Free Brief - District Court of California - California

Case 3:07-cv-05086-WHA

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 SUSAN M. CARSON Supervising Deputy Attorney General 3 GEORGE PRINCE, State Bar No. 133877 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 4 San Francisco, CA 94102-7004 Telephone: (415) 703-5749 5 Fax: (415) 703-5480 6 7 Attorneys for Defendants 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Defendants. 22 23 24 INTRODUCTION On January 11, 2008, the Court issued an order directing the parties to file, by 5 p.m. v. JOHN A. WAGNER, Director of the California Department of Social Services, in his official capacity; MARY AULT, Deputy Director of the Children and Family services Division of the California Department of Social Services, in her official capacity,, CALIFORNIA STATE FOSTER PARENT ASSOCIATION, CALIFORNIA STATE CARE PROVIDERS ASSOCIATION, and LEGAL ADVOCATES FOR PERMANENT PARENTING,, Plaintiffs, C 07-5086 WHA DEFENDANTS' BRIEF IN RESPONSE TO JANUARY 11, 2008, ORDER RE: SUPPLEMENTAL BRIEFING ON MOTION TO DISMISS IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

25 on January 14, 2008, supplementing briefing on three specific questions further defendants' 26 pending motion to dismiss, the hearing on which took place on January 10, 2008, at the Court's 8 27 a.m. calendar. 28 Defendants hereby respond to the Court's inquiries as follows.
Defendants' Supplemental Brief re: Motion to Dismiss California State Foster Parent Association, et al. v. Wagner C 07-5086 WHA

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COURT'S QUESTION 1: "Are there federal regulations that address how costs are computed with respect to the term `foster care maintenance payments?' If so, identify them and explain their significance to this case." RESPONSE TO QUESTION 1: There are no federal regulations that address how costs are computed with respect to

7 the term "foster care maintenance payments." Although 42 U.S.C. section 675 (4)(A) defines 8 this phrase and specifies the costs covered by it, and there are regulations that address what 9 categories of costs are allowable, there are no regulations that address how to compute the rates 10 or payment amounts to cover the costs allowed under the definition at 42 U.S.C. section 675 11 (4)(A). 12 13 14 15 16 17 18 COURT'S QUESTION 2: "Explain the relationship between the federal definition of `foster care maintenance payments,' the California Welfare and Institutions Code and California Necessities Index." RESPONSE TO QUESTION 2: There is a relationship between the federal definition of "foster care maintenance

19 payments" and the State's Welfare and Institutions Code section 11460, which adopts some, but 20 not all, of the wording of the federal definition at 42 U.S.C. section 675(4)(A).1/ However, there 21 is no relationship between the federal definition and the California Necessities Index. The 22 23 1. Welfare and Institutions Code section 11460, which addresses foster care and provider 24 rates, contains text at subsection (b) stating that "'Care and supervision' includes food, clothing, shelter, daily supervision, school supplies, a child's personal incidentals, liability insurance with 25 respect to a child, and reasonable travel to the child's home for visitation." Id. While this language 26 tracks in large part (but not in its entirety) the language of 42 U.S.C. section 675(4)(A), it is noteworthy that the federal statute does not use the word "actual" to describe costs, which is further 27 signified by the fact that there are no federal regulations addressing how costs are computed with respect to the term "foster care maintenance payments." (See response to the Court's Question One, 28 above.)
Defendants' Supplemental Brief re: Motion to Dismiss California State Foster Parent Association, et al. v. Wagner C 07-5086 WHA

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1 federal definition does not address the amount of the payment, it just addresses the allowable 2 cost categories for which the payment may be used. 3 The California Welfare and Institutions Code is one of the state codes that, inter alia,

4 direct the operations of state government. Portions of that code were drafted and enacted to 5 implement the federal Adoptive Assistance and Child Welfare Act of 1980, and thereby help 6 direct and administer the State of California's interaction with the federal government in 7 programs eligible to receive federal funding, such as the foster care programs at issue in this 8 lawsuit. 9 The State's Welfare and Institutions Code has provisions that describe how California

10 first set the base rates for payments to foster care parents and foster care group homes so that 11 California could participate in the federal program (see Welfare and Institutions Code 11461, as 12 to the rates for children placed in a licensed or approved family home, and Welfare and 13 Institutions Code section 11462, for payments to foster care group homes and public child care 14 institutions). 15 Obviously, the Welfare and Institutions Code also contains subsections that recite rates

16 for payments to foster care parents and foster care group homes ­ see Welfare and Institutions 17 Code section 11461(a), which states the rates for children placed in a licensed or approved 18 family home, and Welfare and Institutions Code section 11462(f)(1), which states the rates for 19 children placed in group homes and public child care institutions. Also within the same codes 20 are subsections that contemplate possible increases in the payment rates based on the California 21 Necessities Index. See Welfare and Institutions Code section 11461(d)(1)(A), which addresses 22 California Necessities Index-based increases as to children placed in a licensed or approved 23 family home, and Welfare and Institutions Code section 11462(g)(2), addressing California 24 Necessities Index-based increases for children placed in group homes and public child care 25 institutions. However, although California does have state statutes that address the issue of costs 26 for foster care, nothing in those statutes mandates that the state pay actual costs of foster care. 27 In sum, there is no functional relationship between the federal definition the California

28 Welfare and Institutions Code, and California Necessities Index that requires California to pay
Defendants' Supplemental Brief re: Motion to Dismiss California State Foster Parent Association, et al. v. Wagner C 07-5086 WHA

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1 the actual costs of foster care, as argued by plaintiffs. Although some of the same wording 2 contained in federal definition of "foster care maintenance payments" appears in California's 3 Welfare and Institutions Code, there is nothing in the federal or state statutes that requires "foster 4 care maintenance payments" to track the actual costs of providing the services included in that 5 definition. That definition refers to the permissible uses for the funds -- what they may be spent 6 on -- but does not dictate their amounts. 7 8 9 10 11 12 COURT'S QUESTION 3: "Explain the significance of the phrase `subject to the availability of funds,' as stated in the California Welfare and Institutions Code § 11461(d)(1)(A). RESPONSE TO QUESTION 3: The phrase, "subject to the availability of funds," as stated in the California Welfare

13 and Institutions Code section 11461(d)(1)(A), means what it says: any increases in the payment 14 rates set forth in Welfare and Institutions Code 11461 (a) are subject to the availability of funds. 15 If the State Legislature does not appropriate funds to increase the rates, the State's payment rates 16 under that subsection can not be increased. 17 18 19 20 21 22 23 24 25 26 27 // 28 //
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CONCLUSION Defendants reiterate their contention that plaintiffs' conclusory assertion that its

3 members have been deprived of their federal rights, privileges, and immunities under color of 4 state law in violation of 42 U.S.C. section 1983 does not withstand scrutiny. Accordingly, for 5 the reasons stated above, in the moving and responding papers in their motion, and as stated in 6 this Court on January 10, 2008, defendants Wagner and Ault again respectfully request that this 7 Court dismiss plaintiffs' complaint pursuant to Rule 12 (b)(6) of the Federal Rules of Civil 8 Procedure. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Defendants' Supplemental Brief re: Motion to Dismiss California State Foster Parent Association, et al. v. Wagner C 07-5086 WHA

Dated: January 14, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California SUSAN M. CARSON Supervising Deputy Attorney General

/s/ George Prince GEORGE PRINCE Deputy Attorney General Attorneys for Defendants

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