King v. McMahon

purpose. Consequently, we conclude that the challenged program comports with the requirements of equal protection.

Statement of the Case

Plaintiffs-respondents are children placed in foster care with relatives and denied certain financial benefits by the state, and their related foster parents. In October 1981, plaintiffs, for themselves and on behalf of others similarly situated, sued the Department through its director in his official capacity.^[1] On May 17, 1984, plaintiffs moved for a peremptory writ and partial summary judgment. On August 14, 1984, the trial court issued its statement of decision finding the state foster care program invalid insofar as it excluded from eligibility foster children placed with related foster parents. On September 4, 1984, the court granted plaintiffs’ motion for peremptory writ and partial summary judgment. A timely appeal by the Department followed.

The foster care program is part of the program of aid to families with dependent children (AFDC)^[2] authorized in 42 United States Code section 601 et seq.^[3]

The purpose of the AFDC program is to encourage the care of dependent children in their own homes or in the homes of relatives. ( 42 U.S.C. § 601 .) AFDC-FC payments are greater than basic AFDC, upon a recognition that foster children have greater needs and foster care is more costly than care for children in the parental home. (See Ramos v. Montgomery (S.D.Cal. 1970) 313 F.Supp. 1179 , 1181-1182, affd., 400 U.S. 1003 [ 27 L.Ed.2d 618 , 91 S.Ct. 572 ].)

California’s program for foster care benefits is really two programs: one involving the use of federal funds, the other financed by the state alone. The state defines foster care as “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.” (Welf. & Inst. Code, § 11400, subd. (e).)

The first of the two foster care programs is the joint federal-state foster care program (“federal program”), partially funded by the federal government and administered by the state.^[4] To be eligible for foster care benefits under the federal program the child must have been receiving or eligible for AFDC-FG (family group) or AFDC-U (unemployment) prior to foster care placement. ( 42 U.S.C. § 672 .) In addition, basic eligibility requirements under the federal program mandate that (1) the child be removed from the home of parent or guardian by a judicial determination that con

tinuation in the home would be contrary to the welfare of the child; (2) the placement and care of the child is the responsibility of the state or county welfare agency and (3) the child is in a foster home or institution as a result of the judicial determination. ( 42 U.S.C. § 672 ; MPP 45-202.) The federal program, which prescribes payment to relatives equal to that received by nonrelatives, is not at issue here.

For foster children who do not meet federal criteria, California has its own foster care program funded entirely by the state.^[5] To be eligible under the state program, the child must meet all general AFDC requirements (Welf. & Inst. Code, § 11250) plus one of the following criteria: (1) the child has been properly relinquished for adoption or a petition to terminate parental rights has been granted; or (2) the child is living with a nonrelated legal guardian in an approved home; or (3) the child was placed with a nonrelative by a court order or under certain written voluntary agreements. Pursuant to the state statute challenged in this case, the child is ineligible for state benefits if placed with foster parents to whom he or she is related.^[6] (Welf. & Inst. Code, § 11402, subd. (a), see also, Welf. & Inst. Code, §§ 11401, subd. (b)(3); 11402, subds. (b)and(d); 11405; MPP 45-203.21.) The state program allows foster care payments to a child placed with relatives only if the child is otherwise eligible to receive payments under the federal program. (Welf. & Inst. Code, § 11402, subd. (a).)

State foster care eligibility provisions are much broader than those of the federal program. In other words, despite the denial of benefits to foster children living with relatives, many categories of recipients that would not be covered under any other AFDC program are covered under state AFDC-FC.^[7]

a compelling state interest nor rationally based, and thus denies them equal protection of the laws.

“The guarantees of equal protection embodied in the Fourteenth Amendment of the United States Constitution and article I, section 7 of the California Constitution^[1] compel[] recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.’ (Purdy & Fitzpatrick v. State of Calif. (1969) 71 Cal.2d 566 , 578 . . .; Reed v. Reed (1971) 404 U.S. 71 , 75-76 . . . .) ‘This principle, of course, does not preclude the state from drawing any distinctions between different groups of individuals, but does require that, at a minimum, classifications which are created bear a rational relationship to a legitimate public purpose.’ (In re King (1971) 3 Cal.3d 226 , 232 . . . .) However, this deferential standard is inapplicable “‘in cases involving ‘suspect classifications’ or touching on ‘fundamental interests’. . . .’” (Ibid.) In such cases, ‘the state bears the burden of establishing not only that it has a compelling interest which justifies the law but that distinctions drawn by the law are necessary to further its purpose.’ (Westbrook v. Mihaly (1970) 2 Cal.3d 765 , 784-785 . . . .)” (Darces v. Woods (1984) 35 Cal.3d 871 , 885 [ 201 Cal.Rptr. 807 , 679 P.2d 458 ], italics in original.)

As described by the California Supreme Court in Westbrook v. Mihaly (1970) 2 Cal.3d 765 [ 87 Cal.Rptr. 839 , 471 P.2d 487 ], the rational basis test has been applied by the United States Supreme Court in the area of economic and social welfare regulation where “the high court has exercised restraint, investing legislation with a presumption of constitutionality and requiring merely that distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state purpose. [Citations.]” (Id., at p. 784, see, Dandridge v. Williams (1970) 397 U.S. 471 [ 25 L.Ed.2d 491 , 90 S.Ct. 1153 ]; Jefferson v. Hackney (1972) 406 U.S. 535 [ 32 L.Ed.2d 285 , 92 S.Ct. 1724 ].)

Recognizing the independent vitality of the California Constitution, the courts of this state traditionally extend strict scrutiny to a broader range of classifications than are so rigorously reviewed under identical provisions of the federal constitution. (Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252 , 261 [ 172 Cal.Rptr. 866 , 625 P.2d 779 , 20 A.L.R. 4th 1118 ]; Serrano v. Priest (1976) 18 Cal.3d 728 , 764 [ 135 Cal.Rptr. 345 , 557 P.2d 929 ].) Thus, a few classifications not considered suspect under the United States Constitution have been termed invidious or suspect under parallel provisions of our state constitution. (See, e.g., Darces v. Woods, supra, 35 Cal.3d 871 [AFDC-eligible children who live with un

U.S. 633 . . . [same]; Yick Wo v. Hopkins (1886) 118 U.S. 356 . . . [race, alienage, national origin].) As in these lineage cases, appellant’s children are classified on the basis of an immutable trait and are relegated to an inferior status into which they are locked by accident of birth. For all of the foregoing reasons, the classification in the present case must be strictly scrutinized.” (Id., at p. 893, fn. omitted, italics in original.)

The classification here at issue does not touch upon any similar immutable trait. Plaintiffs do not suggest that the classification falls with disproportionate impact upon children of a particular race, ancestry or national origin. Nor can application of strict scrutiny be justified on the ground that prejudice against children placed or most likely to be placed in foster care with relatives “tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities . . . .” (U.S. v. Carotene Products Co. (1938) 304 U.S. 144 , 153, fn. 4 [ 82 L.Ed. 1234 , 1242, 58 S.Ct. 778 ].) Moreover, it is difficult to imagine any children who have control over the actions of their parents or the circumstances of their birth.^[8] Adoption of plaintiffs’ analysis would require courts to treat as a suspect class any group of children treated differently by government from any other group of children though the two groups are indistinguishable on the basis of all criteria traditionally used to determine whether a classification is suspect. Such a result is manifestly untenable. (See Tribe, American Constitutional Law (2d ed.) § 16-29, pp. 1077-1082.)

B.

A more difficult contention is raised by plaintiffs’ additional assertion, also concurred in by the trial court, that by refusing to pay foster care benefits to children living with related foster parents, the state has impinged upon the “fundamental interest of the children to live with the members of their extended family.”

The cases cited by the trial court and relied upon by plaintiffs, which we shall briefly assay, do not seem to us to support this contention. None of

these cases identify a fundamental interest of the sort claimed here in the context of an equal protection challenge. The fundamental interest identified in Serrano v. Priest (1971) 5 Cal.3d 584 , 597 [ 96 Cal.Rptr. 601 , 487 P.2d 1241 , 41 A.L.R.3d 1187 ] was education. (Id., at p. 604.) Waits v. Swoap (1974) 11 Cal.3d 887 [ 115 Cal.Rptr. 21 , 524 P.2d 117 ], invalidated a Department of Social Services regulation authorizing deductions from the basic AFDC grant to recipients sharing housing with “nonneedy” relatives, on the ground that the regulation was incompatible with the governing statutes. (Id., at p. 895.) Bixby v. Pierno (1971) 4 Cal.3d 130 [ 93 Cal.Rptr. 234 , 481 P.2d 242 ], considered the standard of review to be applied to an administrative decision of the Commissioner of Corporations approving a recapitalization plan. The court held that decisions affecting fundamental vested rights do not call merely for substantial evidence review but must be more stringently questioned under the independent judgment test. Nothing in Bixby sheds any light on whether the classification at issue in the present case affects a fundamental vested right of the individual.^[9]

Moore v. East Cleveland (1977) 431 U.S. 494 [ 52 L.Ed.2d 531 , 97 S.Ct. 1932 ], considered a zoning ordinance that made it a crime for certain related individuals to live together, including the appellants, a grandmother and her grandsons. Decrying the extent to which the ordinance invaded family privacy, the plurality opinion concluded that it violated the Fourteenth Amendment’s due process clause. (Id., at p. 501 [52 L.Ed.2d at pp. 538-539].) “When a city undertakes such intrusive regulation of the family . . . the usual judicial deference to the legislature is inappropriate. ‘This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.’ [Citation.]” (Id., at p. 499 [52 L.Ed.2d at p. 537].) “[W]hen the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation. [Citation.]” (Ibid.) Nevertheless, no finding was made that there was a fundamental right involved despite the fact that the city very explicitly contended that grandparents had no fundamental right to live with their grandsons. (431 U.S. at p. 500 [52 L.Ed.2d at p. 538].) Concluding that the ordinance “has but a tenuous relation to alleviation of the conditions mentioned by the city” (Id., at p. 500 [52 L.Ed.2d at p. 538]), the court held simply that it deprived the appellants of due process.

Though Robbins appears to recognize that the “right to choose the people with whom one lives” (ibid.) is a fundamental right protected under the privacy clause of our state constitution, the facts of Robbins are so manifestly different from those that confront us here that the case is not fairly analogous and cannot be deemed controlling. The statutes and regulations with which we are concerned certainly do not on their face prohibit family members from living together. Foster children living with relatives remain eligible to receive basic AFDC payments designed to meet essential needs. Additional needs are satisfied by social welfare services. Moreover, there is no evidence in the record before us indicating that foster children living with relatives receive lesser financial support, through the state and federal AFDC programs or otherwise, than the children would receive if they remained with their natural parents.

The California Supreme Court has observed that, “Although a fundamental interest may be involved . . . not every limitation or incidental burden on a fundamental right is subject to the strict scrutiny standard. When the regulation merely has an incidental effect on exercise of protected rights, strict scrutiny is not applied. (E.g., Zablocki v. Redhail (1978) 434 U.S. 374 . . . [regulations affecting the right to marry]; Califano v. Jobst (1977) 434 U.S. 47 . . . [same]; Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal.3d 294 , 303-305 . . . [reasonable limitations on placement of newspaper racks]; Gould v. Grubb (1975) 14 Cal.3d 661 , 670 . . . [rational basis standard applicable to numerous statutes detailing the mechanisms of the right to vote].) It is only when there exists a real and appreciable impact on, or a significant interference with the exercise of the fundamental right that the strict scrutiny doctrine will be applied. [Citations.]” (Fa ir Political Practices Com. v. Superior Court (1979) 25 Cal.3d 33 , 47 [ 157 Cal.Rptr. 855 , 599 P.2d46]; Choudhry v. Free (1976) 17 Cal.3d 660 , 664 [ 131 Cal.Rptr. 654 , 552 P.2d 438 ]; see Rittenband v. Cory (1984) 159 Cal.App.3d 410 , 421-422 [ 205 Cal.Rptr. 576 ].) Any impact by the foster care benefit limitations on the claimed right to live with relatives is “unintended, indirect, and, in any case, attenuated . . . .” (Rittenband v. Cory, supra, 159 Cal.App.3d 410 , 423.)^[10]

Accordingly, we evaluate the merits of the classification here at issue by the rational basis test, i.e., does the legislation meet the test of reasonableness? (See McCourtney v. Cory (1981) 123 Cal.App.3d 431 , 439 [ 176 Cal.Rptr. 639 ].)

“The California Supreme Court has expressed the rational basis test in various ways. ‘Some decisions require that the classification “‘bear some rational relationship to a conceivable legitimate state purpose’” (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 , 16 . . .); others, that the classification must rest upon “some ground of difference having a fair and substantial relation to the object of the legislation” (Reed v. Reed (1971) 404 U.S. 71 , 75-76 . . .; Brown v. Merlo (1973) 8 Cal.3d 855 , 861 . . .).’ (Newland v. Board of Governors (1977) 19 Cal.3d 705 , 711 [ 139 Cal.Rptr. 620 , 566 P.2d 254 ].) [Fn. omitted.] In Newland v. Board of Governors, supra, the court recognized the differences in terminology without choosing between them, holding that whichever ‘linguistic formulation’ is employed, the court must conduct ‘“a serious and genuine judicial inquiry into the correspondence between the classification and the legislative goals” [citation] . . . .’ (Newland v. Board of Governors, supra, 19 Cal.3d 705 , 711; see Cooper v. Bray (1978) 21 Cal.3d 841 , 848 [ 148 Cal.Rptr. 148 , 582 P.2d 604 ].)”^[11] (Rittenband v. Cory, supra, 159 Cal.App.3d 410 , 424-425.) We proceed with such an analysis.

At the time the parallel federal and state foster care programs with which we are here concerned were established, our Legislature declared that the purpose of foster payments was the provision of the “best substitute” home for those dependent children needing foster care. (Former Welf. & Inst. Code, § 11205, repealed 1982.) The legislative policy was restated in 1982: “The Legislature finds and declares that the family unit is of fundamental importance to society in nurturing its members, passing on values, averting potential social problems and providing the secure structure in which citizens live out their lives. ...” (Welf. & Inst. Code, § 11205.) The parties agree that “[t]he overriding state policy for foster care of neglected and/or dependent children is to provide such children with the best possible substitute home.”

The parties also agree that for those children who cannot be returned to their parental homes, the objective of the state’s foster care program is to provide stable, long-term out-of-home care. Criteria for foster care selection reflect a recognition that, all other pertinent considerations being equal, placement with a relative has the highest priority.^[12] Although the parties

dispute whether placement with a relative is of primary importance, both recognize that, ordinarily, placement with a relative serves the best interests of the child.^[13] Plaintiffs view placement with relatives as required to meet the central legislative purpose of providing the best possible substitute home for those children in need of out-of-home care and claim this central purpose is undermined by denial of benefits to foster children living with relatives. Plaintiffs further point to the Department’s concession that the needs of foster children placed with relatives are no different from the needs of children placed with strangers or in institutions, arguing that “differentiation between children equally in need ‘based on a living arrangement bearing no relationship to special needs that the AFDC-FC program was created to meet’ is simply unreasonable.” (Respondent’s brief, pp. 43-45, quoting Miller v. Youakim, supra, 440 U.S. at p. 145 [59 L.Ed.2d at p. 209].)

The Department counters that although importance is given to placing a child with relatives under the foster care program goals, the preeminent purpose of the legislative program is to provide for all of this state’s abused, neglected and orphaned children, not just those fortunate to have relatives available to care for them (see Welf. & Inst. Code, §§ 19.1, 10000) and to do so within the limits of public revenues made available for this purpose.^[14] (Id., § 10001, subd. (a).) Moreover, though the Department’s regulations contemplate that placement with a relative will usually best serve the needs of the child, the regulations make the best interests of the child, not the fact of a relationship by blood or marriage, ultimately the most significant consideration.

In the absence of an expressed legislative intention that foster placement with relatives shall necessarily take precedence over all placement alternatives, we agree with the Department that the legislative goals by which we must measure the reasonableness of the challenged classification are those pertaining to all social services programs; namely, the mandate to provide “protection, care, and assistance to the people of the state in need thereof” (Welf. & Inst. Code, § 10000) “within the limits of public resources” (Welf. & Inst. Code, § 10001, subd. (a)). As applied to the AFDC-FC program, this simply means that the maximum number of abused, neglected and orphaned children in need of foster care must be provided such assistance within the limits of public funds available for this purpose.

(See County of Kern v. Coley (1964) 229 Cal.App.2d 172 , 178 [ 40 Cal.Rptr. 53 ].)

With this goal as our yardstick, we conclude that the different treatment accorded foster children cared for by relatives and those cared for by others meets the test of reasonableness. That is, we believe the Legislature’s denial of benefits to children provided foster care by relatives is rationally calculated to achieve the goal of providing the maximum amount of needed foster care with available public funds.

A rationale that justifies this legislative treatment involves the judgments that more children in this state are in need of foster care than are now receiving it; that persons having a family tie to a child in need of foster care will often provide such assistance without any financial incentive to do so; that persons having no family tie to such a child ordinarily will not provide foster care unless financially induced to do so; and that if the savings resulting from the denial of benefits to related foster parents were instead used to increase the benefits to unrelated foster parents, more foster care would be provided to all children in need thereof than if the limited public funds available for this purpose were used to provide benefits to related as well as unrelated foster parents.

The only element of the foregoing rationale which plaintiffs challenge is the assumption that relatives will provide foster care without financial inducement. But their insistence that the denial of benefits operates to discourage the acceptance of parentless children by relatives is not only unsupported in the record, but is to some extent contradicted by the scant evidence plaintiffs themselves provide. The declarations of all representatives of the plaintiff class show that even relatives with very low incomes are highly motivated to care for their related foster children and do not reject them despite resulting sacrifices one would not expect of foster parents absent the family tie. None of the declarations submitted by plaintiffs indicate that the denial of state foster care benefits to foster children living with relatives actually has the effect of compelling or inducing such relatives to refuse to accept related foster children or to relinquish them to unrelated foster parents or even seriously to consider such alternatives. In short, plaintiffs have not made the factual showing necessary to support the theory of their case.^[15]

children of essential need items and subjecting their generous relatives to unwarranted hardships. If the department loses its gamble, as is all too possible, the children will lose the close family environment sought to be achieved by the act and the state will have to pay the higher cost of foster care. [If] In essence, the department has so enmeshed itself in fictitious and misleading labels for the sake of reducing welfare costs that it has obfuscated the purpose of the underlying statute: the preservation, so far as possible, of the family unit, and the more fundamental purpose of the preservation of the health of the state’s children, the potential leaders of tomorrow.” (Waits, supra, 11 Cal.3d 887 , 895-896, fn. omitted.)

Unlike the present case, however, the classification challenged in Waits appeared in an administrative regulation found to be in conflict with the controlling statutes. (Id., at p. 889.) Here, the regulation carries into effect the mandate of the Legislature^[16] and it is that legislative directive that is at issue. Additionally, Waits addressed a regulation affecting basic AFDC grants. The amounts deducted were considered “income” to the children in the form of housing and utility benefits. Relatives were in effect being required to pay for the child’s basic needs. Here, the children in question are not deprived of AFDC designed to meet their basic needs.

The rationale offered by the Department to demonstrate the reasonableness, and therefore the constitutionality, of the statute in question is essentially indistinguishable from that accepted by the three-judge federal district court in Youakim v. Miller, supra, 374 F.Supp. 1204 , to uphold the Illinois foster care program’s classification against an equal protection challenge. Because we find it persuasive as to this issue, we quote Youakim at length.

“At the time this statute was enacted, the Illinois General Assembly could reasonably have been concerned about how to use available public funds to provide as many foster homes as possible. It could reasonably have set out to provide for allocation of the available funds in a manner designed to

secure the maximum number of foster parents for children who would otherwise remain parentless. A reasonable method of achieving this goal would have been to provide for the distribution of funds only to persons who would otherwise have had no particular reason or incentive for becoming foster parents rather than allocating the funds to all persons who become foster parents and thereby reducing the amount received by each; and it is on this basis that the defendants assert the classification was made. Allegedly, the state perceived a moral obligation on behalf of related foster parents to care for their related children which could not or would not be deepened by providing them a pro rata portion of the available funds. Therefore, according to the defendants, the state decided that the money which could have been allotted to related foster parents would be better used as added inducement to unrelated persons. [11] This classification, the wisdom of which is not for us to determine, bears a rational relationship to the legitimate purpose of attempting to assure that foster homes are made available. Some related foster parents may not be able to afford the responsibility of caring for additional children,^[17] but the state argues that the scheme was not enacted to alleviate this problem, and from the fact that payments are not based on the relative wealth of the foster parents, this contention is borne out. . . . [U] [A]nalogous to the case at bar is Ramos v. Montgomery, 313 F.Supp. 1179 (S.D.Cal. 1970), aff’d, 400 U.S. 1003 , 91 S.Ct. 572 , 27 L.Ed.2d 618 (1971), a case involving a challenge to a California scheme under which AFDC payments made to natural parents were substantially less than payments made to foster parents. The Court in that case recognized that maintenance of the family structure was an important consideration in any child welfare program and that some natural parents were financially unable to provide suitable homes for their children, but nevertheless upheld the classification on the ground that the overriding purpose of the statute was the overall interest of the public in the protection of children [fn. omitted] and that this purpose was reasonably served by a plan which was motivated to provide as many foster homes as possible. [Fn. omitted.] The Ramos case is factually distinguishable from the case at bar, but the reasoning of the court is applicable here. A natural parent’s responsibility to its child may stem from a legal duty, whereas a related foster parent’s duty is moral, but in either case the result will generally be the same: the parent or relative is likely to care for the child. It is thus reasonable in either case for the state to adopt a program designed to induce families who would not otherwise become foster parents to assume that role. [IF] The challenged classification will cause some children to be separated from their relatives for financial reasons. The state may reasonably have concluded, however, that the greater good of the greater number of children in need of foster homes is served

by the classification which has been made. It may have concluded that if the classification were not made, the state’s foster homes program would be jeopardized. As the class eligible to receive payments is made more inclusive, the individual payments become smaller. The possibility exists that if related persons are added to the eligible cases, the individual payments would be reduced to an amount insufficient to induce qualified unrelated persons to provide foster homes for dependent children. Thus, the purpose of the payments would not be served, and either the fiscal integrity of the program would be impaired or the standards for approval of unrelated persons might have to be compromised. [Fn. omitted.]” (Id., at pp. 1208-1209.)^[18]

Although members of this court might prefer that the state provide foster care benefits to foster children living with relatives, the allocation of funds for public welfare purposes such as this must be left with the other branches of government where, as here, their determinations meet constitutional muster. As aptly stated by the United States Supreme Court in Dandridge v. Williams, supra, 397 U.S. 471 , 487 [ 25 L.Ed.2d 491 , 503]: “We do not decide today that the [state] regulation is wise, that it best fulfills the relevant social and economic objectives that [the state] might ideally espouse, or that a more just and humane system could not be devised. Conflicting claims of morality and intelligence are raised by opponents and proponents of almost every measure, certainly including the one before us. But the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court. The Constitution may impose certain procedural safeguards upon systems of welfare administration [citation]. But the Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients. [Citations.]”