CDCAN REPORT #213-2010: CalWORKS "Stage 3" child care lawsuit

SACRAMENTO, CA  (CDCAN) [Updated 11/05/2010 12:45 PM (Pacific Time)] - The 18 page ruling issued this afternoon by Alameda County Superior Court Judge Wynne Carvill  that ordered the State of California to continue funding of the CalWORKS “Stage 3” child care program until a new notice to the recipients and providers is issued by the California Department of Education regarding termination of the program and availability of other child care services, is attached to this CDCAN Report (file is titled “2010-11-05 - Parent Voices V OConnell and Wagner - Judges Order.pdf”  [CDCAN Note: the original order was in 18 different segments online, and I combined it together – unfortunately the court order was scanned as an image, so until I can locate a text version of the ruling, people who are blind or have sight impairments will not be able to use screen reading devices to read it. I retyped word for word the Judge’s actual order in this report however – Marty Omoto]

Funding Eliminated by Governor’s Line Item Veto in October

Funding for the Stage 3 child care program was eliminated when Governor Arnold Schwarzenegger, before signing the long delayed 2010-2011 State Budget on October 8th, used his line item veto power to cut nearly $1 billion in spending, including $256 million for the child care program.  Democratic legislative leaders have been working to secure temporary statewide funding for the program to keep it going at least until the Legislature returns in January – but the Judge’s order to continue funding temporarily was needed to avoid interruption of the child care services.

Some counties’s “First Five” commissions have approved temporary funding to keep their local county Stage 3 child care programs funded at least through the end of January – but other counties have not yet acted or may not have the available funding.

State funding for the program was scheduled to stop as of November 1st   as a result of the Governor’s line item veto – but was temporarily continued by an order issued by Judge Carvill on October 29th – until at least November 5th, to give the Court the time needed to hold a hearing on the case on November 4th and to issue a more permanent ruling the next day.

As reported in earlier in a CDCAN Report, the Judge’s order does not stop the termination of the Stage 3 child care program, which provides critical child care funding to over 55,000 children in low income working families – that includes many children and parents who have disabilities, mental health needs or other special needs,– but delays it – and continues funding until the State issues a new notice to those receiving the child care (recipients) and the contractors (providers) who provide it that is “consistent” with the Judge’s order issued today.  The Judge however declined to issue an order that would continue funding indefinitely – and also narrowed the request of those filing the lawsuit regarding fair hearings and “aid-paid-pending” (see below for details).

Judge’s Ruling Agrees Notice by State Not Sufficient – But Disagrees on Request by those Filing Lawsuit for Order that Would Continue Funding Indefinitely

The Judge agreed in part with those filing the lawsuit (Petitioners) argued regarding sufficient notice issued by the State  – and disagreed with other parts including the issue of an indefinite stay or order to continue funding, writing that:

Considering all of the foregoing, the Court concludes that Petitioners [those filing the lawsuit on behalf of the families in the Stage 3 child care program]  have made a sufficient showing to entitled them to some interim relief; however, the scope of that relief may not be as broad as they seek.  Given the termination of funding and the fact that their strongest showing on the merits is limited to the inadequacy of the notice to satisfy the State Due Process requirements, an indefinite stay of the CDE [California Department of Education] action and order mandating continued  aid-pending-hearing may be inappropriate.  At best, Petitioners may be entitled to require CDE [California Department of Education] to send out new notices advising Stage 3 recipients of the possibility that the contractors may be able to identify alternative child care services, that on request, the contractors will screen Stage 3 recipients for eligibility for such alternatives and that the contactors will facilitate such transitions where alternatives may be found.

Aid-Paid-Pending Issue

In his ruling the Judge disagreed  with those filing the lawsuit who argued that the families in the Stage 3 child care program have a broader right to file for fair hearings and “aid-paid-pending” (meaning the service would continue until a decision is made in the fair hearing), and instead came with a more narrow view that said families in the Stage 3 child care program would have a right to file for “aid-paid-pending” during the period of time that a new notice regarding the termination of the program is sent out (as ordered by the Court today) and “reasonable time” allowed for recipients to “come in and be screened” for other available child care services they may be eligible for:

Preservation of the status quo (and perhaps the CDE’s [California Department of Education] own regulations] may also require aid-paid-pending until such notice is provided and a reasonable time for recipients [families using Stage 3 child care] to come in and be screened for such alternatives.  Note that such relief is different from a right to appeal the decision to terminate Stage 3 funding; rather the issue is whether the notice was sufficient to satisfy the “dignity interest” unique to the California Due Process analysis that requires individuals to be informed of the nature, grounds and consequences of the action and, in this instance, Respondents’ [the State] availability and efforts to effectuate the continuity of care interest embedded in the statutory scheme.

JUDGE’S NOVEMBER 5th ORDER

The Judge’s order, issued this afternoon is as follows:

Based On the above analysis [in his complete order] and for good cause show, IT IS HEREBY ORDERED:

a.      That pending further order of this Court, Respondent CDE [California Department of Education] shall direct its contractors to notify recipients that the effective date(s) set forth in prior notices terminating Stage 3 child care services is/are stayed until a new notice is issued consistent with this Order.

b.      That any new notice terminating Stage 3 child care services shall advise recipients that contractors are available to screen them for eligibility for child care services in Stages 1 and 2 or other programs and will use their best efforts to place them in a manner consistent with the provisions of the California Education Code section 8263©;

c.       That Respondents shall appear in Department 21 of this Court at 1:30 p.m. on November 23, 2010, or at such other date and time as the parties may stipulate consistent with the Court’s calendar and show cause why a preliminary injunction and/or writ of mandate should not issue directing them to afford Petitioners [persons filing the lawsuit] the relief sought in the Petition [the lawsuit]; and

d.      That counsel [lawyers] shall appear in person or by CourtCall at 8:45 a.m. on November 15, 2010, for a Case Management Conference (no CM statements need be filed), the sole purpose of which will be to maintain, advance or continue the November 23rd hearing to accommodate any scheduling or other issues posed by that date.

Date: November 5, 2010      Wynne Carvill [Alameda County Superior Court Judge]

Judge Issued Temporary Order 10/29  That Continued Funding Until Court Hearing on November 4th

• Last week, on October 29th,  Judge Carvill ordered the state to continue funding of the Stage 3 child care program until Friday, November 5 to  give the court time “to hear evidence on this case … and make a ruling on the merits”. 
• The judge heard arguments in the lawsuit on Thursday, November 4th in Oakland. 
• The lawsuit – Parent Voices v. O’Connell and Wagner, was filed on October 28th by the Child Care Law Center and other public interest law groups in Alameda County Superior Court that wanted the court to issue an emergency order that would keep the child care funding “…in place and requiring the state to assist Stage 3 parents in finding other possible sources of child care assistance.”   The suit names California Superintendent of Public Instruction Jack O’Connell and the director the Department of Social Services, John Wagner because they head the two state agencies responsible for the Stage 3 child care program.

Stage 3 Child Care Helps Parents Who Are Employed & No Longer Receiving CalWORKS Grants

The “Stage 3” child care program helps parents who meet low income eligibility, who were previously in the CalWORKS program (the State’s “welfare to work” program) with child care costs.  The families in the Stage 3 child care program transitioned off the CalWORKs program for at least two years and do not receive CalWORKS grants.

Advocates Come to State Capitol – Give Packet of Information to Governor-Elect Brown

Yesterday (November 4) a large crowd of families in the Stage 3 child care program visited the State Capitol in blue shirts urging continuation of State funding – and one parent was able to give Governor-elect Jerry Brown, who was making his first visit to the State Capitol since his election, a packet of information about the issue.  The Governor-elect carried the packet with him as he left the State Capitol while dozens of child care advocates chanted his name in support.

File Attachments: 

2010-11-05 - Parent Voices v O'Connell and Wagner - Judge's Order.pdf