Filed 4/15/19

                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                          DIVISION SIX


CALIFORNIA DEPARTMENT                     2d Civ. No. B287769
OF SOCIAL SERVICES,                   (Super. Ct. No. 16CV01163)
                                        (Santa Barbara County)
     Appellant,

v.

DAVID MARIN,

     Respondent.



       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


       All further statutory references are to the Welfare and
        1

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, state-
approved 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,

      2The 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.


      3AB 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
