.
12