Filed 12/4/17
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re H.C., a Person Coming Under the Juvenile Court Law. D072368 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. NJ014860) Plaintiff and Respondent,
v.
H.C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Michael J.
Imhoff, Commissioner. Reversed.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent. H.C., a nonminor dependent of the juvenile court, appeals an order terminating her
dependency case. (Welf. & Inst. Code, § 391.) 1 She contends that the court erred by
determining that H.C.'s marriage rendered her ineligible for nonminor dependency
jurisdiction. We agree with H.C. and therefore reverse.
FACTUAL AND PROCEDURAL BACKGROUND
In 2013, the juvenile court declared H.C. a dependent under section 300. The
court later selected long-term foster care as H.C.'s permanent plan. After H.C. turned 18,
the court continued H.C.'s dependency case as a nonminor dependent in extended foster
care.
After some initial difficulties, and a two-month period of living with her half
brother in Florida, the San Diego County Health and Human Services Agency (Agency)
recommended in November 2016 that H.C. continue in the program. She was residing in
an approved independent living placement, was actively seeking employment, and had
enrolled in college. She agreed to a transitional living plan that included finding
employment and obtaining her California identification card. The court adopted the
Agency's recommendation and continued H.C. in extended foster care.
H.C. had periodically been involved in a romantic relationship with Alonzo S.
Alonzo was reportedly abusive toward H.C. He broke her cell phone and threatened to
kill himself over her. H.C. acknowledged that her relationship with Alonzo was not
1 Further statutory references are to the Welfare and Institutions Code unless otherwise specified. 2 healthy. Nonetheless, H.C. became pregnant and believed that Alonzo was the baby's
father.
Approximately six months later, the Agency discovered that H.C. had married
Alonzo and was living with him. The Agency set a special hearing and requested that the
juvenile court terminate H.C.'s dependency case. The Agency argued that H.C.'s
marriage rendered her ineligible to participate in the extended foster care program. In
support, the Agency cited an All-County Letter (No. 11-69) published by the California
Department of Social Services (DSS). The All-County Letter describes the policies and
procedures governing the extended foster care program. The All-County Letter states
that nonminors who are married, are in the military, or are incarcerated (among others)
are not eligible for extended foster care. In correspondence with the Agency's counsel, a
DSS analyst explained that the reason for these exclusions is that nonminors in those
situations can no longer be under the care and custody of the Agency.
H.C. opposed termination of her nonminor dependency case. At a contested
hearing, her counsel argued that nothing in the applicable statutes prohibits a married
nonminor from participating in extended foster care and continuing as a nonminor
dependent. Her counsel criticized the Agency's reliance on the All-County Letter and
contended that the All-County Letter's exclusions were unsupported by the statutes.
The court agreed with the Agency, observing, "Marriage has historically and
culturally been the benchmark for full independence." The court expressed its belief that
marriage ends the court's role in the dependency context in the same way that marriage
emancipates a child from his or her parents. The court found that the All-County Letter
3 is the authoritative interpretation of the applicable nonminor dependency statutes until
formal regulations are approved. In the court's view, because H.C. is married, she is no
longer eligible for extended foster care. The court proceeded to terminate H.C.'s
dependency case "due to her marriage." H.C. appeals.
DISCUSSION
I
A dependent minor who turns 18 years of age and has a permanent plan of long
term foster care may, in the court's discretion, continue under the court's jurisdiction as a
nonminor dependent. (§ 366.32; In re Aaron S. (2015) 235 Cal.App.4th 507, 515 (Aaron
S.).) California enacted the current version of its nonminor dependency statutes to take
advantage of increased federal funding for extended foster care. (§ 11403, subd. (a); In
re R.G. (2015) 240 Cal.App.4th 1090, 1092-1093 (R.G.).) This funding is made available
to states that elect to participate and have enacted programs that comply with federal
requirements.
Under the current statutory scheme, a nonminor dependent is defined as either a
"foster child" under federal law or a nonminor under the juvenile court's jurisdiction
under section 450, who meets three requirements: (1) the individual must be under a
certain age (at this point, under 21 years); (2) the individual must be in foster care under
the placement and care responsibility of a county welfare department, county probation
department, or Indian tribe, consortium or organization; and (3) the individual must have
a transitional independent living case plan. (§ 11400, subd. (v); see 42 U.S.C.
§ 675(8)(B).) Contrary to its ordinary meaning, a foster child under federal law may
4 include an individual under 21 years of age who is in foster care. (42 U.S.C.
§ 675(8)(B)(i), (iii).)
" 'Foster care' means the 24-hour out-of-home care provided to children whose
own families are unable or unwilling to care for them, and who are in need of temporary
or long-term substitute parenting." (§ 11400, subd. (f).) In order to participate in
extended foster care, a nonminor dependent must agree to the continued placement and
care of a county welfare department or other responsible authority. (§§ 11400, subd.
(u)(1), 11401, subd. (e).) The nonminor dependent must also agree to a transitional
independent living case plan, which describes the nonminor dependent's appropriate
placement setting, his or her permanent plan for transition to living independently, the
process for assuming incremental responsibility for adult decisionmaking, and the
collaborative efforts to ensure active and meaningful participation in the work and
education eligibility criteria described below. (§ 11400, subds. (v)(3), (y); see In re A.A.
(2016) 243 Cal.App.4th 765, 775 (A.A.).)
The statute lists a number of acceptable placements for nonminor dependents in
extended foster care. (§ 11402.) One such placement is an approved supervised
independent living arrangement. (§ 11402, subd. (e).) This arrangement is defined as
"an independent supervised setting, as specified in a nonminor dependent's transitional
independent living case plan, in which the youth is living independently . . . ." (§ 11400,
subd. (w).) It does not include "detention facilities, forestry camps, training schools, or
any other facility operated primarily for the detention of children who are determined to
be delinquent." (42 U.S.C. § 672(c)(2); see A.A., supra, 243 Cal.App.4th at p. 774.)
5 In addition to the requirements discussed above, to remain eligible for extended
foster care, under both federal and state law, a nonminor dependent must satisfy one of
the following conditions relating to work and education: "(1) The nonminor is
completing secondary education or a program leading to an equivalent credential. [¶] (2)
The nonminor is enrolled in an institution which provides postsecondary or vocational
education. [¶] (3) The nonminor is participating in a program or activity designed to
promote, or remove barriers to employment. [¶] (4) The nonminor is employed for at
least 80 hours per month. [¶] (5) The nonminor is incapable of doing any of [these
activities] due to a medical condition, and that incapability is supported by regularly
updated information in the case plan of the nonminor." (§ 11403, subd. (b); see 42
U.S.C. § 675(8)(B)(iv).) A county welfare department or other responsible authority
must work with the nonminor dependent to maintain his or her eligibility for the program.
(§ 11403, subd. (a).)
The juvenile court must maintain jurisdiction over a nonminor dependent "who
meets the definition of a nonminor dependent as described in subdivision (v) of Section
11400" unless it finds that "the nonminor does not wish to remain subject to dependency
jurisdiction" (§ 391, subd. (c)(1)(A)), "the nonminor is not participating in a reasonable
and appropriate transitional independent living case plan" (§ 391, subd. (c)(1)(B)), or
"after reasonable and documented efforts the nonminor cannot be located" (§ 391, subd.
(d)(1)). If the court is considering terminating jurisdiction over a nonminor dependent,
the county welfare department or other responsible authority must, among other things,
submit a report to the court describing whether it is in the nonminor's best interests to
6 remain under the court's jurisdiction, provide documentation of its reasonable efforts to
assist the nonminor in meeting or maintaining eligibility, make available to the nonminor
information about the nonminor's dependency case, and provide certain vital documents
to the nonminor (e.g., Social Security card, birth certificate, driver's license or
identification card, and 90-day transition plan). (§ 391, subds. (b), (e).) 2
"We review the decision to terminate jurisdiction over a nonminor dependent for
abuse of discretion." (Aaron S., supra, 235 Cal.App.4th at p. 517.) Legal issues
underlying the court's decision, such as the correct interpretation of the relevant statutes
governing nonminor dependents, are reviewed de novo. (See R.G., supra, 240
Cal.App.4th at p. 1097.)
II
H.C. contends that the court erred by terminating her nonminor dependency case
based on her marriage. We agree. Neither of the applicable statutes, state or federal,
mentions marriage. Rather, the statutes cover only a nonminor dependent's age, his or
2 At least one court has found that California's prior framework for nonminor dependents continues in effect for nonminor dependents who do not meet the statutory definition in section 11400, subdivision (v) and, therefore, do not qualify for federal funding: "While the primary legislative focus of the [revisions] was clearly on making continued services and benefits available to juvenile court dependents in foster care who would otherwise 'age out' of the system, we find nothing in the statutory scheme that withdraws the court's preexisting power to extend dependency jurisdiction for nonminor dependents generally. Significantly, a lack of federal funding to support the cost of providing services beyond age 18 is not a proper basis for termination of dependency jurisdiction. [Citations.] We reject the Agency's argument that under section 391 the court has no discretion to extend dependency jurisdiction to such nonminor dependents." (In re Shannon M. (2013) 221 Cal.App.4th 282, 301-302.) H.C. does not argue that her dependency case should have been continued under the prior framework, so we need not consider the issue here. 7 her relationship to the Agency, and his or her transitional living plan. (See § 11400,
subd. (v).) A nonminor dependent's marriage does not necessarily affect any of those
eligibility criteria. A married nonminor dependent's age obviously does not change.
Marriage does not prevent the nonminor dependent from living in an Agency-approved
placement or receiving its services (i.e., "care"). Marriage also does not prevent the
nonminor dependent from participating in a transitional independent living case plan.
Indeed, the responsibilities of marriage may facilitate the nonminor dependent's transition
to independence. Allowing otherwise eligible married nonminor dependents to
participate in extended foster care furthers the purpose of the program, which is to
improve outcomes for former foster children by providing assistance, case management,
and financial support as they transition to adulthood. (A.A., supra, 243 Cal.App.4th at pp.
772-773; see generally Shin, A Saving Grace? The Impact of the Fostering Connections
to Success and Increasing Adoptions Act on America's Older Foster Youth (2012) 9
Hastings Race & Poverty L.J. 133.) It would impede, rather than support, the purpose of
the program to exclude former foster children simply because they have married.
The Agency acknowledges that marriage is not mentioned in the applicable
statutes but claims that a married nonminor cannot remain a dependent of the juvenile
court. The Agency points out that a minor who marries is emancipated from his or her
parents. (Fam. Code, § 7002, subd. (b); see id., § 7505, subd. (b).) By analogy, at least
one court has found that a married minor cannot be the subject of a dependency
proceeding in juvenile court. (In re J.S. (2011) 199 Cal.App.4th 1291, 1296.) But the
analogy cannot be extended to the circumstances here. A nonminor dependent is, by
8 definition, already an adult. Marriage does not emancipate an adult from anything or
anyone.
The Agency contends that including married nonminor dependents in extended
foster care would create "enormous barriers" for the Agency. It asks, rhetorically, "How
would the Agency supervise a married adult residing with her husband? How could an
Agency place a married woman in foster care?" The answer to both questions is that the
Agency can supervise a married adult just as it supervises an unmarried adult. A married
adult is just as able to comply with the Agency's directives, and benefit from its services,
as an unmarried adult. Although the rights and responsibilities of marriage bind both
spouses, a married woman remains just as free as an unmarried woman to act
independently in the areas of concern to the Agency. She can make her own decisions
about her education, her employment, her medical care, and the other areas where the
Agency assists nonminor dependents. A married woman need not even live with her
husband. Although it may seem strange to think of a married person being in foster care,
it is equally strange to think of a competent adult in foster care—and that is accepted
under the statutory scheme for nonminor dependents because their participation is
9 voluntary. (§§ 366.31, subd. (a)(1), 11400, subd. (u)(1), 11401, subd. (e).) Marriage
does not necessarily affect the realities of such voluntary "care" in any relevant aspect. 3
Contrary to the Agency's concern that a married person would be impossible to
supervise, and therefore, cannot participate in extended foster care, the federal
government has explicitly acknowledged that married persons may participate in
extended foster care. The federal government's Child Welfare Policy Manual, which
provides policy guidance to state and local authorities, poses the following question and
answer: "Question 4. [¶] May a youth age 18 or older who is married or enlisted in the
military be eligible for title IV-E foster care? [¶] Answer[:] [¶] Yes. There is nothing
in title IV-E that prohibits a title IV-E agency from providing title IV-E foster care to an
otherwise eligible youth if the youth is married or enlisted in the military (including if the
youth is in the military reserves or ROTC)." (U.S. Department of Health and Human
Services, Child Welfare Policy Manual, § 8.3A, Question 4.) Nothing about the realities
3 The Agency also asks, again rhetorically, "If the Agency made foster care payments to a married nonminor dependent, would that render the aid community property?" We need not determine that issue here. The Agency has made no suggestion that characterizing such aid as community property would prevent a married nonminor dependent from benefiting from the extended foster care program or otherwise impair the program's goals.
10 of foster care, or the extended foster care program, preclude participation by married
nonminor dependents. 4
The Agency points to apparently competing guidance, in the form of the DSS's
All-County Letter No. 11-69 regarding extended foster care. The All-County Letter
states that nonminors who are married, are in the military, are incarcerated, or "[a]re
otherwise not eligible for [federal funding]" cannot participate in the extended foster care
program. DSS published the All-County Letter under the authority of section 11403,
subdivision (j), which directs DSS to "prepare for implementation of the applicable
provisions of this section by publishing . . . all-county letters or similar instructions from
the director . . . ." The statute directs DSS to develop formal regulations by July 1, 2013,
to implement the statute's provisions (§ 11403, subd. (i)), but it has not done so.
The degree of deference that courts accord to an All-County Letter depends on the
substance of the All-County Letter as a quasi-legislative rule or merely an interpretation
of the statute. " ' "The appropriate degree of judicial scrutiny in any particular case is
perhaps not susceptible of precise formulation, but lies somewhere along a continuum
with nonreviewability at one end and independent judgment at the other." [Citation.]
Quasi-legislative administrative decisions are properly placed at that point of the
continuum at which judicial review is more deferential; ministerial and informal actions
4 We may take judicial notice of this portion of the Child Welfare Policy Manual because its publication is an official act of an executive department of the federal government. (Evid. Code, §§ 452, subd. (c), 459, subd. (a); see Robles v. Employment Development Dept. (2015) 236 Cal.App.4th 530, 548 & fn. 9.) The Child Welfare Policy Manual is available at the following website: . 11 do not merit such deference, and therefore lie toward the opposite end of the
continuum.' " (Yamaha Corp. of America v. State Board of Equalization (1998) 19
Cal.4th 1, 7 (Yamaha).) "Where the meaning and legal effect of a statute is the issue, an
agency's interpretation is one among several tools available to the court. Depending on
the context, it may be helpful, enlightening, even convincing. It may sometimes be of
little worth. [Citation.] Considered alone and apart from the context and circumstances
that produce them, agency interpretations are not binding or necessarily even
authoritative. To quote the statement of the Law Revision Commission in a recent report,
'The standard for judicial review of agency interpretation of law is the independent
judgment of the court, giving deference to the determination of the agency appropriate to
the circumstances of the agency action.' " (Id. at pp. 7-8.)
The portion of the All-County Letter at issue here is plainly interpretive, not quasi-
legislative. It purports to state the eligibility criteria for extended foster care under the
statute. "[I]t represents the agency's view of the statute's legal meaning and effect,
questions lying within the constitutional domain of the courts." (Yamaha, supra, 19
Cal.4th at p. 11.) While we recognize the expertise of a specialized administrative
agency in interpreting the statutes that it is tasked with implementing, the persuasiveness
of an agency's determination depends on the circumstances. (Id. at pp. 12-13 [describing
various factors for courts to consider].) The circumstances of the All-County Letter do
not warrant a great deal of deference. The All-County Letter is an informal document
that has not undergone the traditional rigors of administrative rulemaking, and according
to the Legislature's directive, it should have been superseded by formal regulations years
12 ago. The statutory scheme here is not so technical, obscure, or open-ended as to hinder
judicial examination. And the relevant text of the All-County Letter, which is devoid of
citations to the statute or to other sources that might show how married people are
ineligible, does not demonstrate on its face a high degree of reliability.
The All-County Letter provides no reason to depart from our interpretation,
supported by federal guidance, that the applicable statutes do not preclude participation
by married nonminor dependents in the extended foster care program. Indeed, the text of
the All-County Letter indicates that its eligibility requirements are based on the
availability of federal funding. It therefore makes little sense to exclude married persons,
who are eligible for federal funding according to the United States Department of Health
and Human Services Child Welfare Policy Manual.
The Agency relies primarily on the United States Supreme Court's interpretation
of federal administrative law in Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc. (1984) 467 U.S. 837 to argue that we should defer to DSS's interpretation of
the statute. However, California administrative law does not follow Chevron. (See, e.g.,
New Cingular Wireless PCS, LLC v. Public Utilities Com. (2016) 246 Cal.App.4th 784,
811, fn. 23.) " 'Chevron deference' . . . does not exist in California." (Asimow et al., Cal.
Practice Guide: Administrative Law (The Rutter Group 2016) ¶ 1:12.) The Agency's
reliance on Chevron is therefore unpersuasive.
The Agency also points out that other courts have relied on the All-County Letter.
(See N.S. v. Superior Court (2016) 7 Cal.App.5th 713, 720 [discussing the medical
condition necessary to exclude the statute's work and education requirements and
13 verification thereof]; R.G., supra, 240 Cal.App.4th at pp. 1098-1099 [discussing
flexibility in fulfilling the work and education requirements]; Aaron S., supra, 235
Cal.App.4th at pp. 518-519 [same].) Those courts did not consider the portion of the All-
County Letter at issue here and did not analyze the degree of deference (if any) that it
should be accorded. These authorities therefore do not establish that we should defer to
the All-County Letter under the circumstances here. 5
III
The Agency contends, in the alternative, that termination of H.C.'s dependency
case was proper because H.C. left her approved placement and moved in with Alonzo.
The Agency claims that H.C. did not seek approval of her new residence and speculates
that the residence would not have been approved, based on Alonzo's alleged history of
abuse.
A married nonminor dependent, just like an unmarried one, must comply with the
requirements of the extended foster care program. Even assuming that leaving an
5 In a related argument, the Agency contends that California's plan for extended foster care, which it submitted to the federal government and which references the All- County Letter, restricts extended foster care eligibility to unmarried individuals. The Agency has not complied with the Rules of Court regarding judicial notice, which require a separate motion, so we may disregard the Agency's reliance on the plan. (See Cal. Rules of Court, rule 8.252(a)(1).) However, even if we were to consider the plan, it would not affect our analysis of the statutes governing H.C.'s dependency case. Whatever the content of California's plan (and it is not entirely clear), California's statutes do not foreclose the participation of married nonminor dependents in extended foster care. To hold that the plan overrides those statutes would allow the proverbial tail to wag the dog. We note that H.C.'s ability to obtain extended foster care funds from DSS is a question that we do not consider here. We consider only the statutory definition of a nonminor dependent and whether the juvenile court was correct to find that it excludes married nonminors. 14 approved placement could constitute grounds for termination, the record does not reflect
that the Agency asserted this ground for termination in the juvenile court or that the
juvenile court adopted it. In its report prior to the termination hearing, the Agency wrote,
"Although [H.C.] was doing well in meeting the [extended foster care] criteria by
attending school and looking for employment, she does not meet [the] criteria at the
moment because she reports that she got married . . . ." Similarly, the court stated at the
hearing that H.C. was not "eligible" for extended foster care "by virtue of the marriage."
We cannot make the determination for the first time on appeal that the juvenile court
should have terminated H.C.'s dependency case not because of her marriage, but because
of her alleged failure to comply with the requirements of the extended foster care
program. Such arguments should be presented to the juvenile court in the first instance.
In this regard, we observe that the entire trajectory of H.C.'s dependency case
would have been different if the Agency had been aware that H.C.'s marriage does not
render her ineligible for extended foster care. The Agency must work to ensure H.C.'s
eligibility for extended foster care. (See § 11403, subd. (a).) It is reasonable to believe
that the Agency would have acted differently if it had known that H.C. could participate
in extended foster care as a married nonminor dependent. If the Agency had known that
H.C. could both marry and participate in extended foster care, it could have advised H.C.
as such, rather than telling her that marriage would render her ineligible. The Agency
could also have endeavored to find a placement setting that would have been acceptable
to both the Agency and H.C. and that would have prevented H.C.'s termination from the
program. Under these circumstances, H.C. should be given the opportunity to
15 demonstrate her compliance with the requirements of the program under the proper legal
standards.
DISPOSITION
The order is reversed.
AARON, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.