Filed 4/15/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

CALIFORNIA DEPARTMENT 

OF SOCIAL SERVICES, 

 Appellant, 

v.

DAVID MARIN, 

 Respondent. 

2d Civ. No. B287769

(Super. Ct. No. 16CV01163)

(Santa Barbara County)

California’s adoption assistance program (AAP) provides 

financial support to families to facilitate the adoption of special 

needs children who would otherwise remain in long-term foster 

care. AAP monthly payments are negotiated between the 

adoptive parents and the responsible public agency, but are 

limited to the applicable basic foster care maintenance payment 

rate. (Welf. & Inst. Code, § 16119, subd. (d)(1);1 Cal. Code Regs., 

tit. 22, § 35333.) California’s foster care maintenance program 

requires that foster parents be reimbursed for certain costs 

1 All further statutory references are to the Welfare and 

Institutions Code unless otherwise specified. 

 
enumerated by statute. (§ 11460, subd. (b); 42 U.S.C. 

§ 675(4)(A).) 

The United States Court of Appeals for the Ninth Circuit

(Ninth Circuit) upheld a district court’s determination that the 

amount the California Department of Social Services (CDSS) 

pays for foster care maintenance violates federal law because it 

does not cover the statutorily enumerated costs. (California State 

Foster Parent Assn. v. Wagner (9th Cir. 2010) 624 F.3d 974, 978 

(Wagner).) The district court enforced this decision by ordering 

CDSS “to implement [its] new method for determining the rates 

of payments to foster parents that includes consideration of the 

cost factors.” (California State Foster Parent Assn. v. Lightbourne

(N.D. Cal., May 27, 2011, No. C 07-05086 WHA) 2011 U.S.Dist. 

Lexis 57483, *8 (Lightbourne).)

David Marin, who admirably adopted three special needs 

children in 2005, requested an increase in the family’s AAP 

payments based upon Wagner. After his administrative claim 

was denied, Marin petitioned for a writ of mandate, which the 

trial court granted. It ordered that the matter be remanded to 

the CDSS State Hearing Division for an evidentiary hearing to 

assess whether the costs and expenses Marin has incurred in 

raising his three children exceed the AAP payments received 

from CDSS. If so, the court directed CDSS to augment those 

payments from October 21, 2008 to the present. 

CDSS asserts, and we agree, that the foster care 

maintenance payment rate increases mandated by Wagner and 

Lightbourne do not apply retroactively to Marin’s adopted 

children. The California Legislature specifically amended section 

16121 to confirm that initial adoption assistance agreements that 

2
predate Lightbourne are not subject to the new rate structure. 

We reverse the judgment. 

FACTUAL AND PROCEDURAL BACKGROUND

Following the children’s adoptions, CDSS provided Marin’s 

family with AAP benefits. Marin executed the initial adoption 

assistance agreements in December 2004. The agreements 

reflect the amounts and duration of the negotiated benefit and 

are effective until terminated or until a new amended agreement 

is signed. Per regulations, the County of Santa Barbara 

(County), which is the local AAP administrator, utilizes the basic 

age-related foster care maintenance payment rates to set the 

monthly AAP payment for each child. Thus, the County offered, 

and Marin accepted, the maximum age-related, state-approved 

foster care maintenance payment rate for each child. Over the 

years, the family has received rate increases pursuant to 

regulations and the children’s ages. 

In 2007, the California Legislature passed, and the 

Governor approved, Senate Bill No. 84 (SB 84). (See SB 84 

(2007-2008 Reg. Sess.), § 37.) SB 84 added section 16121.01, 

which provided: “Notwithstanding any other provision of law, 

the amount of aid to be paid to an adoptive family for any 

adoption assistance agreement executed prior to October 1, 1992, 

or the foster care maintenance payment based on the age-related, 

state-approved foster family home care rate and any applicable 

specialized care increment that would have been paid to an 

adoptive family for an adoption assistance agreement executed 

prior to January 1, 2008, shall not be adjusted pursuant to the 

rate increase specified in subparagraph (C) of paragraph (1) of 

subdivision (d) of Section 11461 in any subsequent reassessment 

on or after January 1, 2008.” In other words, a child who was 

3
receiving AAP benefits under an initial adoption assistance 

agreement executed prior to January 1, 2008 was not entitled to 

a rate adjustment to reflect the rate increases provided to foster 

parents pursuant to SB 84. 

In 2014, Marin learned of the Wagner decision, which 

ultimately resulted in an increase in the foster care maintenance 

payment rate structure. Citing Wagner, Marin requested that 

the County increase the family’s monthly AAP payments

beginning October 21, 2008, which is when the district court first

determined that CDSS had been setting foster care maintenance 

payment rates without considering statutorily mandated cost 

reimbursement requirements. (See Wagner, supra, 624 F.3d at 

p. 977; Lightbourne, supra, 2011 U.S.Dist. Lexis 57483, at pp. *2-

3.) Marin specifically sought reimbursement for “clothing,” 

“tutoring,” “SAT/ACT preparation,” “college,” “general cost of 

living” and anything else “not related to physical or 

developmental disability.” 

After the County rejected his request, Marin sought and

received a hearing before the CDSS State Hearing Division. The 

assigned administrative law judge (ALJ) denied Marin’s claims, 

finding that the County correctly determined the AAP payment 

rate for each child is “in accordance with the State of California 

AAP rules and regulations.” The ALJ recognized that “[f]or 

initial AAP agreements entered into on or after October 1, 1992 

through December 31, 2007, and the adoption was finalized 

before May 27, 2011, the age-related basic [foster care 

maintenance payment] rates in effect December 31, 2007 are 

used.” 

The trial court granted Marin’s petition for writ of mandate 

challenging the ALJ’s decision. The court acknowledged that 

4
Wagner did not discuss AAP payments, but found that since “the 

Wagner court concluded that foster care benefits paid by [CDSS] 

were insufficient to pay for items necessary to raise children, it 

follows that the same payments under [CDSS’s] adoption 

assistance program are also deficient.” The court noted “[i]t 

makes little sense legally to pay adoptive parents less than foster 

parents when the express goal of the [AAP] is to remove the 

financial disincentive for foster families to adopt.” 

The trial court ordered that the matter be remanded to the 

ALJ for an evidentiary hearing “to determine whether, in raising 

his three children, [Marin] incurred costs and expenses in excess 

of the payments he received from [CDSS].” Assuming Marin did 

incur such costs and expenses, the court directed CDSS to 

“augment his payments from October 21, 2008 to the present, in 

an amount consistent with Wagner.” CDSS appeals. 

DISCUSSION

Standard of Review

“On appeal from the judgment on a petition for writ of 

administrative mandate in a case not involving fundamental 

vested rights, as here, we review the agency’s findings, not the 

superior court’s decision, for substantial evidence.” (Doe v. 

University of Southern California (2018) 28 Cal.App.5th 26, 34; 

see Code Civ. Proc., § 1094.5, subd. (c) [“abuse of discretion is 

established if the court determines that the findings are not 

supported by substantial evidence in the light of the whole 

record”].) “However, insofar as an appeal from an administrative 

mandamus proceeding presents questions of law, our review is de 

novo.” (Telish v. State Personnel Bd. (2015) 234 Cal.App.4th 

1479, 1487; Young v. California Fish and Game Com. (2018) 

24 Cal.App.5th 1178, 1192.) In this regard, an administrative 

5
agency’s interpretation of its governing regulations – such as 

CDSS’s interpretation of AAP statutes and regulations – is 

entitled to “great weight and deference.” (Calderon v. Anderson

(1996) 45 Cal.App.4th 607, 612-613.) 

Statutory and Regulatory Framework

CDSS provides adoption assistance and foster care 

maintenance payments pursuant to federal funding authorized 

by the Adoption Assistance and Child Welfare Act of 1980 (CWA). 

(42 U.S.C. § 670 et seq.) The CWA specifies certain requirements 

for both foster care maintenance payments (id. § 672) and 

adoption assistance payments (id. § 673). The purpose of the 

latter program is to create incentives to encourage the adoption of 

special needs children. (See id. § 670.) Accordingly, a state with 

an approved AAP “shall enter into adoption assistance 

agreements . . . with the adoptive parents of children with special 

needs.” (Id. § 673(a)(1)(A).) “The amount of the [adoption 

assistance] payments . . . shall be determined through agreement 

between the adoptive parents and the State . . . , which shall take 

into consideration the circumstances of the adopting parents and 

the needs of the child being adopted, and may be readjusted 

periodically, with the concurrence of the adopting parents . . . , 

depending upon changes in such circumstances. However, in no 

case may the amount of the adoption assistance payment . . . 

exceed the foster care maintenance payment which would have 

been paid during the period if the child with respect to whom the 

adoption assistance payment is made had been in a foster family 

home.” (Id. § 673(a)(3).) 

Consistent with the CWA, California’s federally approved 

AAP “removes or reduces barriers to the adoption of children who 

otherwise would remain in long-term foster care. The program 

6
provides necessary financial assistance to families who are 

willing and able to assume parental responsibility for [such] 

children but are prevented from doing so by inadequate financial 

resources.” (Cal. Code Regs., tit. 22, § 35325, subd. (a).) The AAP 

benefit is “a negotiated amount based upon the needs of the child 

and the circumstances of the family.” (§ 16119, subd. (d)(1); Cal. 

Code Regs., tit. 22, § 35333.) There is no “means test used to 

determine an adoptive family’s eligibility for the [AAP], or the 

amount of adoption assistance payments.” (§ 16119, subd. (d)(1).) 

Rather, the responsible public agency must advise the adoptive 

parents that the AAP benefit is limited to the age-related, stateapproved foster care maintenance rate and that the benefit “does 

not include payment for any specific good or service, but is 

intended to assist the adoptive parents in meeting the child’s 

needs.” (Cal. Code Regs., tit. 22, § 35333, subds. (a)(3), (a)(5).)

Although the CWA does not contemplate reimbursement of 

certain enumerated costs and expenses incurred by AAP families, 

both federal and California law require that foster care 

maintenance payments “cover the cost of (and the cost of 

providing) food, clothing, shelter, daily supervision, school 

supplies, a child’s personal incidentals, liability insurance with 

respect to a child, reasonable travel to the child’s home for 

visitation, and reasonable travel for the child to remain in the 

school in which the child is enrolled at the time of placement.” 

(42 U.S.C. § 675(4)(A); § 11460, subd. (b).) But these statutes do 

not direct the responsible public agency to reimburse foster 

parents for the actual costs incurred in providing the specified 

items. Rather, because the CWA defines “foster care 

maintenance payments” to mean payments that cover the cost of 

these items, the CWA requires states to consider their costs when 

7
setting rates. As explained in Missouri Child Care Assn. v. 

Martin (W.D. Mo. 2003) 241 F.Supp.2d 1032, the CWA’s “list of 

factors is . . . sufficiently detailed to put the State on notice and to 

permit a court to review whether the State has based its 

reimbursement on those statutory criteria. . . . ¶ . . . At a 

minimum, the State is obligated to have a process for 

determining rates that takes into account the statutory criteria 

mandated by the CWA.” (Id. at pp. 1044-1045.) 

Substantial Evidence and Applicable Law

Support the ALJ’s Decision

CDSS contends the trial court erred by granting Marin’s 

petition for writ of mandate. It claims the court incorrectly 

determined that Marin is entitled to recover the actual costs and 

expenses associated with raising his three adopted children. 

Marin maintains that Wagner supports the court’s decision and 

undermines the ALJ’s findings. As we shall explain, Marin has 

not demonstrated that the new foster care maintenance payment 

rate structure implemented in response to Wagner and 

Lightbourne should result in a retroactive increase in his family’s 

AAP payments. 

In Wagner, the plaintiffs, a group of non-profit 

organizations representing California foster parents, claimed 

that the state’s foster care maintenance payment rates violate 

the requirements of the CWA and its implementing regulations. 

(Wagner, supra, 624 F.3d at pp. 976-977.) They noted that when 

determining its foster care maintenance payment rates, CDSS 

does not consider the actual cost of providing the items 

enumerated in 42 United States Code section 675(4)(A). The 

district court concurred, “finding that the CWA created a federal 

monetary entitlement and that the State violated the Act by 

8
setting rates without considering the CWA’s mandatory cost 

factors.” (Wagner, supra, 624 F.3d at p. 977.) The court granted 

the plaintiffs’ motion for summary judgment. (Ibid.) 

The Ninth Circuit affirmed, noting that the CWA creates “a 

program through which the federal government provides funding 

to states to cover the costs of administering the foster care 

system,” and “requires that participating states use the federal 

funds to reimburse foster parents for identified out-of-pocket 

costs.” (Wagner, supra, 624 F.3d at pp. 977-978.) It agreed with 

the district court that the CWA “establish[es] a presumptively 

enforceable right under [42 United States Code section] 1983 to 

foster care maintenance payments from the State that cover the 

cost of the expenses enumerated in [42 United States Code

section] 675(4)(A),” and that the plaintiffs are entitled to seek 

“redress for inadequate maintenance payments.” (Id. at p. 982.)

Both Marin and the trial court overstate Wagner’s holding. 

The Ninth Circuit did not broadly conclude that “foster care 

benefits paid by [CDSS] were insufficient to pay for items 

necessary to raise children.” It determined the then-existing 

foster care maintenance payment rate structure did not take into 

account the costs enumerated in the CWA, and contemplated that 

CDSS would adjust its rate structure to include those specific 

costs. (Wagner, supra, 624 F.2d at pp. 977-978.) When CDSS 

failed to do so, the plaintiffs sought enforcement in the district 

court. (Lightbourne, supra, 2011 U.S.Dist. Lexis 57483, at pp. *2-

9.) 

The district court noted that California had “commissioned 

a study concerning the method by which it should begin setting 

rates that take into account the cost factors under the CWA.” 

(Lightbourne, supra, 2011 U.S.Dist. Lexis 57483, at p. *3.) After 

9
the study was finished, CDSS developed a new rate methodology 

for foster care maintenance payments, which resulted in rate 

increases. (Ibid.) But CDSS did not implement this new 

methodology. Finding that CDSS had received a full and fair 

opportunity to comply with federal law, the court ordered CDSS 

“to implement [the] new rate structure immediately,” starting 

with the next round of foster care maintenance payment checks. 

(Id. at pp. *4-5.) CDSS complied with this directive. 

Lightbourne did not order CDSS to issue retroactive 

payments to foster parents. Indeed, the plaintiffs did not request 

such relief. Instead, the district court ordered CDSS to 

“implement the rate methodology and specific rates described in 

the . . . submission dated April 8, 2011 (Dkt. No. 166), effective 

immediately.” (Lightbourne, supra, 2011 U.S.Dist. Lexis 57483, 

at p. *9.) The new foster care maintenance payment rate 

structure, which is outlined in Lightbourne, is codified in section

11461, subdivision (g)(1).2

In response to Lightbourne, the California Legislature 

amended section 16121 to recognize the new foster care 

maintenance payment rate structure. (See Assem. Bill No. 106 

(2011-2012 Reg. Sess.), § 67 (AB 106).) It added section 16121, 

subdivision (a)(4), which allows the maximum eligible AAP 

payment rate to equal the new foster care maintenance payment 

rate established pursuant to Lightbourne if (1) the initial 

adoption assistance agreement was executed on or after July 1, 

2 The new rate structure allows for monthly payments of 

$609 for children up to four years old, $660 for children aged 5 to 

8, $695 for children aged 9 to 11, $727 for children aged 12 to 14, 

and $761 for persons aged 15 to 20. (§ 11461, subd. (g)(1); 

Lightbourne, supra, 2011 U.S.Dist. Lexis 57483, at p. *9.) 

10

 
2011 or after the final order was issued in Lightbourne, 

whichever is earlier, or (2) the initial adoption assistance 

agreement was executed before July 1, 2011, or the date specified 

in the final order, whichever is earlier, and the adoption is 

finalized on or after the earlier of July 1, 2011, or that specified 

date. 

Notably, the amended version of section 16121 reiterates, 

consistent with former section 16121.01,3 that for initial adoption 

assistance agreements executed between October 1, 1992 and 

December 31, 2007, the adoptive family will continue to be paid 

an amount based on the child’s needs and the adoptive parents’

circumstances so long as it does not exceed “the basic foster care 

maintenance payment rate structure in effect on December 31, 

2007.” (§ 16121, subd. (a)(1).) Section 16121 also provides that 

for initial adoption assistance agreements executed between 

January 1, 2008 and December 31, 2009, the AAP payment shall 

not exceed the basic foster care maintenance payment rate 

structure in effect on December 31, 2009, and that for initial 

adoption assistance agreements executed between January 1, 

2010 and June 30, 2011, the AAP payment shall not exceed the 

basic foster care maintenance payment rate structure in effect on 

June 30, 2011. (Id., subds. (a)(2), (a)(3).) Hence, by limiting 

application of the new rate structure to initial adoption 

assistance agreements executed on or after July 1, 2011, the 

Legislature expressly chose not to apply Lightbourne 

retroactively. Marin nonetheless maintains he is entitled to 

retroactive relief. 

3 AB 106 repealed section 16121.01. (AB 106 (2011-2012 

Reg. Sess.), § 68.) 

11

 
Schettler v. County of Santa Clara (1977) 74 Cal.App.3d 

990 (Schettler) is instructive. The appellant in that case brought 

an action to recover ad valorem property taxes on imported goods 

he owned in 1972. At that time, the law provided that such goods 

were immune from local taxation. (Id. at p. 995.) The United 

States Supreme Court reversed that law in Michelin Tire Corp. v. 

Wages (1976) 423 U.S. 276 [46 L.Ed.2d 495] (Michelin). 

(Schettler, at p. 995.) 

The California State Board of Equalization applied 

Michelin retroactively, ordering county assessors to levy ad 

valorem property taxes for prior years. (Schettler, supra, 74 

Cal.App.3d at pp. 995-996.) Concerned about the economic 

impact of Michelin’s retroactive application, the California 

Legislature enacted a statute that provided for prospective 

application only. (Id. at p. 996.) An issue on appeal was 

“whether the Legislature was authorized to provide for the 

prospective application of Michelin.” (Id. at p. 997.) 

Schettler acknowledged the general rule that “the 

California Constitution permits an appellate court to restrict an 

overruling decision [to] prospective application if fairness and 

equity are served thereby, even though the prospective 

application of the decision temporarily preserves a mistaken 

interpretation of the law. [Citations.] Even more to the point, 

the California case law [holds] that the Legislature, as well as the 

court, is competent to define the retroactive scope of an 

overruling decision.” (Schettler, supra, 74 Cal.App.3d at pp. 997-

998; accord Forster Shipbuilding Co. v. County of Los Angeles 

(1960) 54 Cal.2d 450, 459 [“Such temporary application of the 

rule of an overruled case may be prescribed by appropriate 

legislation as well as by judicial decision, for the Legislature is no 

12
less competent than the court to evaluate the hardships involved 

and decide whether considerations of fairness and public policy 

warrant the granting of relief”]; Lewis v. City of Hayward (1986) 

177 Cal.App.3d 103, 115 [“Schettler . . . stand[s] for the 

proposition that the Legislature may limit an overruling judicial 

decision to prospective application to avoid unfairness”]; 

Kawasaki Motors Corp. v. County of Orange (1983) 146 

Cal.App.3d 780, 783 [“The California Legislature is . . . competent 

to define the retroactive scope of an overruling decision”].) 

Applying this rule, Schettler concluded the Legislature 

properly availed itself of its legal authority to determine that 

Michelin should not be applied retroactively. (Schettler, supra,

74 Cal.App.3d at p. 999.) The court explained: “The cases 

uniformly hold that the courts should give due weight and 

deference to legislative judgment; and where, as here, the 

findings of the Legislature have a reasonable basis, the question 

of what constitutes a legitimate public purpose or public policy is 

largely one for the Legislature which may not be second-guessed, 

much less disturbed by the reviewing court.” (Ibid.)

Here, the California Legislature decided that CDSS’s new 

foster care maintenance payment rate structure should not be 

applied retroactively to AAP payment recipients. AB 106

confirms the Legislature’s intent to apply the new rate structure 

prospectively only: “This bill, with respect to agreements on or 

after July 1, 2011, would revise Kin-GAP, AFDC-FC, and AAP 

rates, as prescribed, and would annually adjust these rates by the 

percentage changes in the California Necessities Index, and make 

related changes. The bill would authorize implementation of 

these provisions through all-county letters or similar instructions 

from the department until regulations are adopted, as specified.” 

13
(AB 106 (2011-2012 Reg. Sess.), italics added.) The bill also 

appropriated monies from the General Fund to finance the rate 

adjustments. (Ibid.) 

It bears emphasis that neither Wagner nor Lightbourne 

anticipated retroactive application of their holdings. Wagner held 

that the foster care maintenance payment rate structure did not 

comply with federal law, and Lightbourne enforced Wagner by 

requiring CDSS to immediately implement a new foster care 

maintenance payment rate structure in compliance with federal 

law. That was in 2011. There was no suggestion that prior foster 

care maintenance payments must be similarly adjusted, let alone 

that California’s AAP would be affected beginning in 2008. It is 

obvious that retroactive application of the new foster care 

maintenance payment rate structure to both foster care payment 

recipients and adoption assistance payment recipients would be 

difficult to implement and have a significant fiscal impact. But 

the Legislature did not have to consider this impact because 

Lightbourne did not require it. It only directed CDSS to 

implement the new foster care maintenance payment rate 

structure with respect to future payments. The Legislature 

appropriately enacted legislation in direct response to this

holding. 

Marin does not dispute that the County properly calculated 

his family’s AAP payments based upon its understanding of the 

law. His position is that he is entitled to a greater amount based 

upon Wagner. Having rejected that argument, we conclude 

substantial evidence supports the ALJ’s decision. Nothing in 

Wagner suggests that Marin is entitled to the difference between 

the AAP funds he received and the actual costs and expenses he 

incurred in raising his three adopted children. 

14
DISPOSITION

The judgment granting the petition for writ of mandate is 

reversed, and the trial court is directed to enter a new judgment 

denying the petition. CDSS shall recover its costs on appeal. 

CERTIFIED FOR PUBLICATION.

PERREN, J.

We concur:

YEGAN, Acting P.J.

TANGEMAN, J. 

15
Donna D. Geck, Judge

Superior Court County of Santa Barbara

______________________________

Xavier Becerra, Attorney General, Julie Weng-Gutierrez, 

Assistant Attorney General, Leslie P. McElroy and Tara L. 

Newman, Deputy Attorneys General, for Appellant. 

Kelley Clarke, Matthew Clarke and Dugan Kelley, for 

Respondent. 

16