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 Ci v. No. B287769 (Super. Ct. No. 16CV01163 ) ( Santa Barbara County )

California ’ s adoption assistance p rogram (AAP) provides financial support to families to facilitate the adoption of special needs children who would otherwise remain in long

- term foster

c are. AAP monthly payment s are negotiated between the adoptive parent s and the responsible public agency , but are limited to the applicable basic foster c are maintenance payment rate. (Welf. & Inst. Code, § 1 6119, subd. (d)(1); 1 Cal. Code Regs., tit. 22, § 35333.) California ’ s f oster care maintenance program requires that foster parents be reimbursed for c ertain 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 U nited States Court of Appeals for the Ninth Circuit (Ninth Circ uit) 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. ( C alifornia State Foster Par ent 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 fact ors. ” ( 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 th e family ’ s AAP payments based up on 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 hear ing to

assess whether the costs and expenses Marin has incurred in raising his three children exceed the AAP payments received from C DSS. If so, the court directed C DSS to augment those payments from O ctober 21, 2008 to the present. C DSS asserts, and w e agree, that the foster care maintenance payment rate increase s mandated by Wagner and Lightbourne do not apply retroactively to Marin ’ s adopted children. T he California Legislature specifically amende d section 16121 to confirm that initial adoption assi stance agreements that

2predate Lightbourne are not subject to the new rate structure

. We reverse the judgment. FACT UAL AND PROCEDURAL BACKGROUND Following the children ’ s adoption s , CDSS provided Marin ’ s family with AAP benefits . Marin executed t he ini tial 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 (C ounty) , 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). ( Se e 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 t o 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

3receivin g 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 increase s provided to foster parents pursuant to SB 84. In 2014, Marin learned of the Wagner decisio n, 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 p p. *2

- 3 .) M arin 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 Divisio n. The assigned administrative law judge ( ALJ ) denied Marin ’ s claim s , finding that t he 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 paymen t] rates in effect December 31, 2007 are used. ” T he trial court granted Marin ’ s petition for writ of mandate challenging the ALJ ’ s decision. The court acknowledged that

4Wagner did not discuss AAP payments, but found that since “ the Wagner court conclud ed that foster care benefits paid by [ C DSS] were insufficient to pay for items necessary to raise children, it follows that the same payments under [ C DSS ’ 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 deter mine whether , in raising his three children, [Marin] incurred costs and expenses in excess of the payments he received from [ C DSS]. ” Assuming M arin did incur such costs and expenses, the court directed C DSS to

“ augment his payments from October 21, 2008 t o 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 agen cy ’ s findings, not the superior court ’ s deci sion, 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 ; Y oung v. California Fish and Game Com

. (2018) 24 Cal.App.5th 1178, 1192.) In this regard, an administrative

5agency ’ 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 b y the Adoption Assistance and Child Welfare Act of 1980 ( CWA). ( 4 2 U.S.C. § 670 et seq. ) The CWA specifies certain requirements for both fo ster 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 ad optive parents of children with special

nee ds. ” ( 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 feder ally approved AAP “ removes or reduces barriers to the adoption of children who otherwise would remain in long

- term foster care. The program

6provides 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. ” (C al. Code Regs., tit. 22, § 35325 , subd. (a) .) T he AAP benefit is “ a negotiated amount based upon the needs of the child and the circumstances of the famil y. ” (§ 16119, subd. (d)(1); Cal. Code Regs., tit. 22, § 35333.) There is no “ means test used to determine an adoptive family ’ s eligibility for th e [AAP], or the amount of adoption assistance payments. ” (§ 16119, subd. (d)(1).) Rather, the responsible public agency m ust advise the adoptive
pare nts that the AAP benefit is limited to the age

- related, state

approved foster care maintenance r ate 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, § 3533 3 , 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 th ese statutes do not direct the responsible public agency to reimburs e foster parents for the actual costs incurred in providing the specified items. Rather, because the CWA defines “ foste r care maintenance payments ” to mean payments that cover the cost of th ese items, the CWA requires states to consider their costs w hen

7s etting rates. As explained in Missouri Child Care Assn. v. Martin (W.D. Mo . 2003) 241 F.Supp.2d 1032, t he CWA ’ s “ list of fact ors is . . . sufficiently detail ed to put the State on notice and to permit a court to review whether the State has based its reim bursement on th ose 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. 10 44

- 1045.) Substantial Evidence and Appl icable Law Support t he 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 undermine s the ALJ ’ s findings. As we shall explain, Marin has not demonstrated that the new foster care maintenance payment rate structure implemented in response t o Wagner and Lightbourne should result in a retroactive i ncrease 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 payme n t 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 it ems enumerated in 42 United States Code section 67 5(4)(A). The district court concurred, “ finding that the CWA created a federal monetary entitlement and that the State violated the Act by

8setting 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. ) T he 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 cour t that the CWA “ establish[es] a presumptively enforce able 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 M arin 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 dete rmined 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 structur e 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. ( Light bourne , supra , 2011 U.S.Dist. Lexis 57483 , at pp. * 2

- 9 .) The district court noted th at 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

9the study was finished, CDSS de veloped a new rate methodology for foster care maintenance payments, which resulted in rate increases. ( Ibid. ) But CDSS did not implement this new method ology. F inding that CDSS had received a full and fair opportunity to comply with federal law, the co urt ordered CDSS

“ to implement [ th e ] 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 CDS S to issue retroactive
paym ents to foster parents. In deed, 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 imm ediately. ” ( Lightbourne , supra , 2011 U.S.Dist. Lexis 57483, at p. *9.) The new foster care maintenance payment rate structure, which is outlined in Ligh t bourne, is codified in section 11461, subdivision (g) (1)

. 2 In response to L ightbourne , the Californ ia 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
p ayment 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

. (§ 11 461, subd. (g) (1) ; L ightbourne , supra , 2011 U.S.Dist. Lexis 57483, at p. *9 .)

102011 or after the final order was issued in Lightbourne , whichever is ea rlier, or (2) the initial adoption assistance agreement was executed before July 1, 201 1, 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

. Notab ly, 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 ba sed 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 initia l 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 agre ements executed between Janu ary 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 retroa ctively. Marin nonetheless maintains he is entitled to retroactive relief.

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

- 2012 Reg. Sess.), § 68.)

11Schettler 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 taxati on. ( 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 pr ovided 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 Califo rnia 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

12less competen t 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 tha t 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 shoul d 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 purp ose 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 de cide d that CDSS ’ s new foster care maintenance payment rate structure should no t be applied retroactively to AAP payment recipients

. AB 106 confirms the Legislature ’ s intent to apply the new rate structure
pros pectively only: “ This bill, with respect to agreements on or after July 1, 2011 , would revise Kin

- GAP, AFDC

- FC, and AAP rat es, 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 instruction s from the department until regulations are adopted, as specified

. ”

13(AB 106 (2011

- 2012 Reg. Sess.), i talics 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 fo ster 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 impa ct

. But the Legislature did not have to consider th is 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 b ased
upon Wag ner

. 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 raisi ng his three adopted children.

14D ISPOSITION 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. C DSS shall recover its costs on appeal. CERTIFIED FOR PUBLIC ATION.

PERREN, J.

We concur:

YEGAN, Acting P.J.

TANGEMAN, J.

15Donna D. Geck , Judge Superior Court County of Santa Barbara

______________________________ Xavier Becerra, Attorney General, Julie Weng

- Gutierrez, Assistant Attorney Genera l, Leslie P. McElroy and Tara L. Newman, D eputy Attorney s General, for Appellant. Kelley Clarke, Matthew Clarke and Dugan Kelley, for Respondent.

16