Leonard v. Wagner










Filed 11/8/10 Leonard v. Wagner CA1/3





NOT TO BE PUBLISHED IN OFFICIAL REPORTS


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

JOSHUA LEONARD, Plaintiff and Respondent, v. JOHN WAGNER, as Director, etc., et al., Defendants and Appellants.

A126135 (San Francisco County Super. Ct. No. 507449)

The California Department of Social Services (the Department) administers the Aid to Families with Dependent Children-Foster Care (AFDC-FC) program, which provides financial assistance on behalf of needy children in foster care. Every eligible foster child may receive AFDC-FC benefits until age 18. (Welf. & Inst. Code, § 11401.[1]) However, an eligible foster child may continue to receive benefits for up to an additional year until the age of 19, if before the age of 18 the child is attending high school or the equivalent level of vocational or technical training on a full-time basis, or is in the process of pursuing a high school equivalency certificate, and the child may reasonably be expected to complete the educational or training program or to receive the high school equivalency certificate, before the age of 19. (§ 11403; hereinafter also referred to as the graduation by 19 requirement.)
Plaintiff Joshua Leonard, as a taxpayer, sought a writ of mandate, and declaratory and injunctive relief, on the ground the Department’s enforcement of section 11403 discriminated against certain 18-year-old foster children, who, by reason of their disabilities, cannot reasonably be expected to meet the graduation by 19 requirement. The trial court agreed, declaring that the graduation by 19 requirement “discriminates against youth with disabilities,” in violation of the Americans with Disabilities Act (ADA) (42 U.S.C. § 12132) and Government Code section 11135. We now reverse, and hold the federal and state anti-discrimination laws are not violated by the Department’s enforcement of the graduation by 19 requirement in section 11403.
FACTUAL AND PROCEDURAL BACKGROUND
A. Statutory Scheme for Foster Care Benefits
California provides financial assistance to foster care children and their foster care parents, pursuant to the AFDC-FC program. (Sections 11400 through 11469.1.) “California’s program for foster care benefits is really two programs, one involving the use of federal funds, the other financed by the state alone.” (King v. McMahon (1986) 186 Cal.App.3d 648, 653 (King).)
“The first of the two foster care programs is the joint federal-state foster care program (‘federal program’, partially funded by the federal government and administered by the state.” (King, supra, 186 Cal.App.3d at p. 653, fn. omitted; see 42 U.S.C. §§ 672, 674, 675, subd. (4)(A).) [2] As a participant in the federal foster care program, California has submitted a state plan and has enacted its own statutory scheme in Welfare and Institutions Code (§ 11400 et. seq.), designed to comply with federal requirements. (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 739; California Welfare Rights Organization v. Carleson (1971) 4 Cal.3d 445, 453.) Once a state agrees to participate in the AFDC-FC program it must comply with federal requirements; otherwise the state is not entitled to receive matching federal funding. (42 U.S.C. § 671(a)(b); see Aughe v. Shalala (W.D. Wash. 1995) 885 F. Supp. 1428, 1430 (Aughe).) “For foster children who do not meet federal criteria, California has its own foster care program funded entirely by the state” (state program). (King, supra, 186 Cal.App.3d at p. 654, fn. omitted.) “State foster care eligibility provisions are much broader than those of the federal program” in that “many categories of recipients that would not be covered under any other AFDC program are covered under state AFDC-FC.” (Ibid., fn. omitted.)
Section 11403 provides that a foster child is eligible to receive AFDC-FC benefits if either (a) he is “under the age of 18 years,” (§ 11401), or (b) he is in foster care, receiving AFDC-FC aid, attending high school or the equivalent level of vocational or technical training on a full-time basis, or in the process of pursuing a high school equivalency certificate, before his 18th birthday, and “following his or her 18th birthday so long as the child continues to reside in foster care placement, remains otherwise eligible for AFDC-FC payments, and continues to attend high school or the equivalent level of vocational or technical training on a full-time basis, or continues to pursue a high school equivalency certificate, and the child may reasonably be expected to complete the educational or training program or to receive a high school equivalency certificate, before his or her 19th birthday. . . .” (§ 11403.)
When section 11403 was amended in 1983, the state Legislature declared that benefits were to be provided “to the extent federal funds [were] available.” (Legis. Counsel’s Dig., Sen. Bill No. 63 (1983-1984 Reg. Sess.) 4 Stats. 1983, Summary Dig., p. 192.) From 1983 to 2005, the language in section 11403 mirrored the language used in the then applicable federal provision granting additional AFDC-FC benefits to foster children between the ages of 18 and 19. (Compare Stats. 1983, ch. 551, § 6, p. 2377 with former 42 U.S.C. § 606.) In 2005, the state Legislature amended section 11403 to provide that foster children may receive AFDC-FC funds beyond age 18 if they were also pursuing a high school equivalency certificate. (Stats. 2005, ch. 641, § 3.) The benefits paid to additional recipients added by the 2005 amendment are part of the state program only. (Legis. Counsel’s Dig., Assem. Bill No. 1633 (2005 Reg. Sess.).) The amendment “recognize[d] the need to provide foster youth with every opportunity to complete their high school studies. Many foster youth experience great instability in their education due to changing placements and schools. Allowing them to remain in a family home with support[ ] and assistance is essential to ensuring they can complete school and transition successfully into independent living situations.” (Assem. Com. on Human Services, Analysis of Assem. Bill No. 1633 as amended April 20, 2005, pp. C-D.) [3]
B. Current Lawsuit
In 2007, plaintiff Joshua Leonard filed a joint petition for writ of mandate and verified complaint for declaratory and injunctive relief (pleading) against defendants the Department and its director John Wagner (hereinafter also referred to collectively as the Department). The pleading alleged two causes of action: one pursuant to the ADA, which prohibits a public entity from discriminating against or denying benefits to a qualified individual with a disability by reason of such disability; and one pursuant to Government Code section 11135, which provides that programs or activities funded directly by the state or receiving any financial assistance from the state shall meet the protections and prohibitions contained in the ADA.
In support of both causes of action, plaintiff alleged, in relevant part, that the Department’s enforcement of section 11403 was discriminatory because it denied AFCD-FC benefits, and failed to make reasonable modifications, for 18-year-old foster children who, due to their disabilities, could not meet the graduation by age 19 requirement. Plaintiff sought the following relief: (1) a declaration that the Department’s termination of AFDC-FC benefits pursuant to 11403, as applied to foster care children whose disability prevented them from complying with the graduation by age 19 requirement, violated the ADA and Government Code section 11135; (2) a permanent injunction (Code of Civ. Proc. § 526a[4]) prohibiting the Department from spending money to implement section 11403, (3) a writ of mandate (Code Civil Proc., § 1085 [5]) prohibiting the Department from terminating AFDC-FC benefits to 18-year-old foster children who could not meet the graduation by age 19 requirement due to a disability, and (4) an order awarding plaintiff costs and reasonable attorneys’ fees.
After a hearing, the court granted judgment in favor of plaintiff. In its judgment filed on September 2, 2009, the court incorporated an order, dated and filed July 6, 2009, entitled “Order Granting Writ of Mandate,” which set forth the court’s findings. Specifically, the court declared the graduation by 19 requirement in section 11403 discriminated against disabled 18-year-old foster children in violation of the ADA and Government Code section 11135. The court also determined the Department had a “policy and practice” of terminating AFDC-FC benefits of disabled 18-year-old foster children who could not met the graduation by 19 requirement. Because the Department had not shown the State would be unduly burdened by making a reasonable accommodation in the AFDC-FC program for those 18-year-old disabled foster children, the court directed the Department: (1) “to comply with the [ADA] . . . and to develop a remedial plan to address and correct the discrimination currently in place in the AFDC-FC program . . .”; and (2) to “instruct counties to cease terminating AFDC-FC benefits to otherwise eligible [foster] children who reach 18 and [were] not reasonably expected to” meet the graduation by 19 requirement “due to disability.” [6] Defendants timely appeal.[7]
DISCUSSION
The Department raises various challenges to the trial court’s ruling granting plaintiff both declaratory and injunctive relief based on his claim that the graduation by 19 requirement in section 11403 discriminates against 18-year-old foster children, who, due to their disability, cannot meet the requirement. We recognize that the state Legislature has chosen to eliminate the graduation by 19 requirement as a condition of the receipt of section 11403 benefits for foster children between the ages of 18 and 19. (See Stats. 2010, ch. 559, effective January 1, 2012.) [8] Nevertheless, this prospective legislation does not impact our analysis of whether the state’s current application of the graduation by 19 requirement discriminates against 18-year-old foster children who cannot meet the requirement due to disability. As we now discuss, we agree with the Department that plaintiff has failed to establish his entitlement to any relief pursuant to the ADA.[9]
Title II of the ADA reads, in relevant part: “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” (42 U.S.C. § 12132.) To prove a violation of Title II of the ADA, plaintiff must establish the Department is denying benefits to 18-year-old foster children who are “qualified individuals with disabilities,” and the denial of benefits “was by reason of [their] disabilit[ies].” (Weinreich v. Los Angeles County (9th Cir. 1997) 114 F.3d 976, 978.) “[A] ‘qualified individual with a disability’ is ‘an individual with a disability who, with or without reasonable modifications to rules, policies, or practices . . . meets the essential eligibility requirements for . . . participation in programs or activities provided by a public entity.’ [42 U.S.C. § 12131.]” (Castellano v. City of New York (S.D.N.Y. 1996) 946 F. Supp. 249, 253 (Castellano).) “[T]he ADA’s implementing regulations require a public entity to ‘make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service[s], program, or activity.’ [28 C.F.R. § 35.130(b)(7).]” (Zukle v. Regents of the University of California (9th Cir. 1999) 166 F.3d 1041, 1046 (Zukle).) Thus, “[a] requirement of a program is not . . . considered to be ‘essential’ if a ‘reasonable accommodation’ would enable an individual to qualify for the benefit. [Citations.] Accordingly, the ‘reasonableness’ of an accommodation and the ‘essentialness’ of an eligibility requirement are inextricably intertwined and must be examined together. [¶] When reviewing a challenge to the eligibility requirements of a program, a court must first review each eligibility requirement to determine whether or not the requirement is essential ‑ which entails determining whether an accommodation is reasonable ‑ and then must determine whether the individual has met those requirements that are essential. [Citations.] An eligibility requirement will be essential ‑ or an accommodation of it will be unreasonable ‑ if its alteration ‘either imposes “undue financial and administrative burdens” [on the public entity] or requires “a fundamental alteration in the nature of [the] program.” ’ [Citations.] Reasonable accommodations are those that do not require an organization ‘to lower or to effect substantial modifications of standards to accommodate a handicapped person.’ [Citation.] . . . [¶] . . . Although questions of the reasonableness of an accommodation or the essentialness of an eligibility requirement generally need a fact-specific inquiry, [citations], certain eligibility requirements of a program by their nature are essential and any alteration unreasonable as a matter of law. [Citations.]” (Castellano, supra, 946 F. Supp. at pp. 253-254.)
In analyzing the essentialness of the eligibility requirements for section 11403 benefits, we look to the legislative goals “pertaining to all social services programs; namely, the mandate to provide ‘protection, care, and assistance to the people of the state in need thereof’ (Welf. & Inst. Code, § 10000) ‘within the limits of public resources’ (Welf. & Inst. Code, § 10001, subd. (a)). As applied to the AFDC-FC program, this simply means that the maximum number of abused, neglected and orphaned children in need of foster care must be provided such assistance within the limits of public funds available for this purpose.” (King, supra, 186 Cal.App.3d at p. 664.) The state has chosen to grant benefits to all foster children to the age of 18. (§ 11401). In enacting section 11403, the state also chose to grant an additional benefit to assist those foster children between the ages of 18 and 19 who could reasonably be expected to complete their schooling or training during that one year. We disagree with our dissenting colleague that the prospective elimination of the graduation by 19 requirement confirms that the requirement is nonessential because it was included only for fiscal reasons. Instead, we conclude the apparent purpose of the additional benefit is to allow certain foster children who will complete their education or training within one year of the 18th birthdays to remain in a foster placement until graduation. If a foster child cannot reasonably be expected to complete his education or training between ages 18 and 19, then the goal of the additional benefit (continued placement until graduation) cannot be achieved. “Hence, the joinder of this requirement cannot be attributable to discrimination, rather, it is ‘necessary for the provision of the . . . program or activity being offered.’ ” (Easley By Easley v. Snider (3d Cir. 1994) 36 F.3d 297, 303 (Easley); see, also, Knutzen v. Eben Ezer Lutheran Housing Center (10th Cir. 1987) 815 F.2d 1343, 1353-1354 [“as a general principle, [section 504 of the federal Rehabilitation Act of 1973] was not intended to be used as a ‘sword’ with which the handicapped may carve a share from every federal benefit program”].) Although we have no doubt that disabled 18-year-old foster children would benefit from receiving assistance for an additional year, “this unfortunately is insufficient to carry out the purposes sought to be accomplished by the [L]egislature” when it included the graduation by 19 requirement in section 11403. (Easley, supra, 36 F.3d at p. 304.) Because the purpose to be accomplished by the section 11403 benefit cannot be achieved without the graduation by 19 requirement, we conclude the requirement is an essential component of that benefit. (See Fry v. Saenz (2002) 98 Cal.App.4th 256, 276 (Fry) [conc. opn. of Hull, J] [inclination to defer to Legislature’s implied determination graduation by 19 requirement is essential eligibility requirement as purpose of benefit program could not be achieved without the requirement].)
In analyzing the related matter of whether a reasonable modification could be made to the section 11403 benefit, we look at whether a modification would “alter[ ] the essential nature of the program or imposes an undue burden or hardship in light of the overall program.” (Easley, supra, 36 F.3d at p. 305; see Zukle, supra, 166 F.3d at p. 1046 [ADA does not require the state to make modifications that “ ‘would fundamentally alter the nature of the services, program, or activity’ ”]; Pottgen v. Missouri St. High Sch. Activities Ass’n (8th Cir. 1994) 40 F.3d 926, 930 [“Accommodations are not reasonable if they . . . require a ‘fundamental alteration in the nature of [the] program’ ”].) Here, the only possible modification that would allow section 11403 benefits to be paid to disabled 18-year-old foster children is a waiver of the graduation by 19 requirement.[10] Because a waiver “would essentially rewrite the statute, it must be seen as a fundamental alteration in the nature of the” section 11403 benefit granted by the state, and is not required under the ADA. (Aughe, supra, 885 F. Supp. at p. 1432.) If 18-year-old foster children cannot meet the graduation by age 19 requirement except by a waiver then the foster children are not “ ‘otherwise qualified’ ” disabled individuals entitled to receive section 11403 benefits. (Aughe, supra, 885 F. Supp. at p. 1432.) To allow a modification by waiver “would create a program that the [s]tate never envisioned when it enacted” the section 11403 benefit. (Easley, supra, 36 F.3d at p. 305.) [11] [12]
Additionally, plaintiff has not demonstrated that a modification of the graduation by age 19 requirement is “necessary to avoid discrimination on the basis of a disability.” (Castellano, supra, 946 F. Supp. at p. 254.) “[T]o determine whether a modification is necessary, a court must look to the merits of the claims and determine essentially if” disabled 18-year-old foster children are being “treated differently than other similarly situated nondisabled [foster children] or that [the Department’s] policies have a disparate impact on disabled [18-year old-foster children]. [Citations.]” (Id. at pp. 254-255.)
We initially conclude the graduation by age 19 requirement does not “burden disabled individuals in a manner different from or greater than the burdens it places on nondisabled individuals. [Citations.]” (Castellano, supra, 946 F. Supp. at p. 255.) Section 11403 benefits are denied to those 18-year-old foster children who are not reasonably expected to graduate by age 19, regardless of the reason for their inability to do so. (See Flight v. Gloeckler (2d Cir. 1995) 68 F.3d 61, 64 [“the distinction in the present case is not based upon [plaintiff’s] disability, multiple sclerosis, but rather upon his inability to drive”].) Also, the ADA does not require a state to “ ‘ “provide a certain level of benefits to individuals with disabilities.” ’ [Olmstead v L.C. (1999) 527 U.S. 581, 603, fn. 14.]” (M.K. ex rel. Mrs. K. v. Sergi (D. Conn. 2008) 554 F. Supp. 2d 175, 197; see also Williams v. Secretary of the Executive Office of Human Services (1993) 414 Mass. 551, 560 (Williams) [“Courts do not determine whether an agency’s allocation of resources or provision of services is efficient or in proportion to the obvious and pressing need of the disabled . . .”].) “Yet, this is precisely what plaintiff[ ] [is] challenging in this case ‑ the level of benefits provided by [the state] to [certain disabled 18-year-old foster children]. Such a claim is not cognizable under the anti-discrimination provisions of . . . the ADA. . . . As the Second Circuit held in Henrietta D. v. Bloomberg [(2d Cir. 2003)] 331 F.3d [261,] 276, there must be something different about the way [disabled 18-year-old foster care children are] treated because of [their] disabilit[ies]. It is this comparative component that is wholly lacking from plaintiff[’s] discrimination claims.” (M.K ex rel. Mrs. K. v. Sergi, supra, 554 F.Supp.2d at p. 198.) The state has not denied section 11403 benefits to disabled 18-year-old foster children because, as a result of their disability, assistance is not appropriate. The state has merely determined section 11403 benefits should be given to enable 18-year-old foster children to stay in a foster placement so as to facilitate their graduation within the year following their 18th birthday. (See Easley, supra, 36 F.3d at p. 306.) “This is not a case of [s]tate discrimination against a subgroup of the group of people who are [disabled.] On the contrary, this is a case where an additional handicap” ‑ disability that precludes graduation by age 19 ‑ “renders participation” in section 11403 benefits “ineffectual.” (Ibid.)
We also conclude section 11403 does not have a disparate impact on disabled 18-year-old foster children. Disparate impact discrimination is actionable only if it denies disabled persons “meaningful access” to public benefits. (Hunsaker v. Contra Costa County (9th Cir. 1998) 149 F.3d 1041, 1043.) Plaintiff presents no evidence that all disabled 18-year-old foster children cannot meet the graduation by 19 requirement due to their disability.[13] We are not persuaded by plaintiff’s argument that some 18-year-old foster children will be denied access to section 11403 benefits because they cannot meet the graduation by 19 requirement due to disability. The state Legislature has broad discretionary authority to determinate the durational limitations of the state AFDC-FC program benefits. It could have chosen to end state AFDC-FC program benefits for all foster children at age 18. The allowance of an additional section 11403 benefit for some foster children between the ages of 18 and 19 is consistent with the state Legislature’s broad discretionary authority to implement a benefit program that recognizes “ ‘meaningful distinctions between different groups of disabled persons.’. . . [Citations.]” (Ulrich v. Senior and Disabled Services Division (1999) 164 Or. App. 50, 56; see Williams, supra, 414 Mass. at p. 559 [“The focus of Federal disability discrimination statutes is to address discrimination in relation to nondisabled persons, rather than to eliminate all differences in levels or proportions of resources allocated and services provided to individuals with differing types of disabilities.”].)
In sum, we conclude the graduation by 19 requirement is an essential component of the current grant of section 11403 benefits, and a waiver of that requirement would fundamentally alter the nature of those benefits. Even if some 18-year-old foster children will not be able to meet the graduation by 19 requirement due to disability, the denial of section 11403 benefits to those children does not constitute impermissible discrimination within the meaning of the ADA.[14]
DISPOSITION
The order filed on July 6, 2009, and the judgment filed on September 2, 2009, are reversed. The matter is remanded to the trial court for entry of judgment in favor of defendants California Department of Social Services and its director, John Wagner, consistent with the views expressed in this opinion. The parties are to bear their own costs on appeal.


_________________________
Jenkins, J.


I concur:


_________________________
McGuiness, P. J.

Pollak, J. — I respectfully dissent for the reasons stated by the trial court and set forth in Fry v. Saenz (2002) 98 Cal.App.4th 256. In my view, the graduation-by-19-years-of- age cutoff is not essential to the objectives of the Aid to Families with Dependent Children – Foster Care program, or specifically to the objectives of Welfare and Institutions Code section 11403, subdivision (b), added by Stats. 2010, ch. 559, § 46, effective January 1, 2011. Permitting those who are pursuing but, because of a disability, cannot complete their education by their 19th birthday to continue to receive benefits for the same period as those who suffer from no such disability would not fundamentally alter the nature of the program or preclude the achievement of its purposes. (Fry v. Saenz, supra, at p. 264.) The recent amendments to the federal and state statutes which over time will extend the benefits of the program to nonminor dependents continuing to pursue their education until their 21st birthday (see maj. opn., ante, p. 4, fn. 3) underscores the fact that the graduate-by-19 limitation is not an essential element of the program, but simply a limitation imposed for fiscal reasons.[15] While the new legislation does not render the case before us moot, fortunately its significance is minimized by the less restrictive limitations that will come into effect under the new provisions.


_________________________
Pollak, J.


Publication courtesy of California pro bono lawyer directory.
Analysis and review provided by Chula Vista Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com

---