Stanford Law School - Robert Crown Law Library

Filed 6/7/07

IN THE SUPREME COURT OF CALIFORNIA

In re JOSHUA S. et al., Persons Coming
Under the Juvenile Court Law.
___________________________________ )

LOS ANGELES COUNTY
DEAPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
S137583
v.
Ct.App. 2/8 B170343
PENNY S.
Defendant;
Los Angeles County
Super. Ct. No. CK23643
JOSHUA S., et al.,
)
Appellants.

Under California law, when a child has been adjudged to be a dependent of
the juvenile court, “the court shall . . . terminate its dependency jurisdiction” if “a
relative of the child is appointed the [child’s] legal guardian . . . and the child has
been placed with the relative for at least 12 months,” unless “the relative guardian
objects” or “upon a finding of exceptional circumstances.” (Welf. & Inst. Code,
§ 366.3, subd. (a).)1 The Court of Appeal found that exceptional circumstances

1
All further unlabeled statutory references are to the Welfare and Institutions
Code.
1

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may exist in this case because the children, who were living with a relative
guardian in Canada, would be eligible for aid under California’s Aid to Families
with Dependent Children-Foster Care (AFDC-FC) program (§ 11400 et seq.) were
the juvenile court to change the guardianship to foster care. We granted review to
consider the Court of Appeal’s conclusion. For reasons set forth below, we
reverse the Court of Appeal’s judgment.
FACTUAL BACKGROUND

The long and tortured history of this case began more than 10 years ago, in
July 1996, when Joshua S. was born with a positive toxicology for barbiturates.
The next day, the Los Angeles County Department of Children and Family
Services (Department) took him into custody, and in October 1996, the juvenile
court adjudged him to be a dependent of the court under section 300. Joshua’s
brother, Alexander, was born in July 1997. Three months later, in October, the
juvenile court adjudged him also to be a dependent of the court.
At the same time, the court ordered that both children be placed in
Saskatchewan, Canada, with their maternal grandmother (Grandmother), who was
already caring for another child of the boys’ mother. Grandmother is a member of
the Ahtahkakoop First Nation and lives on the Ahtahkakoop Reserve. Before
making the placement order, the court received a “Home Study” prepared by the
Saskatchewan Social Services Department (which is now called the Community
Resources Department). The Home Study reported that Grandmother and her
common law husband had a “[c]ombined family income [of] approximately
$20,000 net,” and stated: “A child placed in their care would not cause major
financial stress, however, financial assistance is required.” In announcing its
order, the court noted: “[T]hey are requesting financing, and I do not believe that
I can authorize funds to go out of the United States, and they are
recommending alternative financial assistance. That would have to be up to the
Canadian Government. I do not know.” The court also ordered that the boys’
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parents receive reunification services. The boys began living with Grandmother in
Canada in December 1997.2
In April 1998, the court held a status review hearing pursuant to section
366.22. Before the hearing, the Department submitted a report recommending that
the court terminate the parents’ reunification services and select adoption as the
permanent placement plan. The report explained that although Grandmother had
initially expressed a desire to adopt, she had recently changed her mind and now
wanted long-term foster care, because she did not want to terminate her daughter’s
parental rights or take away her daughter’s incentive to “get herself together.”
Accompanying the report was a letter from the Ahtahkakoop Child & Family
Services Agency (Agency) stating that the boys were now “members of the
Ahtahkakoop Reserve,” that the Agency was “opposed to adoption of any of our
Band Member children,” and that the Agency and “the Band” supported “long-
term foster care” with Grandmother. At the hearing, counsel for the boys stated
that the “tribe is sort of stating that they are not financially able to help this family
out and understand that if we drop our jurisdiction, [Grandmother] will not get
assistance.” The court continued the matter and appointed an expert to, among
other things, “inquire of the Tribes as to any funding issues.” Three months later,
in July 1998, it terminated the parents’ reunification services and scheduled a
permanency planning hearing under section 366.26.
Arriving at a permanent placement plan proved difficult. Initially, the
Department favored adoption and told Grandmother that the boys “would be
eligible for” both aid under the Adoption Assistance Program (AAP) and Medi-
Cal services “until they reached the age of eighteen.” However, Grandmother
wanted long-term foster care instead, but was willing to consider adoption if she
would otherwise lose the boys. The boys’ counsel advocated for a third option—

2
Before being placed with Grandmother, the boys lived with foster parents
in California.
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legal guardianship—arguing to the court that “this is not an adoption case” and
that an adoption “just doesn’t make sense.” By January 1999, the Department had
changed its recommendation to long-term foster care, citing funding issues and
Grandmother’s continuing opposition to adoption. Regarding the former, the
Department reported that according to caseworkers in Canada, the boys were
receiving monthly funding from the Canadian Department of Social Services, that
Grandmother “would lose her funding for the boys, as well as free medical care,”
if she took legal guardianship, and that “the only way” she could “retain her
funding and medical [was] to maintain [the boys] under long-term foster care.”
The court found the recommendation “absolutely not acceptable,” stating:
Long-term foster care “means 17 years of hearings every six months, 17 years of
funding, and [Grandmother’s] quite clear that that’s why she wants long-term
foster care because of the funding. Seventeen years the State of California pays
for these two children in Canada when mother is up there also.” The court also
found “nothing” in the Department’s report “indicat[ing] that these children [were]
not adoptable.” It therefore continued the matter for further study.
Over the next 10 months, the parties continued to explore various
placement options. In July 1999, the Department reported that Grandmother still
wanted long-term foster care, would consider legal guardianship if she would
otherwise lose the boys, and needed “funding and medical coverage in order to
care for her grandsons.” The Department also reported that, according to
Canadian caseworkers, Grandmother would continue to receive Canadian funding
(but might lose medical care) under long-term foster care, and would lose funding
(but retain medical care) under legal guardianship. Finally, the Department
reported that, according to a representative of the “Revenue Enhancement, Special
Payments Division,” the Department “could fund the children in Canada as long as
they are Title IV eli[g]ible and the court orders the department to fund the Canada
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placement on a minute order.”3 The court stated that it was “simply not
comfortable with” long-term foster care under the circumstances, and directed the
boys’ counsel to prepare, and get Grandmother to sign, paperwork for legal
guardianship.
In October 1999, the Department reported that Grandmother now was
“committed to legal guardianship” and it recommended that the court appoint her
as legal guardian. After noting it had explained, and Grandmother understood,
“the legal and financial rights and responsibilities associated with legal
guardianship,” the Department stated: Grandmother “understands that with a
court order, Los Angeles County will fund the boys at the rate of $560.00 per
month, as court jurisdiction will not terminate, and that Canada Department of
Social Services will provide medical insurance upon receipt of legal guardianship
papers from this court.” On October 22, 1999, the court appointed Grandmother
as legal guardian, retained its dependency jurisdiction, and ordered the Department
to, among other things, “ensure that Youkim [sic] funding continues to go to the
legal guardian (in Canada).”4
Despite the caseworker’s efforts, financial aid from California did not
materialize. In December 1999, the “Technical Assistance Unit at the Adoptions
Division” stated that it was “against department policy to send monthly funding
out of the country.” In February 2000, the “Special Payments Division” advised
that although the Department “could send funding out of the country with a court
order indicating to do so,” “this specific case may be a problem as the caregiver is

3
Title IV-E of the Social Security Act (42 U.S.C. § 670 et seq.) establishes a
cooperative assistance program under which counties provide payments to foster
care providers on behalf of qualified children in foster care, using a combination
of federal, state, and county funds. California participates in this federal program
through its AFDC-FC program.
4
In Miller v. Youakim (1979) 440 U.S. 125 (Youakim), the United States
Supreme Court held that relative caregivers are entitled to the same financial aid
under what is now Title IV-E as nonrelative caregivers.
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now the legal guardian and . . . was no longer considered a relative.” In March
2000, a regional administrator stated that under section 45-303 of the California
Department of Social Services’s Manual of Policies and Procedures (MPP), “ ‘we
cannot pay out of the country.’ ”
The possibility of adoption began to be explored, based on information that
California funding might be available if Grandmother adopted the boys. However,
in November 2000, the Department reported that Grandmother was “receiv[ing]
monthly funding” and “medical care” from sources in Canada and did not want to
adopt the boys, that she might consider that option if her funding were
permanently terminated, but that even if she permanently lost all funding, she
might “ ‘try to make things work out without the money.’ ” Grandmother later
changed her mind, and in June 2001, she agreed to adopt the children if her
attorney recommended she do so. Grandmother’s attorney was demanding written
assurance that Grandmother would receive AAP funds if she adopted the children.
No such assurances were provided. Instead, in December 2001, the
Department told the court that AAP funds would not be available were
Grandmother to adopt the boys while they all still lived in Canada. It also told the
court that “[f]oster caretakers and legal guardians are only eligible to receive
funding for children in their home if the family resides in the United States.” It
recommended that the court leave the legal guardianship in place and terminate its
dependency jurisdiction. The court followed the recommendation, and on January
7, 2002, terminated its dependency jurisdiction.
The boys appealed, and the Court of Appeal reversed. (In re Joshua S.
(2003) 106 Cal.App.4th 1341 (Joshua I).) The court first reasoned that under
section 366.3, subdivision (a), a juvenile court “may elect to retain [dependency]
jurisdiction where it finds exceptional circumstances,” and that under California
Rules of Court, former rule 1466(a) (now rule 5.740),5 exceptional circumstances

5
All further rule references are to the California Rules of Court.
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“may be established by a finding that the best interests of the child would be
served by continued jurisdiction.” (Joshua I, supra, at p. 1353.) The court then
found that the juvenile court had abused its discretion by failing to consider the
best interests of the children and focusing instead on the financial and
administrative burdens that long-term foster care would impose on California. (Id.
at pp. 1354-1356.) The court remanded the case for “consideration of whether
continued jurisdiction would be in the children’s best interest, including
consideration of whether [Grandmother] can provide for the children’s needs
without financial assistance” and “whether financial assistance is available
from . . . California.” (Id. at p. 1356.) Regarding the latter consideration,
although noting that the children had not requested a determination “that funding
from California is available or required,” the court nevertheless noted that “the
children may have been eligible for” financial assistance under the AFDC-FC
program. (Id. at p. 1358.) It stated: “[T]here appears no statutory bar to a child
receiving AFDC-FC where that child has been adjudicated a person described by
section 300, removed from the home of his or her parents, and placed outside of
the United States, where the child would otherwise be eligible for AFDC-FC
payments based on established need.”6 (Joshua I, supra, at pp. 1357-1358.)
In August 2003, after the case was remanded and the juvenile court retook
dependency jurisdiction, the Department filed a progress report stating that
Grandmother was receiving $540.00 per month from Canadian Social Services to
support the children, additional money to support their older brother, and a
monthly tax incentive. The report also stated that, according to Grandmother, “the

6
The Department petitioned for review of Joshua I, arguing the Court of
Appeal incorrectly held that “exceptional circumstances” under section 366.3,
subdivision (a), may be established by a showing that the best interests of the child
would be served by continued jurisdiction. We denied review. In this opinion, we
express no view on this question, which the parties have not raised and which is
beyond the scope of the issues on which we granted review.
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Indian Tribe [was] assuring yearly medical and dental exams” and “school
attendance,” and was “assist[ing] [her] in meeting all of the children’s needs.”
Finally, the report conveyed Grandmother’s position that “the children [were]
doing fine,” that “she [did] not want anything from the court in California” and did
not “want anyone calling and asking questions about the children, including social
workers, or the courts,” and that her family “ ‘ want[ed] to be left alone.’ ” The
report recommended that the juvenile court terminate its dependency jurisdiction.
On August 28, 2003, after a hearing, the juvenile court followed the
recommendation and again terminated its dependency jurisdiction. The juvenile
court found that the boys “apparently” were “thriving with their grandmother” in a
safe, loving, and stable home, and that it was in their best interest to remain in that
home. Regarding funding, the court first stated that “[w]hen a child in the State of
California leaves the State of California for a legal guardianship in another state,
we cannot provide funds to that state.” After the children’s counsel asserted that
legal guardianship, rather than long-term foster care, had been chosen “only”
because Grandmother “was told by the department” she “couldn’t get the funding”
otherwise, the court replied: “I’m not aware that children in another country can
get funding if they are in long-term foster care.” The court later declared: “I do
not believe this court has the authority to provide funds for the grandmother in
Canada, under any theory of law.”
The boys again appealed, and the Court of Appeal again reversed. It first
found that the children, notwithstanding their placement outside of the United
States, would be eligible for AFDC-FC assistance were they placed in long-term
foster care. It further found that because section 362, subdivision (a), gives a
juvenile court “authority to make any and all reasonable orders for the[]
maintenance and support” of a child who has been adjudged a dependent child
under section 300, the juvenile court would have “the authority to order the
department to make [AFDC-FC] payments” were the court to “place[]” the boys
“in long-term foster care with [G]randmother in Canada.” In reaching this
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conclusion, the Court of Appeal also found that the children were not required to
exhaust administrative remedies before obtaining judicial relief, reasoning that
pursuing such remedies would be futile in light of “the department’s Manual of
Policy and Procedures section 45-303,” which “states that foster care payments
may not be made outside of the country.” The Court of Appeal next reasoned that
“because the juvenile court was unaware of its authority to order funding” were it
to place the boys in long-term foster care, “on this record it abused its discretion in
terminating [its dependency] jurisdiction.” In the Court of Appeal’s view, because
“the evidence of the children’s well-being . . . was far from convincing,” “[a]t a
minimum,” the juvenile court should have asked whether the children’s counsel
intended to file a section 388 petition to modify the legal guardianship to foster
care “in order to possibly avail the children of the additional funding.” After
vacating the order terminating jurisdiction, the Court of Appeal stated: “On
remand, the children should be permitted a reasonable opportunity to file a section
388 petition. If the children do not file such a petition, the juvenile court may
reinstate the order terminating jurisdiction. If the children file a section 388
petition, we express no opinion as to how the juvenile court should rule, other than
to observe that the children’s best interests are paramount to the decision.
[Citation.] Although we have held that funding is not unavailable simply because
the children live in Canada, the juvenile court may be called upon to consider any
number of factors in deciding whether to grant section 388 relief.”
We granted the Department’s petition for review.
DISCUSSION

In its briefs, the Department launches a multi-pronged attack on the Court
of Appeal’s decision. The Department challenges both the substance of the Court
of Appeal’s determination that the boys would be eligible for AFDC-FC payments
were the guardianship changed to foster care, and the court’s very power to make
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that determination. Before addressing the former, we consider arguments that
implicate the court’s power.
I. The Children’s Eligibility for AFDC-FC Was Before the Court of
Appeal

On several grounds, the Department argues that the question of the
children’s eligibility for AFDC-FC was not properly before the Court of Appeal.
None of these arguments has merit.
The Department first asserts that because the juvenile court made no
judgment or order “determining that the children were not eligible” for AFDC-FC,
“there was nothing for the Court of Appeal to review.” In making this assertion,
the Department argues that the juvenile court found only that “it did not have the
authority to determine if the children were entitled to [AFDC-FC] benefits.” Thus,
the Department argues, the Court of Appeal lacked jurisdiction to make an
eligibility determination.
The record does not support the Department’s argument. Just before the
juvenile court announced its ruling, the Department argued that the children lost
their “eligibility” for benefits when they moved to Canada and “lost their
residency in the State of California.” The juvenile court then stated that it was
terminating its dependency jurisdiction, explaining in relevant part: (1) “these
children are permanent residents of Canada”; (2) “[w]hen a child in the State of
California leaves the State of California for a legal guardianship in another state,
we cannot provide funds to that state”; (3) “[i]f we do long-term foster care in
another state, we can” provide benefits; (4) “I am not aware that children in
another country can get funding if they are in long-term foster care”; (5) “I do not
believe that this court is empowered to grant funding to a relative in another
country with children in a legal guardianship who are permanent residents of that
country”; and (6) “I do not believe this court has the authority to provide funds for
the grandmother in Canada, under any theory of law.” Fairly read, these
comments support the Court of Appeal’s view that the juvenile court found “the
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children were not eligible for public assistance from California ‘under any theory
of law’ because they had become residents of Canada.” Indeed, contrary to its
current position, in the Court of Appeal the Department similarly described the
juvenile court’s decision, stating: “The [juvenile] court found that the children
were not eligible for funding from California because they were residing in
Canada.” On this record, the Department’s argument fails.
The Department next argues that the children’s notice of appeal was
insufficient to put their AFDC-FC eligibility at issue. In making this argument,
the Department cites the language of the notice, which stated that the children
were appealing from the “[o]rders of the Juvenile Court issued August 28, 2003
terminating jurisdiction in this matter without first resolving whether the children
will continue to receive funding.” (Italics added.) Based on the italicized
language in the notice, the Department asserts that the children “did not even
attempt to” appeal from an order actually “mak[ing] an eligibility determination.”
Thus, the Department argues, the Court of Appeal “had no jurisdiction to address
or decide the [eligibility] issue.”
The Department’s overly technical attempt to parse the notice of appeal’s
language is unmeritorious. “[I]t is, and has been, the law of this state that notices
of appeal are to be liberally construed so as to protect the right of appeal if it is
reasonably clear what [the] appellant was trying to appeal from, and where the
respondent could not possibly have been misled or prejudiced.” (Luz v. Lopes
(1960) 55 Cal.2d 54, 59; see also rule 8.100(a)(2) [“notice of appeal must be
liberally construed”].) A notice of appeal “is sufficient if it identifies the
particular judgment or order being appealed.” (Rule 8.100(a)(2).) The notice in
this case clearly met this requirement by identifying the juvenile court’s order of
“August 28, 2003 terminating jurisdiction in this matter.” To the extent, if any,
the phrase “without first resolving whether the children will continue to receive
funding” created ambiguity, “there is no showing” that the Department was “or
could have been misled or prejudiced because of the [arguably] ambiguous
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language.” (Luz, supra, at p. 60.) Thus, the Department is incorrect in asserting
that the notice of appeal was insufficient to give the Court of Appeal jurisdiction
to review the juvenile court’s eligibility determination.
The Department also argues that because the children never applied for
AFDC-FC, “the issue of whether [they] were eligible for AFDC-FC benefits was
not ripe for review by any court.” According to the Department, “[u]ntil the
children apply for and are denied AFDC-FC benefits, the laws and regulations
governing their eligibility generate no more than a difference of opinion.”
For several reasons, we reject the Department’s ripeness argument. First,
the Department did not make the argument in the Court of Appeal. “As a policy
matter,” we “normally will not consider an issue that the petitioner failed to timely
raise in the Court of Appeal.” (Rule 8.500(c)(1).) Second, the argument fails on
its merits. The issue before the juvenile court was whether “exceptional
circumstances” existed such that it should not terminate its dependency
jurisdiction notwithstanding the children’s placement for at least 12 months with a
relative whom the court had appointed their legal guardian. (§ 366.3, subd. (a).)
Under Joshua I, to answer that question, the court had to determine, among other
things, whether the children would be eligible for AFDC-FC benefits were it to
retain jurisdiction and change the guardianship to foster care. Thus, contrary to
the Department’s assertion, the “ripeness requirement,” which “prevents courts
from issuing purely advisory opinions, or considering a hypothetical state of facts
in order to give general guidance rather than to resolve a specific legal dispute”
(Hunt v. Superior Court (1999) 21 Cal.4th 984, 998), was satisfied in this case.
II. Exhaustion of Administrative Remedies
In the Court of Appeal, the Department argued that a judicial determination
of the children’s eligibility for AFDC-FC benefits was unavailable until the
children invoked and exhausted the administrative process for obtaining AFDC-
FC benefits by filing an application for benefits and requesting a hearing were the
application denied. In rejecting this claim, the Court of Appeal first found that
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because section 362, subdivision (a), gives a juvenile court “authority to make any
and all reasonable orders for the[] maintenance and support” of a child who has
been adjudged a dependent child under section 300, a juvenile court “has the
authority to order the department to make [AFDC-FC] payments” were the boys
“placed in long-term foster care with [G]randmother in Canada.” It then found
that the children did not have to pursue administrative remedies before obtaining
judicial relief, reasoning that “ ‘resort to the administrative process would be futile
because it is clear what the agency’s decision would be.’ ” The court explained:
“[T]he department’s Manual of Policy and Procedures section 45-303 states that
foster care payments may not be made outside of the country. Thus, it seems clear
that the agency—in this case the department—relying on its own Manual of Policy
and Procedures, would decide that foster care payments could not be made to the
children because they have been placed with grandmother in Canada. Since the
result of the administrative process is obvious, there would be no benefit to
requiring the administrative proceedings to take their course.”
The Court of Appeal’s analysis is flawed in several respects. First, the
court erred in finding that section 362, subdivision (a), gives the juvenile court
“authority to order the department to make [AFDC-FC] payments” without an
administrative determination of the children’s eligibility for those payments.
Section 362, subdivision (a), provides in part that a juvenile court “may make any
and all reasonable orders for the care, . . . maintenance, and support” of a child
who has been adjudged a dependent child under section 300, and “may, after
giving notice and an opportunity to be heard, join in the juvenile court proceedings
any agency . . . that the court determines has failed to meet a legal obligation to
provide services to the child.” However, this section also provides that a juvenile
court “has no authority to order services unless it has been determined through the
administrative process of an agency that has been joined as a party, that the child
is eligible for those services.” (Ibid., italics added.) The plain language of this
provision establishes that a juvenile court may not order the Department actually
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to make AFDC-FC payments—i.e., to provide services—unless the administrative
process is invoked and it is determined through that process that the children are
eligible for AFDC-FC payments. The Court of Appeal erred insofar as it held
otherwise.7
Second, the Court of Appeal’s justification for applying the futility
exception—its assumption that the Department would follow section 45-303 of the
MPP—is inconsistent with our case law. In Lindeleaf v. Agricultural Labor
Relations Bd. (1986) 41 Cal.3d 861, 869, the petitioner sought to challenge an
agency’s regulations in court without first raising his objection in the
administrative process. In finding that the petitioner had failed to exhaust his
administrative remedies, we first explained that “courts ordinarily accord
administrative agencies the initial opportunity to address claims involving
interpretation of their own regulations . . . .” (Ibid.) We then rejected the
petitioner’s reliance on the “futility exception” to the exhaustion requirement,
explaining: “The futility exception . . . demands that the petitioner state with
assurance that the [agency] would rule adversely in [the petitioner’s] own
particular case. [Citations.] Because the issue had never been presented to the
[agency], its probable decision could not be forecast. To permit [the petitioner]
retroactively to second-guess the [agency] would improperly dilute the [agency’s]
power to ‘make, amend, and rescind’ its own regulations. ([Lab. Code,] § 1144.)”
(Lindeleaf, supra, 41 Cal.3d at p. 870.) Similarly, here, as far as we know, the
validity of section 45-303 of the MPP has never been challenged in administrative
proceedings. Therefore, under Lindeleaf, the Court of Appeal erred in concluding
that it would be futile to do so.
Ultimately, however, for a different reason, we agree with the Court of
Appeal that the exhaustion requirement’s futility exception applies. Under

7
We disapprove In re Joshua S., supra, 106 Cal.App.4th 1341, to the extent
it is inconsistent with this conclusion.
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California law, a child placed in the “approved home of a relative” is not eligible
for AFDC-FC unless “the child is otherwise eligible for federal financial
participation in the AFDC-FC payment” (§ 11402, subd. (a)), which means that
“the payment is consistent with an approved state plan under Section 671 and
following of Title 42 of the United States Code, authorizing federal financial
participation in the payment.” (§ 11402.1.) As relevant to the exhaustion issue,
the cited federal statutes authorize federal participation in payments made only to
children “in foster family homes or child-care institutions.” (42 U.S.C. §
674(a)(1); see also 42 U.S.C. § 672(a)(2)(C) [requiring states with approved plans
to make payments if, among other requirements, the child “has been placed in a
foster family home or child-care institution”].) Because the juvenile court placed
the children under legal guardianship rather than in foster care, they were not
living in a foster family home or child-care institution, and thus were not eligible
for federal participation.8 Therefore, it clearly would have been futile for the
children to have applied for AFDC-FC while they were under legal guardianship.
Thus, the boys’ failure to apply for AFDC-FC benefits did not preclude either the
juvenile court or the Court of Appeal from considering whether, because of their
placement outside of the United States, they would be ineligible for AFDC-FC
even were the juvenile court to place them in foster care. To that issue, we now
turn.

8
For purposes of federal eligibility, “the term ‘foster family home’ means a
foster family home for children which is licensed by the State in which it is
situated or has been approved, by the agency of such State having responsibility
for licensing homes of this type, as meeting the standards established for such
licensing,” and “the term ‘child-care institution’ means a private child-care
institution, or a public child-care institution which accommodates no more than
twenty-five children, which is licensed by the State in which it is situated or has
been approved, by the agency of such State responsible for licensing or approval
of institutions of this type, as meeting the standards established for such
licensing.” (42 U.S.C. § 672(c).)
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III. The Children Are Ineligible for AFDC-FC Payments

As explained earlier, under California law, a child placed in the “approved
home of a relative” is not eligible for AFDC-FC unless “the child is otherwise
eligible for federal financial participation in the AFDC-FC payment.” (§ 11402,
subd. (a).) The Department argues that were the juvenile court to change the boys’
placement in Canada to foster care, they would not be eligible for federal financial
participation—and thus would be ineligible for AFDC-FC—because they would
fail to meet the federal requirement that they be “placed in a foster family home.”
(42 U.S.C. § 672(a)(2)(C).) For reasons that follow, we agree.
For purposes of this requirement, federal law defines a “foster family
home” as “a foster family home for children which is licensed by the State in
which it is situated or has been approved, by the agency of such State having
responsibility for licensing homes of this type, as meeting the standards
established for such licensing.” (42 U.S.C. § 672(c).) In context, the term “such
State” refers to “the State in which [the foster home] is situated,” and the statute
therefore requires that the foster home be either “licensed by the State in which it
is situated” or approved “by the agency” of the state in which it is situated having
responsibility for licensing foster homes. (Ibid.) Because Canada is not a “State”
for purposes of this provision (see 42 U.S.C. § 1301(a)), Grandmother’s home is
not in a state, it cannot be licensed or approved by the state “in which it is
situated,” and it cannot qualify as a “foster family home” for purposes of federal
financial participation in AFDC-FC payments. (42 U.S.C. § 672(c).) For this
reason, federal financial participation would be unavailable were the juvenile court
to place the children in foster care with Grandmother in Canada.
These conclusions are consistent with other provisions of federal law that
indicate Congress’s intent to extend eligibility for federal financial participation
only to children placed in foster homes within the United States and its territories.
To be federally approved, a state’s plan must, among other things, “provide[] for a
case review system” (42 U.S.C. § 671(a)(16)), i.e., a procedure for assuring that
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each child has a “case plan” that meets certain basic requirements. (42 U.S.C. §
675(5).) Additional requirements apply if a child is placed “in a State different
from the State in which [his or her parents’] home is located.” (42 U.S.C. §
675(5)(A)(i), italics added.) In this circumstance, the case plan must specify the
reasons why the placement in a different “State” is in the child’s best interests
(ibid.) and must require that a caseworker from “the State” in which the parents
live, “the State in which the child has been placed,” or “a private agency under
contract with either such State, visit such child in such home” at least every six
months. (42 U.S.C. § 675(5)(A)(ii), italics added; see also Safe and Timely
Interstate Placement of Foster Children Act of 2006, Pub.L. No. 109-239, § 6 (July
3, 2006) 120 Stat. 512.) For purposes of this provision, the term “State” includes
certain United States territories, but it does not include either Canada or any other
foreign country. (42 U.S.C. § 1301(a)(1).) The most—perhaps the only—
plausible reason for Congress’s failure to provide that foreign placements are
subject to the additional requirements applicable to interstate placements is its
understanding that children placed in foster care in other countries are simply not
eligible for federal financial participation. Thus, that Congress specifically
addressed children placed in other states and United States territories, but made no
mention of children placed in other countries, supports the conclusion that were
the juvenile court to change the boys’ placement in Canada to foster care, they
would not be eligible for federal financial participation.
Recent federal legislation reinforces this conclusion. In July 2006, the
United States Congress passed the Safe and Timely Interstate Placement of Foster
Children Act of 2006 (Pub.L. No. 109-239 (July 3, 2006) 120 Stat. 508) (Act).
The Act declared that “[f]ederal policy should encourage the safe and expedited
placement of children into safe, permanent homes across State lines.” (Id., § 2,
italics added.) Among other things, the Act added several new requirements for
federal financial participation in foster care payments: a state’s plan must
“provide that the State shall have in effect procedures for the orderly and timely
17

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interstate placement of children”; that “the State” shall, within 60 days of
receiving from “another State” a request for a home study assessing the safety and
suitability of placing a child in the home, conduct and complete the study; and that
a “State” must treat any such report received from “another State or an Indian tribe
(or from a private agency under contract with another State) as meeting any
requirements imposed by the State for the completion of a home study before
placing a child in the home.” (Id., §§ 3 & 4, 120 Stat. 508-509, adding 42 U.S.C.
§ 671(a)(25) & (26), italics added.) Neither Canada nor any other foreign country
is a “State” within the meaning of these provisions (42 U.S.C. § 1301(a)(1)), and
again, the most plausible reason for Congress’s failure to provide that foreign
placements are subject to the new requirements the Act imposed on interstate
placements is its understanding that children placed in foster care in other
countries are not eligible for federal financial participation. Indeed, our review of
the congressional debates regarding the federal statutes discussed above reveals no
hint that Congress has provided, or intended to provide, for federal financial
participation in payments to children placed in foster care outside of the United
States.
Contrary to the assertion of amicus curiae The Alliance for Children’s
Rights, the decision in Youakim, supra, 440 U.S. 125, does not require a different
conclusion. There, based in part on legislative history, the high court held that
placement in the home of a relative does not render a child ineligible for the
federal foster care benefit program. (Id. at pp. 138-143, 146.) However, the court
based its holding primarily on the “sweeping language” of the relevant statutes,
which “manifestly [does] not limit” eligibility to children placed in “the homes of
nonrelated caretakers” (id. at p. 135) and “plainly states that a foster family home
is the [licensed or approved] home of any individual.” (Id. at pp. 137-138.) The
court’s discussion of the legislative history merely “fortif[ied]” its reading of the
statutes’ plain language. (Id. at p. 138.) Here, by contrast, as demonstrated above,
the plain language of the relevant statutes does not support the boys’
18

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interpretation, and in construing a statute, we look first to its language. (People v.
Murphy (2001) 25 Cal.4th 136, 142.) Moreover, the high court in Youakim relied
on an administrative interpretation that expressly supported its conclusion.
(Youakim, supra, 440 U.S. at pp. 143-144.) We have found no administrative
interpretation supporting the boys’ position in this case. Finally, Youakim’s
discussion of the legislative history did not examine whether Congress intended to
send federal funds out of the country, because the facts of that case did not
implicate this question. For these reasons, Youakim is inapposite.
Based on the above, we conclude that were the juvenile court to place the
boys in foster care with Grandmother in Canada, they would not be eligible under
federal law for federal financial participation in any AFDC-FC payment and,
therefore, would not be eligible for AFDC-FC.9

9
Given our conclusion, we need not, and do not, address the following
arguments: (1) the boys would not meet the requirement for federal financial
participation that their “placement and care are the responsibility of [¶] the State
agency administering” the state’s federally approved foster care maintenance
payment plan or “any other public agency with which” that state agency “has
made an agreement which is still in effect” (42 U.S.C. § 672(a)(2)(B)); (2) because
the boys are Canadian residents, they are ineligible under California’s general
residency requirements for recipients of public assistance; (3) the evidence failed
to establish the boys’ need for financial assistance from California; and (4) a court
order mandating payment of AFDC-FC payments to the children would result in
an illegal expenditure of public funds and would violate the separation of powers
doctrine.
19

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DISPOSITION
The Court of Appeal’s judgment is reversed and the matter is remanded for
further proceedings consistent with this opinion.
CHIN, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
CORRIGAN, J.
20

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Joshua S.
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 131 Cal.App.3th 1307
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S137583
Date Filed: June 7, 2007
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Sherri S. Sobel, Temporary Judge*

__________________________________________________________________________________

Attorneys for Appellant:

Merrill Lee Toole, under appointment by the Supreme Court, for Appellants.

Laura Streimer, Lara J. Holtzman, Natasha Frost; Horvitz & Levy, David S. Ettinger and Mary-Christine
Sungaila for The Alliance for Children’s Rights as Amicus Curiae on behalf of Appellants.



__________________________________________________________________________________

Attorneys for Respondent:

Lloyd W. Pelham and Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel,
Stephanie Jo Farrell and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.

Bill Lockyer, Attorney General, Thomas R. Yanger, Assistant Attorney General, and Paul Reynaga, Deputy
Attorney General, for Department of Social Services as Amicus Curiae on behalf of Plaintiff and
Respondent.

Jennifer B. Henning for California State Association of Counties as Amicus Curiae on behalf of Plaintiff
and Respondent.

*Pursuant to California Constitution, article VI, section 21.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Merrill Lee Toole
P.O. Box 1542
Monrovia, CA 91017-5442
(626) 358-6088

David S. Ettinger
Horvitz & Levy
15760 Ventura Boulevard, 18th Floor
Encino, CA 91436-3000
(818) 995-0800

William D. Thetford
Deputy County Counsel
201 Centre Plaza Drive, Suite One
Monterey Park, CA 91754
(323) 526-6368

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Opinion Information

Date:	Docket Number:
Thu, 06/07/2007	S137583

Disposition
Jun 7 2007	Opinion: Reversed

Dockets
Sep 23 2005	Petition for review filed   counsel for respondent Los Angeles County
Sep 23 2005	Request for depublication (petition for review pending)   counsel for respondent Los Angeles County
Sep 28 2005	Record requested
Sep 28 2005	Received Court of Appeal record   one doghouse
Nov 2 2005	Petition for review granted (civil case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, and Moreno, JJ.
Nov 2 2005	Letter sent to:   All counsel enclosing a copy of the Grant order and the form (Certificatin of Interested Entities or Persons) (Corrected titles on the order and re-mailed copies to the parties, including the Court of Appeal.]
Nov 3 2005	Note:   Letter sent to all parties enclosing a copy of the grant order and the c.i.p. form.
Nov 17 2005	Certification of interested entities or persons filed   respondent Los Angeles County Dept., etc.
Nov 29 2005	Counsel appointment order filed   Upon request of appellants for appointment of counsel, Merrill Toole is hereby appointed to represent appellants on the appeal now pending in this court. Your attention is directed to California Rules of Court, rule 29.1, for the briefing requirements. Pleae note that, because this is a child dependency case, the court may grant an extension of time only on "an exceptional showing of good cause." (Code Civ. Proc., Section 45; Cal Rules of Court, rule 38.2(d).)
Dec 1 2005	Request for judicial notice filed (granted case)   Los Angeles County Department of Children and Family Services, respondent Asst. County Counsel, Willam Thetford.
Dec 1 2005	Opening brief on the merits filed   Los Angeles County Department of Children and Family Services, respondent Asst. County Counsel, William Thetford.
Jan 3 2006	Answer brief on the merits filed   appellant/minors Joshua S., et al.
Jan 20 2006	Reply brief filed (case fully briefed)   Los Angeles County Department of Children & Family Services, respondent
Feb 16 2006	Received application to file Amicus Curiae Brief   California State Association of Counties in support of Respondent by Jennifer B. Hanning, counsel
Feb 17 2006	Received application to file Amicus Curiae Brief   California Department of Social Services, in support of respondent by Paul Reynaga, counsel
Feb 21 2006	Received application to file Amicus Curiae Brief   The Alliance for Children's Rights, supporting appellant Joshua & Penny S.
Feb 24 2006	Permission to file amicus curiae brief granted   The application of California Department of Social Services for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Feb 24 2006	Amicus curiae brief filed   California Department of Social Services in support of respondent.
Feb 24 2006	Permission to file amicus curiae brief granted   The application of California State Association of Counties for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Feb 24 2006	Amicus curiae brief filed   California State Association of Counties in support of respondent
Feb 24 2006	Request for judicial notice filed (granted case)   by Amicus Curiae California Department of Social Services
Mar 2 2006	Permission to file amicus curiae brief granted   The application of The Alliance for Children's Rights for permission to file an amicus curiae brief in support of appellants is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 2 2006	Amicus curiae brief filed   The Alliance for Children's Rights in support of appellants.
Mar 6 2006	Received:   Application to file Addendum to Amicus Curiae Brief of The Alliance for Children's Rights. (Addendum separate)
Mar 6 2006	Filed:   Addendum to Amicus Curiae Brief of The Alliance for Children's Rights in support of appellants. [ Filed with permission ]
Mar 22 2006	Answer to petition for review filed   Los Angeles Conty Department of Children and Family Services, respondent Willaim D. Thetford, retained.
Oct 16 2006	2nd record request   for record B156445 (previous appeal) referred to in the request for judicial notice which was granted by order.
Oct 16 2006	Received Court of Appeal record
Nov 20 2006	Received:   document entitled "Calendar Preference Motion" from: respondent County of Los Angeles Office of County Counsel
Mar 6 2007	Case ordered on calendar   to be argued Tuesday, April 3, 2007, at 9:00 a.m., in Los Angeles
Mar 20 2007	Application filed to:   divide oral argument time Appellants Joshua S. and Alexander C. requesting to allocate 10 minutes of time to amicus curiae The Alliance for Children's Rights.
Mar 21 2007	Order filed   The request of counsel for appellants in the above-referenced cause to allow two counsel to argue on behalf of appellants at oral argument is hereby granted. The request of appellants to allocate to amicus curiae The Alliance for Children's Rights 10 minutes of appellants' 30-minute allotted time for oral argument is granted.
Mar 23 2007	Received:   Petitioner Los Angeles County Department of Children and Family Services' list of additional authorities to be cited at Oral Argument on April 3, 2007.
Mar 28 2007	Order filed   The Requests for Judicial Notice of Respondent Los Angeles County Department of Children and Family Services and Amicus Curiae California Department of Social Services are granted.
Apr 3 2007	Cause argued and submitted
May 1 2007	Received:   Letter from Merrill Lee Toole, counsel for appellant children, re new Court of Appeal opinion filed after argument. In re Sabrina H. (April 20, 2007, D049249)
May 8 2007	Received:   Letter from respondent County of Los Angeles re: letter docketed 05/01/07 referencing a recent published opinion.
Jun 6 2007	Notice of forthcoming opinion posted
Jun 7 2007	Opinion filed: Judgment reversed   and the matter is remanded for further proceedings consistent with this opinion. Majority Opinion by Chin, J., ----- Joined by George, C. J., Kennard, Baxter, Werdegar, Moreno and Corrigan, JJ.
Jul 12 2007	Remittitur issued (civil case)
Jul 20 2007	Received:   Receipt for remittitur.
Oct 15 2007	Compensation awarded counsel   Atty Toole

Briefs
Dec 1 2005	Opening brief on the merits filed
Jan 3 2006	Answer brief on the merits filed
Jan 20 2006	Reply brief filed (case fully briefed)
Feb 24 2006	Amicus curiae brief filed
Feb 24 2006	Amicus curiae brief filed
Mar 2 2006	Amicus curiae brief filed

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