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).)
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' parents receive reunification services. The boys began living with Grandmother in Canada in December 1997.
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
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—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 placement on a minute order."
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)."
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 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, 131 Cal.Rptr.2d 656 (Joshua I).) The court first reasoned that under section 366.3, subdivision (a), a juvenile
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 Indian Tribe [was] assuring yearly medical and dental exams" and "school attendance," and was "assisting] [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
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 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.
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 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 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 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, 10 Cal.Rptr. 161, 358 P.2d 289; 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"
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, 90 Cal.Rptr.2d 236, 987 P.2d 705), 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 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."
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, 226 Cal.Rptr. 119, 718 P.2d 106, 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, 226 Cal.Rptr. 119, 718 P.2d 106.) 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 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."
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.
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 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
Contrary to the assertion of amicus curiae The Alliance for Children's Rights, the decision in Youakim, supra, 440 U.S. 125, 99 S.Ct. 957, 59 L.Ed.2d 194, 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, 99 S.Ct. 957.) 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, 99 S.Ct. 957) and "plainly states that a foster family home is the [licensed or approved] home of any individual." (Id. at pp. 137-138, 99 S.Ct. 957.) The court's discussion of the legislative history merely "fortif[ied]" its reading of the statutes' plain language. (Id. at p. 138, 99 S.Ct. 957.) Here, by contrast, as demonstrated above, the plain language of the relevant statutes does not support the boys' interpretation, and in construing a statute, we look first to its language. (People v. Murphy (2001) 25 Cal.4th 136, 142, 105 Cal.Rptr.2d 387, 19 P.3d 1129.) 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, 99 S.Ct. 957.) 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.
The Court of Appeal's judgment is reversed and the matter is remanded for further proceedings consistent with this opinion.
WE CONCUR: GEORGE, C.J., KENNARD, BAXTER, WERDEGAR, MORENO, and CORRIGAN, JJ.