AHWAHNEE HILLS SCHOOL v. COUNTY OF MADERA

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Court of Appeal, Fifth District, California.

AHWAHNEE HILLS SCHOOL et al., Plaintiffs and Appellants, v. COUNTY OF MADERA et al., Defendants and Respondents.

Civ. 7516 (F001575).

Decided: July 17, 1984

Steven A. Kivo, Encino, for plaintiffs and appellants. Harry A. Oberhelman III, County Counsel, and Lawrence J. Del Cerro, Deputy County Counsel, Madera, for defendants and respondents.

OPINION

This action challenges certain land use decisions rendered by respondents Madera County, Madera County Planning Commission and Madera County Board of Supervisors, collectively referred to as County.   Appellant Ahwahnee Hills School (AHS) operates group homes on each of three properties owned by appellants Benny Ruscelli and Eleanor Ruscelli (Ruscelli), Oakhurst, Ltd. (Oakhurst) and Sierra Homes, Ltd. (Sierra).  The group homes provide custodial care for children who are placed by welfare departments, probation departments, other public agencies and parents.   The living expenses are paid by the state or the parents of the children.

AHS applied to County for three conditional use permits in order to increase the occupancy of each home from six to eight children.

After a public hearing, County's planning commission denied all three applications.   AHS appealed the denial of the Ruscelli application to County's board of supervisors.   After a public hearing, the board denied the Ruscelli appeal, adopting its findings and decision.

Thereafter, AHS submitted a claim for damages on behalf of Derek Hanson and Greg Green, minors.   The claim sought damages for alleged violation of the claimant's right of privacy under the California Constitution.   County's board of supervisors denied the claim as being untimely.

Thereafter, AHS, Oakhurst, Sierra and Ruscelli filed a petition for administrative mandamus in case No. 28471, seeking review of the decision of the board of supervisors.   The petition alleged denial of a fair hearing and prejudicial abuse of discretion.

Appellants filed a first amended complaint as case No. 27998.   This action sought an injunction, declaratory relief, administrative mandamus and damages for invasion of privacy.

County made the return to the petition by demurrer based upon two grounds:  (1) failure to exhaust administrative remedies, and (2) statute of limitations under Code of Civil Procedure section 1094.6 and Government Code section 65907.

County generally and specifically demurred to the first amended complaint, the grounds of which were:  (1) failure to state a cause of action for violation of right of privacy, (2) noncompliance with the government Tort Claims Act;  (3) immunity under Government Code section 818.4;  (4) inappropriate remedy;  (5) failure to exhaust administrative remedies;  and (6) another action pending (see Code Civ.Proc., § 430.10, subd. (c)).

After all matters were consolidated for hearing, the trial court overruled the demurrer to the petition, but denied the application for a peremptory writ of mandamus.   In denying the application for a peremptory writ, the court found that the board of supervisors had provided petitioners a fair hearing, that the board's findings supported their decision, that the substantial-evidence test applied and that substantial evidence existed to support the board's findings.

The trial court sustained County's demurrer without leave to amend the first amended complaint, holding that Government Code section 818.4 provided an immunity for damages, that injunctive and declaratory relief were not appropriate remedies for review of an administrative decision, and that case No. 28471 was pending at the time case No. 27998 was amended to state a cause of action for administrative mandamus.

Both appeals were consolidated for decision by this court.

We conclude that the court erred in applying the substantial-evidence test in reviewing the evidence insofar as we hold that a fundamental vested right was at stake and, therefore, we hold that the case must be remanded in order for the trial court to make proper findings utilizing the independent-judgment test.

DISCUSSION

I.

State law provides that group homes housing six or fewer children shall be permitted use in residential zones.

Welfare and Institutions Code section 5116 provides:

“Pursuant to the policy stated in Section 5115, a state-authorized, certified, or licensed family care home, foster home, or group home serving six or fewer mentally disordered or otherwise handicapped persons or dependent and neglected children, shall be considered a residential use of property for the purposes of zoning if such homes provide care on a 24-hour-a-day basis.

“Such homes shall be a permitted use in all residential zones, including, but not limited to, residential zones for single-family dwellings.”

The statute, however, is silent as to group homes occupied by more than six persons.   In that situation, it appears state law does not preclude the zoning power of local entities.1  Welfare and Institutions Code section 5115 states the legislative intent applicable to section 5116.   That intent is to insure that mentally and physically handicapped persons are provided an opportunity to live in normal residential surroundings.

AHS and the group homes sought to increase the number of persons occupying the group homes in Madera by two persons per home to total eight children.   Although it has been the appellants' position throughout the proceedings that the Madera County zoning ordinance is unconstitutional, before additional children could be placed in the home, the county requires verification from the local authorities that the zoning is proper.   Thus, appellants had no alternative but to apply for a use permit in order to increase the occupancy of the group homes.

The trial court found it unnecessary to determine the constitutionality of the county's zoning ordinance, holding that the minors in this case did not have a right of associational privacy.   As such, the constitutionality of Madera County's zoning ordinance is not at issue.   The only real issues before us are whether minors have an associational right of privacy and whether that right was involved in this case.   Our determination of these issues will, in turn, determine whether the court erred in applying the substantial-evidence test.

 The standard of review for a trial court decision in administrative mandamus depends on the presence of a fundamental vested right.   If such a right is at stake in the local agency decision, then the trial court exercises its independent judgment on the record as a whole and is required to make findings of fact.  (Moran v. Board of Medical Examiners (1948) 32 Cal.2d 301, 307–308, 196 P.2d 20.)   If a fundamental vested right is not at stake, the trial and appellate courts perform the same function—the administrative record is reviewed for substantial evidence.  (Bixby v. Pierno (1971) 4 Cal.3d 130, 144, 93 Cal.Rptr. 234, 481 P.2d 242.)

The courts have identified fundamental vested rights on a case-by-case basis.   The test was restated in Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 34, 112 Cal.Rptr. 805, 520 P.2d 29, as follows:

“In Bixby v. Pierno, supra, 4 Cal.3d 130, at pages 144–147, 93 Cal.Rptr. 234, 481 P.2d 242, we explained the considerations which counsel in favor of fuller judicial review in cases involving vested, fundamental rights.   The essence to be distilled is this:  When an administrative decision affects a right which has been legitimately acquired or is otherwise ‘vested,’ and when that right is of a fundamental nature from the standpoint of its economic aspect or its ‘effect ․ in human terms and the importance ․ to the individual in the life situation,’ then a full and independent judicial review of that decision is indicated because ‘[t]he abrogation of the right is too important to the individual to relegate it to exclusive administrative extinction.’  [Citation.]”  (Emphasis in original.)

The fundamental right asserted here is the associational right of privacy of the minors.

California Constitution, article I, section 1, states, “All people are by nature free and independent and have inalienable rights.   Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”

In City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 164 Cal.Rptr. 539, 610 P.2d 436, the trial court issued a preliminary injunction prohibiting twelve unrelated persons from living together in a home in a family residence zone in violation of a provision of a city ordinance defining “family” as an individual or two or more persons related by blood, marriage or legal adoption or a group not to exceed five other persons.   The home was owned by Mrs. Adamson, a resident, and the other persons shared expenses with her.   The effect of the ordinance was to deny the group the right to reside together in a one-family, two-family or multi-family dwelling, a trailer or cabana or combination thereof, and a garden apartment development.

The California Supreme Court reversed, holding that the distinction drawn by the ordinance between related and unrelated persons violates the right of privacy guaranteed by California Constitution, article I, section 1.   The court held that the city had failed to demonstrate that any compelling public interest supported its decision to restrict communal living.  “We ․ hold invalid the distinction effected by the ordinance between (1) an individual or two or more persons related by blood, marriage, or adoption, and (2) groups of more than five other persons.”  (Adamson, supra, at p. 134, 164 Cal.Rptr. 539, 610 P.2d 436.)

In City of Chula Vista v. Pagard (1981) 115 Cal.App.3d 785, 171 Cal.Rptr. 738, the Court of Appeal, relying on Adamson, supra, held a similar zoning ordinance invalid in imposing a “rule of three” as to families consisting of unrelated persons.   The court went on to explain that a municipality may enact a zoning ordinance designed to prevent overcrowding, minimize traffic and parking congestion, and avoid undue financial burden on a city school system.   The court held that the municipality must do so by reference to floor space and facilities rather than biological or legal relationships.  (Pagard, supra, at p. 793, 171 Cal.Rptr. 738.)   The court also held the conditional permit ordinance invalid, though it appeared facially to take direct aim at the problem of overcrowding and its multiple attendant health and safety problems, since it impermissibly distinguished between the biological and unrelated “family” in favor of the biological family.   The court further held the ordinance was infirm in placing the free exercise of the constitutional right of privacy by the individuals involved in the hands of the city planning commission, pointing out that the city was free to deal with problems of overcrowding by less restrictive means.  (Id., at pp. 795–796, 171 Cal.Rptr. 738.)

 Appellants contend that children are encompassed in the words “All people” and, therefore, children also have a right of associational privacy.   We agree.

In Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 180 Cal.Rptr. 496, 640 P.2d 115, the landlord of a large apartment complex instituted an unlawful detainer action against tenants who failed to vacate the premises at the expiration of a lease extension.   The sole reason for the landlord's refusal to renew the lease was the presence of a minor child on the premises in violation of the no-children policy, which policy the tenants contended violated the Unruh Civil Rights Act (Civ.Code, § 51 et seq.).   The trial court granted the requested relief, concluding that the act applied only to a limited number of specifically designated protected classes and that the challenged ban on children fell outside the scope of the act.

The Supreme Court reversed, holding that the antidiscrimination provisions of the Unruh Act are not confined only to a limited category of protected classes, but rather, protect all persons from any arbitrary discrimination by a business establishment.   The court further held that the rights afforded by the act are enjoyed by all persons, as individuals, and that a business enterprise may not exclude an entire class of individuals on the basis of a generalized prediction of misconduct.   Thus, the blanket exclusion at issue was impermissible, even assuming children as a class were noisier than adults.   The court, however, found it unnecessary to address the constitutional issues.  (Marina Point, Ltd., supra, at pp. 724–725, 180 Cal.Rptr. 496, 640 P.2d 115.)

In In re Scott K. (1979) 24 Cal.3d 395, 155 Cal.Rptr. 671, 595 P.2d 105, the California Supreme Court held that the protection against unreasonable searches and seizures contained in California Constitution, article I, section 13, was applicable to the minor and rejected the prosecution's contention that because the parent is responsible for minor children and may himself inspect their property, a police search of that property when pursuant to parental consent is necessarily reasonable and accordingly constitutional.   In discussing whether children are persons protected by article I, section 13 of the California Constitution, the court stated:

“Minors are, however, ‘persons' under our Constitution possessed of rights that governments must respect.  (Tinker v. Des Moines School Dist. (1969) 393 U.S. 503, 511, 89 S.Ct. 733, 739, 21 L.Ed.2d 731 ․)  Fourth Amendment protection may be inferrable [sic ] from the court's recognition of minors' rights to privacy;  e.g., a state may not condition a minor's decision to have an abortion on parental consent (Planned Parenthood of Missouri v. Danforth (1976) 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 ․);  nor may it because of youth restrict one's access to contraceptives (Carey v. Population Services International, supra, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675).”  (In re Scott K., supra, 24 Cal.3d 395, 401, fn. omitted, 155 Cal.Rptr. 671, 595 P.2d 105.)

In a footnote, the court, citing a number of cases, noted that minors are entitled to constitutional protection for freedom of speech, equal protection against racial discrimination, due process in civil contexts, and a variety of rights of defendants in criminal proceedings, including the requirement of proof beyond a reasonable doubt, the prohibition of double jeopardy, the rights to notice, counsel, confrontation and cross-examination, the right not to incriminate one's self and the protection against coerced confessions.   (Ibid.)

Moreover, in Vescovo v. New Way Enterprises (1976) 60 Cal.App.3d 582, 130 Cal.Rptr. 86, a minor was held entitled to sue through her parent for invasion of her own right of privacy in her family home.

Even though the above cases do not deal directly with the right of associational privacy of children, we believe they demonstrate that children do not have lesser rights than adults under the California Constitution, article I, section 1, simply because they are children.

Respondents nevertheless seek to distinguish between the existence of a given right and the ability to exercise that right.2  Respondents seek to distinguish Adamson and Pagard on the basis that they involved situations where adults determined to live together with housemates of their choice and to share expenses, whereas the present case concerns children who are placed by probation departments, welfare departments, parents, etc. and whose living expenses are paid by the state or their parents.   Respondents conclude that a crucial factor—the exercise of free choice as to housemates—which was present in Adamson and Pagard is missing in this case.

While it is true that the Adamson case involved 12 adults who wanted to live together as a family, there is no indication that the people involved in the Pagard case involved only adults.   The Pagard case talks about “individuals”, “persons”, and “residents.”   There is no mention of adults in that case and considering the small amount of square footage and the large amount of residents in some of the residences, it is more likely than not that some of those residents were children.   In any event, we do not believe the proposed distinguishing factor stands up to scrutiny.

First, while it is clear that most of the children, such as Green and Hanson, are “placed” at the group home, there is nothing in the record to indicate that the children do not want to live in the group homes.   Moreover, simply because the child may not freely exercise a choice in family dwellings does not mean that the government may restrict his right of associational privacy.3

For example, if in the Adamson case one of the adult residents had a child who also lived at the residence, could Santa Barbara have enforced its zoning ordinance against the child simply because the parent and not the child chose where to live and who the housemates would be?   We think not.  (Compare Marina Point Ltd. v. Wolfson, supra, 30 Cal.3d 721, 180 Cal.Rptr. 496, 640 P.2d 115.)

As another example, assume that an agreement had been reached that eight unrelated elderly adults would live together as a family in Santa Barbara's single family residential zone.   The individuals had known each other for a long time and wanted to care for each other and keep each other's company.   Six of the individuals had chosen of their own volition to live together whereas two of the elderly adults, due to their mental incapacity, were under a conservatorship and their legal guardians had decided that living in a family situation with their friends whom they trusted to care for the conservatees would be in their best interests.   Under Adamson it is clear that Santa Barbara could not, under its zoning ordinance, restrict the six adults from living together as a family.   Could they under the ordinance, however, restrict the conservatees who did not choose of their own volition to live with the other adults of the family from living in the same residence simply because this choice was made by their legal guardians?   Again, we think the answer is obvious that they could not.

 In this case, we have a similar situation to the above hypothetical, i.e., although minors are incapable of choosing their residence,4 their right to privacy against governmental intrusion is not lost.

Parents or other appointed legal guardians must make the determination of what living arrangement would be most beneficial to the upbringing of the child.   Simply because a child is incapable of exercising his constitutional rights because parents, guardians or other court-appointed agencies charged with custody of the child must do so instead does not mean that he/she loses these rights.5  To the contrary, we believe it incumbent upon the custodial guardian of the child to insure the well-being of the child and to protect the child's rights against unconstitutional legislation which infringes on these rights.

The decision of Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d 721, 180 Cal.Rptr. 496, 640 P.2d 115, demonstrates that the California courts have determined that children, as a class, have a right not to be discriminated against in rental property solely on the basis of age.   Even infants may live alongside adults and have rights which cannot be explained to them nor asserted by them without the help of adult guardians.   In this way, the guardian may choose the best environment for the child without being precluded on the basis of some vague, negative feelings of a neighbor or landlord.

We believe children, in their unique position of helplessness, have the right to be wanted, to live in a healthy environment, to have basic needs satisfied, to receive continuous loving care and to obtain remedial treatment when needed.6  Where the custodial guardians of the children, as here, have decided that the best interests of the children is to live in a group home, the government may not restrict the implementation of their decision arbitrarily and without due regard to fundamental rights asserted on their behalf.

 We thus conclude that a fundamental vested right was involved in this case—the right of associational privacy—and, therefore, the court erred in failing to review the evidence under the independent-judgment test.7

II.

Appellants Green and Hanson contend that County's violation of their privacy resulted in personal injury and damages.   The trial court sustained the County's demurrer based on governmental immunity.

Government Code section 818.4 provides:

“A public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or similar authorization where the public entity or an employee of the public entity is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked.”

In O'Hagan v. Board of Zoning Adjustment (1974) 38 Cal.App.3d 722, 113 Cal.Rptr. 501, the plaintiff filed a mandamus action to set aside a decision of the city board of zoning adjustment revoking a use permit to operate a drive-in restaurant on the ground the drive-in was a public nuisance.   The operator of the restaurant was permitted to amend the petition to add a claim for damages after it was determined that the revocation of the permit was wrongful.   The trial court then entered a summary judgment in favor of the board and its employees on the ground that governmental tort immunity barred the claim for damages.   The Court of Appeal affirmed, rejecting contentions by the plaintiff that he obtained a vested property right to the use permit which could not be revoked, and that the injuries referred to in the Tort Claims Act embraced only personal injuries and not property rights.   The court also rejected plaintiff's contention that damages were recoverable under Code of Civil Procedure section 1095, providing that a petitioner who recovers judgment in a mandamus action may also recover damages against the public entity represented by the officer against whom the action is brought.   The court stated that the provision was in direct conflict with the provisions of the Tort Claims Act providing a clear-cut immunity for discretionary acts in general and for licensing activities in particular, and that overriding policy considerations require that the specific immunities provided for public entities and employees in the Tort Claims Act take precedence over the liabilities established in Code of Civil Procedure section 1095.

 Here, the County exercised its discretion in denying appellants' application for a use permit.   Therefore, Government Code section 818.4 provides the County with governmental immunity against a suit for damages caused by its exercise of discretion.

Appellants cite federal authorities to the effect that the deprivation of federal civil rights gives rise to a claim for relief.   Respondents do not dispute this.   Respondents, however, point out that appellants have not pled federal civil rights statutes, i.e., 42 United States Code section 1983.   All of the cases cited by appellants deal with 42 United States Code section 1983 and are therefore distinguishable from the instant case.   Appellants have cited no authority to support their contention that Government Code section 818.4 does not apply to immunize the County in this case.   Therefore, the trial court's demurrer as to the cause of action for damages is affirmed.

III.

Under Strumsky v. San Diego County Employees Retirement Assn., supra, 11 Cal.3d 28, 44–46, 112 Cal.Rptr. 805, 520 P.2d 29, the judgment is reversed and the cause is remanded to the trial court for further proceedings consistent with this opinion.

I respectfully dissent from parts I and III (only).

Under state law (Welf. & Inst.Code, § 5116) local agencies are prohibited from imposing land use requirements on state licensed group homes for up to six children if placed in a residential zone.   The board of supervisors recognized this and found that expansion of the subject facility from six to eight persons would be a commercial land use.   The trial court found substantial evidence supporting the finding, and denied the petition for mandamus.

The majority reverses on the ground that resident children have an associational right of privacy which is a fundamental vested right, and that therefore the trial court should have exercised its independent judgment rather than reviewing under the substantial evidence test.

I agree that minor children enjoy an associational right of privacy.   I believe, however, that such a right is irrelevant to this action.

The cause of action for administrative mandamus was brought by Ahwahnee Hills School and the owners of the group home.   It was not brought by, or on behalf, of the children who resided therein or by children who wished to reside there.   The action was prosecuted by persons who stood to gain by placing additional children in a home, thereby obtaining increased revenue.

Even if the minors, Derek Hanson and Greg Green (who were parties to other causes of action), had been parties to the mandamus action, I do not feel that appellants' position would improve, for they were already living in the Ruscelli group home.   No governmental action restricted their rights to live there.   The only issue is whether adults can increase the home's income.   Mr. Kivo, appellants' lawyer here and before the Madera County Board of Supervisors, said before that body, “the reason for asking for the expansion from six to eight children is strictly a financial one.”

If emancipated minors had decided to live together, as adults did in City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123, 164 Cal.Rptr. 539, 610 P.2d 436, their associational right of privacy might be involved if the county took the position that they thereby violated a zoning ordinance.   Further, I cannot differentiate that situation from one where the children's parents or guardians sought to place the children in such a home.   But as to those children who have been placed by probation departments or departments of social welfare, there is no associational right of privacy at all.  (The record is silent as to whether all six children in the subject home have been so placed.)   As to such a child, the state has intervened to suspend the rights of the parent or guardian to determine the child's living arrangements.   It has removed the child from their custody.  (Welf. & Inst.Code, § 726.)   Neither the parent, guardian or child has any associational right of privacy in respect to where the child will reside in such a case;  none of them has any control as to where the child will be placed or when the child will leave that placement.   That decision is made by the state, which does not rely on article I, section 1, of the California Constitution in order to make its order of placement.   If the appellants wished to rely on a minor child's associational right of privacy, it should have proven that a parent or guardian of a child who is not a court ward wishes to live in the Ruscelli home and may not because of the limitation of six.

I should not conclude without discussing policy.   The subject home is run by a husband and wife who evidently have their own children living with them.   They also have six nonrelated children living there who for some reason cannot or should not live in their own homes.   Such a living arrangement is sufficient to tax the energies and capacities of the most ideal house parents.   By the time that the physical needs of the facility and the children are attended to, there is scarce time for counseling.   This would be exacerbated if the number of children is increased.   The more children there are (and the majority does not seem to place a cap on the number eight), the more likely it is that the children will be warehoused in an institutional setting.   Although the Legislature left it to local jurisdictions to determine by their zoning whether more than six children should be permitted in group homes in residential neighborhoods, the number fixed in section 5116 of the Welfare and Institutions Code may be viewed as a legislative suggestion of the maximum occupancy of a facility which wishes to call itself a group home.

Aside from the goal of providing a homelike setting to the children, consideration should be given to the neighborhood.   As the number of children is increased from six to eight, ten, twelve or more, there is a greater likelihood that unsupervised children will change the quality of life in the area.   Although six is not a magic number, it accommodates the need of society for a home for these children and the need of nearby residents for peace.

If group home rates are so low that it is impracticable to run homes with just six children, the remedy is a change in the rates.

For all of the above reasons, I would affirm.

FOOTNOTES

FOOTNOTE.  

1.   The Attorney General has opined, however, that local entities may not impose conditions on such group homes which are not imposed on other homes.  (61 Ops.Cal.Atty.Gen. 490 (1978).)

2.   Although it is not clear, it does not appear that County is asserting appellants lack standing to bring this action on behalf of the minors.   It is clear that County did not contest appellants' standing to bring this action at trial.   County counsel stated, “Respondent is not contesting the standing of the Petitioners or the appointment of the guardian ad litems to bring this action.   And the other action, the other complaint.  [¶ ]  Respondent is stating that the Adamson right of privacy does not extend or is not possessed by the minor in this case, and it is upon that ground in which we are challen[g]ing the basis of their right.”Had the standing issue been clearly asserted it is nevertheless without merit.  (See, e.g., Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 172 Cal.Rptr. 866, 625 P.2d 779;  People v. Barksdale (1972) 8 Cal.3d 320, 333, 105 Cal.Rptr. 1, 503 P.2d 257;  Harman v. City and County of San Francisco (1972) 7 Cal.3d 150, 159, 101 Cal.Rptr. 880, 496 P.2d 1248;  People v. Belous (1969) 71 Cal.2d 954;  963, fn. 5, 80 Cal.Rptr. 354, 458 P.2d 194;  Chico Fem. Women's Hlth. Cr. v. Butte Glenn Med. S. (1983) 557 F.Supp. 1190, 1200.)

3.   We note that while many children are placed in group homes by order of the court, others are placed not by court order (for example, by mental health departments), while still others are privately placed by the parents themselves.   Intent to reside in a group home should not be the controlling factor.   First, intent or the “volitional” element is rarely susceptible of direct proof.   Second, it is conceivable that a child placed in a group home by court order would want to be sent to a group home (rather than juvenile hall, for example), and it is equally conceivable that a private placement child might not desire to live in such a home.   Hence, intent or volition should have no bearing on the issue before us.

4.   Welfare and Institutions Code section 17.1 provides in pertinent part:“Unless otherwise provided under the provisions of this code, to the extent not in conflict with federal law, the residence of a minor person shall be determined by the following rules:“(a) The residence of the parent with whom a child maintains his or her place of abode or the residence of any individual who has been appointed legal guardian or the individual who has been given the care or custody by a court of competent jurisdiction, determines the residence of the child.”

5.   Specifically, we reject the notion that a ward of the court, such as a dependent child, may be relegated to the role of a second class citizen with fewer rights simply because the court and not the natural parents must determine the living arrangements.

6.   The family units formed by the union of AHS and the Department of Social Services are closer in nature to a traditional family than those unrelated individuals between the ages of 20 and 30 residing in Mrs. Adamson's house.   This “family” has children, guardians (parents), legal ties, a steady income, a program for recreation, family meetings, communal dinners and its permanent household concept is not tampered with except under carefully planned circumstances in which the children are the first and frequently the only consideration.   This “family” is not much different from a home where seven, eight, or nine children live with their parents in the family residence.   As with all families, the quality of the parents will determine how well the children are reared.   It is common knowledge that some parents with nine children are more successful in properly rearing a family than some parents with only two children.While we recognize the concern that the quality of life in a given residential area may be changed by the greater amount of children in these families, this concern is best left to the Legislature to provide a cap and to the local governing bodies which may set up constitutionally sound zoning restrictions.

7.   Because we reverse on this ground, we deem it unnecessary to review the record for substantial evidence as urged by appellants.

ZENOVICH, Associate Justice.** FN** Retired Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.

PAULINE DAVIS HANSON, J., concurs.