Opinion
A155061
02-24-2020
In re J.F., a Person Coming Under the Juvenile Court Law. HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. T.W., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. JV140093)
On June 29, 2018 and following a contested dispositional hearing under Welfare and Institutions Code section 387, the dependency proceeding was dismissed, T.W. (mother) was awarded sole legal and physical custody of J.F. (the child), and visitation was granted to the child's presumed father (father) and the de facto parents who were the child's former foster parents.
All further unspecified statutory references are to the Welfare and Institutions Code.
Mother now asks us to vacate: (1) a modification of the section 387 jurisdictional finding against father, (2) an order granting de facto parent status to the former foster parents; and (3) portions of the orders granting father and the de facto parents unsupervised visits with the child in the presence of other persons. We affirm.
Both the agency and the child have filed responsive briefs opposing mother's appeal. Father and the former foster parents have not filed responsive briefs.
FACTUAL AND PROCEDURAL BACKGROUND
a. 2014 Juvenile Court Proceedings
Mother and father were teenagers when they became the parents of the child. In June 2014, the Humboldt County Department of Health and Human Services (the agency) filed a section 300 petition alleging the seven-month-old child was at risk of harm due to mother's substance abuse, mental health, and anger management issues. In June 2015, the court granted parents shared legal custody, removed the child from mother's physical custody, granted father physical custody, and granted mother supervised visitation.
b. 2015 Juvenile Court Proceedings
In September 2015, the agency again took custody of the almost two-year-old child, pursuant to a protective court warrant based on allegations that there was no appropriate caregiver available to care for the child. Mother was then suffering from mental health and substance abuse issues, the child's maternal extended family members could not care for the child, and father was suffering from mental health and substance abuse issues and "possible domestic violence" issues. The agency filed a section 300 petition alleging the parents' substance abuse and father's domestic violence put the child at risk of harm as described in subdivisions (a) (serious physical harm) and (b) (failure to protect).
Following contested jurisdictional and dispositional hearings, completed by October 2015, the court (Hon. W. Bruce Watson) sustained the petition's allegations, declared the child a dependent of the court, removed the child from the parents' custody, and directed the agency to provide reunification services for both parents. The child was initially placed in a foster care home and then placed in the home of the child's paternal great aunt and uncle. After the paternal great aunt and uncle gave notice that they could no longer care for the child, in January 2016 the agency placed the 26-month-old child in the home of the paternal great aunt's sister and her husband (hereinafter referred to as foster parents, former foster parents, de facto parents).
The Honorable Christopher G. Wilson presided at the six-month review hearing, which was continued for several months and ultimately held on August 1, 2016. At the six-month review, the court continued parents' reunification services and the child was ordered to remain in the home of the foster parents. Four months later, on November 30, Judge Wilson presided at a contested 12-month review hearing. The court again continued parents' reunification services and the child was ordered to remain in the home of the foster parents. The 18-month review hearing, initially set for May 30, 2017, was continued for several months and ultimately combined with the 24-month review hearing.
At the May 9, 2016 hearing, the agency's counsel informed the court the case would be transferred to Del Norte County for courtesy agency services and legal representation in response to mother's concern of a conflict of interest within the office of county counsel for Humboldt County.
At the June 27, 2017 hearing, the agency's counsel confirmed that Del Norte County was no longer providing courtesy agency services and legal representation and the agency had resumed supervision of the case and private counsel had been assigned to represent the agency.
The Honorable Joyce D. Hinrichs presided over several hearings to address the combined 18-month review and 24-month review. On September 6, 2017, the court, having read the "entire file" consisting of four or five volumes and on its own motion, vacated the scheduled contested hearing and directed the parties to attempt to either settle the matter or determine what issues should be the focus of the contested hearing. The court explained its reasons for so ruling: (1) there had been "months and months of delays that are, frankly, attributable to the" agency; (2) there were many issues that would "need to be" resolved at a hearing, including the court's belief "that [f]ather needs to be looked at completely and freshly . . . because there continue[d] to be statements [made] about him that have never been borne out by any testimony or contested hearing," and "[t]here [were] statements of domestic violence that occurred . . . with another [woman]" for which a "contested hearing [had been held] in another court and findings made" that might "be res judicata . . . to some extent . . . in regards to" this juvenile dependency; and (3) if there were plans to return the child to the custody of either parent, the court would have to consider the issues of (a) "a parenting plan" between parents who had no relationship, (b) the "presumption of [m]other getting custody, if, in fact, there is proof of domestic violence," and (c) whether and to what extent it was "important" to preserve the child's relationship with the child's existing substitute care provider.
Judge Hinrichs told the parties they had the choice of either stipulating that she would preside at both the settlement conference and contested hearing, or have the settlement conference and contested hearing conducted by different judges. While mother's counsel had some concerns regarding the judge's "impartiality" based on certain comments made at an earlier proceeding, counsel agreed to stipulate to having the judge preside at both the settlement conference and contested hearing. Judge Hinrichs refused to accept counsel's stipulation in light of counsel's remarks, and determined she would preside over the settlement conference and any contested hearing would be heard by a different judge.
After several days of conferences, the parties reached a settlement accepted by Judge Hinrichs, which terms were embodied in written findings and orders filed on October 2, 2017. In pertinent part, both parties were found to have consistently and regularly contacted and visited the child, complied with their case plans, and made adequate progress toward alleviating the causes necessitating the court's intervention. The agency was ordered to provide family maintenance services to both parents who were to share 50-50 custody of the child. All parties were ordered to comply with negotiated family case plans and visitation orders. The case was set for a family maintenance review on March 27, 2018.
c. 2017 Section 387 Supplemental Petition (§ 387 Petition)
Within two months of the resolution of the section 300 petition, on December 7, 2017, the agency filed a section 387 petition alleging that the court's order of shared custody had not been effective in protecting the child for the following reasons:
"On 09/28/2017, the minor was placed in Family Maintenance Services with 50-50 custody between the mother and the father. On 11/24/2017, a referral was received alleging that the minor had been spanked or hit on his buttocks, leaving marks . . . . On 12/02/2017, a referral was received alleging that the minor was hit on his face, leaving marks, by the father's girlfriend. An investigation on 12/02/2017 of that referral determined that the girlfriend had hit the child and a Safety Plan was agreed upon where the minor would be in the home of the paternal grandmother for the weekend. On 12/04/2017, at a Family Team Meeting, a second Safety Plan was created requiring the father's girlfriend to be out of the father's home when the minor was
present. On 12/05/2017, information was received by Child Welfare Services indicating that the father had hit the minor on the [b]uttocks, leaving marks on 11/23/2017. The father's actions in spanking the minor so hard that marks were left, presents a risk of physical abuse to the minor. The minor was detained from the father and released to the mother."The agency recommended that the court modify its shared custody order by granting mother full physical custody of the child, with family maintenance services, until father was able to demonstrate his ability to use non-corporal discipline and provide a safe home for the child; in the interim, the agency recommended father's visits should be supervised. Pending the jurisdictional hearing on the section 387 petition, the court removed the child from father's custody, directed the agency to continue the child's placement in mother's home, and ordered that father would be allowed supervised visits with the child outside the Family Center with appropriate supervisors.
In its jurisdictional report to the court, the agency described in great detail its investigation of the two incidents specified in the section 387 petition. At issue here is the allegation that, on November 23, 2017 (Thanksgiving), father hit the child on the buttocks, leaving marks. On November 24, mother had reported to the agency that she had noticed a visible handprint on both cheeks of the child's buttocks that extended to the lower back area. Pictures were taken of the injuries. The agency spoke with father, father's girlfriend A.W., who was living with father, and A.W.'s grand-father D.S., all of whom were present at father's home on November 23 at the time of the incident.
Father reported to the agency that, on November 23, he was living with A.W. and their child (V.F.), who was J.F.'s younger half-sibling. That morning, father went to work leaving the child with A.W. and V.F. When father returned from work, the children were playing and father did not notice any marks on the child. During Thanksgiving dinner, the child had some tantrums and was given time outs. The next morning, father helped the child in the bathroom to get ready for the day; father did not notice any marks on the child.
D.S. reported to the agency that he was present at father's home on November 23 for Thanksgiving. During the entire dinner the child was in the child's bedroom. While in the bedroom the child was pounding on the walls and the window. Both father and A.W. took turns yelling at the child, but neither allowed the child to leave the bedroom. At one point father went into the child's bedroom and D.S. heard slapping, approximately four slaps, and "it was clear that" father was hitting the child with his hand. While A.W. had also checked on the child "by putting her head" in the child's bedroom, D.S. did not see A.W. actually go into the child's bedroom.
A.W. reported to the agency that during Thanksgiving dinner the child "started to tantrum" and was sent to the child's bedroom. While in the bedroom the child was screaming and banging on the walls and windows. Father walked into the child's bedroom, and A.W. heard "three hits," and then father walked out and returned to the dinner table. Father later went back and asked if the child was ready to come out but the child said no. Father went back into the room and A.W. heard "two to three more hits" and then father walked out and returned to the dinner table. A.W. asked father if he hit the child and father did not respond. The next morning, the child came out of the bedroom and was cheerful and happy. When A.W. was preparing the child for a shower, A.W. saw bruises on the child's buttocks. A.W. again asked father if he had spanked the child and father did not respond. When A.W. asked father, " 'how hard did you spank' " the child, father again did not respond. Thereafter, A.W. prepared the child for his visit with mother. A.W. reported that father's conduct was "unusual" as typical discipline for the child was long or short "time outs," but not physical discipline.
1. Section 387 Jurisdictional Hearing
On January 3, 2018, Judge Hinrichs presided at a contested jurisdictional hearing on the section 387 petition. The agency and child's counsel submitted on the agency's jurisdictional report, which was admitted into evidence and considered by the court.
Father testified, in pertinent part, regarding the Thanksgiving Day incident. On that day, father went to work while the 4-year-old child remained at father's home with A.W. and V.F. When father returned from work, the child was "[h]appy, playful, no behavioral issues or concerns," and remained so until dinner time. The child became "very rude," "a little bit violent," and hit V.F. The child was also on the ground; "just tantrum behavior." The child engaged in such conduct a few times a month. Both father and A.W. made the decision that the child should have a time out. A.W. put the child in the child's bedroom. After five minutes father and A.W. checked on the child; the child was banging on the walls, throwing toys, and yanking books off a bookshelf. Father took the toys out of the bedroom, put the books back on the bookshelf and turned the bookshelf around so that the child could not remove the books. Father told the child the reasons for the time out. Father confirmed that D.S. was present in the house before the child was sent for a time out and during the time out episode. The child finally calmed down, wanted to use the bathroom, and wanted something to drink and eat. A.W. took the child to the bathroom, and then the child was given dinner and "just kind of calmed down after that." According to father, the child's time out lasted "maybe a half hour," and was finished while the rest of the family was "three quarters of the way through the Thanksgiving meal."
Father read the agency's report that A.W. and D.S. had said they heard the sound of spanking when father was in the child's bedroom. Father denied spanking the child. When he was in the bedroom, there were sounds that could have been mistakenly interpreted as a spank when the child was hand-smacking the walls and windows and "just basically running around" the room "hitting everything, flopping on the ground," and "causing quite a ruckus."
The day after Thanksgiving, father helped the child to get ready to visit mother. Father helped feed the child and put on the child's shoes. A.W. gave the child a shower that morning. Father denied that A.W. ever asked him if he had spanked the child. Father also denied ever spanking the child; the child was disciplined with time-outs and the loss of privileges or toys.
Father confirmed that the photographs of the child attached to the agency's report showed marks on the child's buttocks; "[t]he pictures are not very clear, but you can still clearly see that there is discoloration." Father did not know when the photographs were taken, and he never saw similar marks on the child.
At the time of the incident, father had known A.W. for four or five years, they had lived together, off and on for a year and a half or two years, and V.F. was then a year and a half old. Father had never seen A.W. hit or strike either child. However, father testified that A.W. had entered the child's bedroom during the time out episode, and he believed A.W. may have caused the marks on the child's buttocks because, earlier that day, father and A.W. had argued and A.W. said she was under a tremendous amount of stress, having to prepare dinner and the house for company. According to father, A.W. was not an honest person, and she was " 'far more likely to hurt [the child] than to hurt [V.F.] because [the child] is her step[child].' " Father told the agency social worker he thought A.W.'s discipline style was "harsh sometimes" because A.W. did not explain to the child the reason for time outs, but "was more just like here you go, you're in your room and I'll come and check on you later and let you out . . . ." Father agreed it was not a good idea to have a dishonest person caring for the child when father was not present.
Following argument by counsel, the court explained its reasons for sustaining the section 387 petition. After commenting on the history of the case and father's complex arrangement with A.W., which was a situation created by father, the court stated in pertinent part (bolding added):
". . . [W]ith all that's gone on - the fact that [the child] would tantrum in [the] situation is nothing but normal, and that . . . of all the people in this room, [father was] the one throughout [the child's] life if [father had] taken action just for [the child], [the child] wouldn't have been through all of the things that [the child has] been through.
"So in this situation - it would be one thing to say if there weren't any bruises on [the child] to say what they heard in that room - who knows what that was, but there were bruises on [the child]. So either [father] did that, which [father denies] and nobody saw it, or [father] allow[ed] [the child] to be in a chaotic home with [A.W.]. And, frankly, I don't believe the testimony that you didn't have any reason to believe that she might be harsh - overly harsh - in her discipline and using corporal punishment.
"In fact, I find it hard to believe that [father] would have back in [his] home a woman who, by [his own] testimony, filed false domestic violence charges to manipulate you and then allow her to be in your home. . . .
"And so to the extent that the - I don't believe the petition shows that the father spanked the child, but I do believe that there is proof that it happened while in the father's care and that he did not provide adequately for the protection of the child with things that he knew or should have known.
"[A.W.] does not come to us with a clean slate. [Father has] an extensive history in regards to the situation. And I think that in light of the efforts or the emotions that were building up, the actions
that occurred to [the child] were clearly foreseeable on [father's] part.
"I can't consider what the outcome of this petition being found true is, but it needs to be found true because that's what the evidence shows and then things will fall where they need to fall. . . .
" . . . [A]nd then not only that instance, but undisputed is the slap. Which if that Thanksgiving day was as elaborate as talked about from a number of parties, then certainly the latter act you know, makes some sense. And the frustrating part is . . . that apparently [father] didn't have close enough care of [the child] to see the bruises initially.
"So those are all - the Court is finding that the [section] 387 petition as filed is sustained."
In a written trial court form for jurisdictional findings and orders, filed on January 3, 2018, Judge Hinrichs found, in pertinent part, "the 387 Supplemental Petition filed on [December 7, 2017] is sustained."
Thereafter, during the section 387 dispositional hearing, the parties appeared before Judge Hinrichs for a ruling on father's request for clarification of the jurisdictional ruling. Counsel for mother and father agreed there was either a "discrepancy" or "inconsistency" concerning some of the court's remarks made "on route to" sustaining the petition. Father's counsel asked the court to "clarify if [it] intended to strike that part of the petition where it says the father spanked the child hard enough to leave bruises, or if [the court] had something else in mind when [it] entered [its] findings and orders."
Judge Hinrichs found that, at the time of the January 3, 2018 hearing, she should have modified the factual allegations in the petition to reflect her actual finding as reflected in the reporter's transcript:
"I looked at the transcript and I've looked at what I outlined that I've had and I do believe that I was not as detailed as I should have been.
"The Court's finding is that the Department or any other individuals supporting the Department's position did not maintain a burden of proof that father personally hit or spanked the child and left the bruises on the child.No objection was lodged to the court's ruling by either counsel for father or mother. Consistent with the ruling, Judge Hinrichs made handwritten interlineations on the filed section 387 petition, striking the words, "The father's action in spanking the minor so hard that marks were left," and adding words so that the allegation as modified read: "The child was spanked so hard by someone while in the father's care that marks were left, presents a risk of physical abuse to the minor."
"The Court finds it occurred while [the child] was in the father's care, and that whatever that will end up meaning as it relates. But . . . I found, as I said in the transcript, that I did not find the father did the spanking and . . . they did not maintain the burden of proof. I found that it occurred in his care, and what that means, it's entitled to, but that's the Court's finding.
"I think it's clear - not to relitigate - that that's exactly what I meant to do and I should have revised the petition."
2. Section 387 Dispositional Hearing
Before the section 387 dispositional hearing held in May and June 2018, the parties filed extensive at-issue memoranda and pre-trial statements. Mother sought termination of the dependency, sole legal and physical custody of the child, termination of father's visits with the child, and the denial of any visits with the child's former foster parents and certain of the child's maternal and paternal relatives. The child's counsel was opposed to mother's visitation requests, arguing that there was no basis to stop all visits with father and that the child had asked about the former foster mother as recently as February 7, 2018. Father's counsel argued for the return of the child to father's custody.
The Honorable John Feeney, a visiting judge assigned to hear the case in Humboldt County, presided over a 12-day contested section 387 dispositional hearing. The court considered various documents, including the agency's dispositional report, the child's mental health records prepared by the agency's mental health case manager, and a May 13, 2017 evaluation summary of father's mental health prepared by a licensed marriage and family therapist. The court also heard testimony from mother and father, the agency social worker assigned to the case since December 2017, several service providers for the child and mother, a mental health therapist who had seen the child for five one-hour sessions between January and May 24, 2018, a representative of CASA [court-appointed special advocate], the agency social services aide who had supervised father's visits with the child since March 2018, and the social worker assigned to mother's own dependency case. During the dispositional hearing, and over mother's objections, the court granted de facto parent status to the child's former foster parents and allowed the de facto mother to question mother and present a closing argument.
Following closing arguments and before rendering its findings and orders, Judge Feeney made the following observations: "It's clear to me that both mother and father are very articulate [and] . . . very intelligent. I have no doubt that [the] young [child] is also a very bright and intelligent young [child]. . . . But it's also very evident to me that [the] young [child] has a lot of family and friends who love and care about him very much. [¶] . . . [A]ll parties ma[d]e very thorough and articulate statements as to their respective positions and what they think . . . is in the best interests of [the child.] I'm . . . going to order that this dependency case be terminated, . . . as - I hope I'm right, . . . at this point I . . . do not feel that further supervision is necessary to protect the child. And I note that this is not agreed to by the majority of the parties and their counsel here today. I totally recognize that." In making his specific dispositional findings and orders, Judge Feeney further explained his reasoning: (1) the dependency was dismissed and mother was granted sole legal and physical custody of the child as it was both "clear" and "unfortunate" that the parents "are not able to co-parent . . . for [the child's] best interests;" (2) the court "still will be providing father with unsupervised visitation with [the child] on Tuesdays and Wednesdays from 10:00 a.m. to 6:00 p.m., with exchanges to occur at the [named city] Police Department, unless and until the parents can indicate they can peacefully make exchanges under other circumstances. But I'm not sure if that's going to occur;" and (3) the "de facto parents . . . will be given unsupervised visitation . . . not for as many hours as [they] had requested. But it will be on the first Saturday of each month from 10:00 a.m. to 6:00 p.m. And I think mother and the de facto parents, likely, will be able to agree on the place and exchanges for the visitation by the de facto parents. [¶] But absent an agreement, the exchanges will occur at the [named city] Police Department. And should [the child] be ill or otherwise unavailable on the first Saturday of the month, . . ., then the visit for the de facto parents will occur on the second Saturday of the month. And both the de facto parents and the father . . . will have discretion to allow [the child] to visit with others. That will be up to [father] and to the de facto parents."
Dispositional findings and orders, agreed to by the parties as to form and language were filed, providing, in pertinent part, that Judge Feeney's decision to remove the child from father's custody was based on the following circumstance: "While in father's care, [the child] was physically abused, and father failed to protect the child." The dependency proceeding was terminated, and the following custody orders were issued: "[t]he child has been reunited with [] mother, and [] father is not in the home;" and mother has sole legal and physical custody of the child. As to visitation, the written orders provided, in pertinent part, that (1) father "shall have unsupervised visitation two days per week on his days off, from 10:00 a.m. to [6:00 p.m.]" and father may include others in his visits at his discretion; (2) the de facto parents "will have unsupervised visitation on the first Saturday of every month from [10:00 a.m.] . . . until 6:00 p.m." and "may invite other family members to visit with the child during their time" with the child; and (3) the visitation orders were final orders "that can only be modified upon a showing of change in circumstances in the family law proceeding," and "[i]f noticed proceedings are filed to modify child custody and/or visitation, the family law court should review the juvenile files."
Mother's timely appeal ensued. (See In re Javier G. (2005) 130 Cal.App.4th 1195, 1201 [dispositional order on a section 387 supplemental petition is appealable as a judgment and issues arising from the jurisdictional portion of the hearing may be challenged on appeal of the dispositional order].)
DISCUSSION
I. Modification of Sustained Section 387 Petition
Mother argues that Judge Hinrichs' modification of the sustained section 387 petition (hereinafter "modification") should be vacated as it demonstrates judicial bias and/or constitutes a prejudicial violation of the due process rights of mother and the child. We conclude mother's argument has been rendered moot by the termination of the juvenile dependency proceeding, and she has failed to demonstrate any reason for review under the exceptions to the mootness doctrine.
"As a general rule, it is a court's duty to decide ' " 'actual controversies by a judgment which can be carried into effect and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.' " ' [Citation.] An appellate court will dismiss an appeal when an event occurs that renders it impossible for the court to grant effective relief. [Citation.] Still, a court may exercise its inherent discretion to resolve an issue when there remain 'material questions for the court's determination' [citation], where a 'pending case poses an issue of broad public interest that is likely to recur' (citation), or where 'there is a likelihood of recurrence of the controversy between the same parties or others.' [Citation.] [¶] Juvenile dependency appeals raise unique mootness concerns because the parties have multiple opportunities to appeal orders even as the proceedings in the juvenile court proceed." (In re N.S. (2016) 245 Cal.App.4th 53, 58-59.)
Here, we conclude that even if there were merit to mother's argument, we cannot grant her any effective relief. She has been awarded sole legal and physical custody of the child, and consequently "the dismissal order here was favorable to [her] and does not form the basis of any adverse custody ruling" against her. (In re N.S., supra, 245 Cal.App.4th at p. 61.) Additionally, the modification, which solely concerns father's conduct, is "not the basis of any current order that is adverse to" mother. (Ibid.) Thus, "there is no relief to provide [mother] . . . in her appeal" challenging the modification. (Ibid.)
Mother's contention that we should review the modification because it formed the basis for the dispositional adjudication made by Judge Feeney misconstrues the nature of the section 387 proceeding. "A section 387 supplemental petition is used to change the placement of a dependent child from the physical custody of a parent to a more restrictive level of court-ordered care. [Citations.] In the jurisdictional phase of a section 387 proceeding, the court determines whether the factual allegations of the supplemental petition are true and whether the previous disposition has been ineffective in protecting the child. [Citations.] If the court finds the allegations are true, it conducts a dispositional hearing to determine whether removing custody is appropriate. [Citations.])" (In re T.W. (2013) 214 Cal.App.4th 1154, 1161.) While a custodial parent's "abusive behavior toward a dependent child could presumably be a basis for a change in placement" (In re Joel H. (1993) 19 Cal.App.4th 1185, 1200, fn. 13), neither physical nor emotional abuse is "the test under section 387 for modifying a previous placement." (Id. at p. 1200.) "The 'jurisdictional fact' necessary to modify a previous placement is that the previous disposition has not been effective in the rehabilitation or protection of the minor. [Citation.]" (Ibid.) Here, Judge Hinrichs sustained the section 387 petition based on a finding that father's conduct demonstrated the prior order of shared custody had not been effective in protecting the child from the risk of physical abuse. The challenged modification, even if improper, did not change the court's adjudication of the only "jurisdictional fact" necessary to support Judge Feeney's later dispositional order removing the child from father's custody; namely, that father's conduct failed to protect the child from the risk of physical abuse. More significantly, as noted, the modification was not adverse to mother. Thus, "there remains no effective relief we could give [mother] beyond that which she has already obtained" by being awarded sole legal and physical custody of the child. (In re N.S., supra, 245 Cal.App.4th at p. 62.)
We fail to see how either mother or the child was or will be prejudiced by the modification in any future juvenile or family court proceedings. At the time the modification was made, mother had custody and the modification could not and will not affect the child's custodial status with mother or affect mother's relationship or right to parent the child. (See also In re Paul W. (2007) 151 Cal.App.4th 37, 61 [appellate court dismissed mother's appeal challenging the grant of father's habeas corpus petition to set aside juvenile court orders against him, because the ruling in favor of father did not affect mother's custody of her children or otherwise affect mother's fundamental right to parent her children]; In re Carissa G. (1999) 76 Cal.App.4th 731, 733, 736 [appellate court dismissed mother's appeal challenging the dismissal of a juvenile dependency petition alleging father sexually abused minor, after a contested jurisdictional hearing, because the juvenile court's dismissal of the petition "did not alter minor's custody status" or impact mother's "fundamental right to parent minor"].)
We are not persuaded by mother's contention that a review of the modification is required because it formed the basis and "made it substantially more likely" that Judge Feeney would issue exit orders permitting father and the de facto parents to have unsupervised visits in the presence of other persons. Mother's personal interest in the custody and parenting of the child are not adversely affected by the visitation orders because, as we later discuss, those orders do not constitute an improper delegation of authority (In re Chantal S. (1996) 13 Cal.4th 196, 214) and can be changed in a family court proceeding. (See also In re Carissa G., supra, 76 Cal.App.4th at p. 736 [appellate court dismissed mother's challenge to a juvenile dependency petition alleging father sexually abused minor on the grounds that "[e]ven had the juvenile court sustained the petition, the [social services agency's] proposed case plan would have altered [the child's custody status in mother's care] only slightly by limiting father to monitored visitation," and mother was not left without a remedy as issues concerning custody and visitation could also be dealt with in a family law proceeding].)
Nor are we persuaded by mother's argument that review of the modification is required because of judicial bias and conflicts of interest likely to occur in other cases. Mother's contentions are based on the specific factual circumstances of this case and do not present issues of "broad public interest," that are " 'capable of repetition, yet evading review.' " (Thompson v. Department of Corrections (2001) 25 Cal.4th 117, 122.) Our Legislature has provided for the expedited resolution of claims of alleged judicial bias by enacting a "substantial state statutory system . . . which requires those concerned about judicial bias to file in the trial court and, if dissatisfied, to petition for writ of mandate, which is the exclusive means of review." (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 588; see Code Civ. Proc. §§ 170.1, 170.3.)
In sum, given the absence of any showing that the modification of the sustained section 387 petition has or will have an adverse effect, we decline to exercise our discretion to address mother's substantive challenges to the modification, which have been rendered moot by the termination of the juvenile dependency proceeding.
II. Grant of De Facto Parent Status to Former Foster Parents
A. Relevant Facts
As noted, in January 2016 the agency placed the child in the home of the former foster parents until the end of September 2017 when the court returned custody of the child to parents. In May 2018, eight months after the child was removed from the home of the foster parents and during the dispositional hearing on the section 387 petition, the former foster mother filed a JV-180 form Request To Change Court Order, in which she sought visitation and de facto parent status for herself and her husband. The former foster parents also filed a JV-296 De Facto Parent Statement, in which they explained their reasons for seeking de facto parent status.
On June 13, 2018, the court filed two separate orders: (1) denying the foster mother's request to change court order under section 388 because "the request does not state new evidence of a change of circumstances," and (2) denying the request for de facto parent status because "[a]n extremely lengthy disposition hearing should conclude within the next few days. Further, the Court is concerned that adding additional parties will exacerbate already existing tensions and will cause even further acrimonious litigation."
At a subsequent hearing, the court considered, over mother's objection, the former foster parents' renewed request for de facto parent status based on the parties' filed documents and counsel's oral arguments. In granting the request for de facto parent status, the court considered the relevant factors and found it would be "improper for the Court to refuse the [former foster parents'] input as to what is or is not in the best interests of this young child . . . . The [former foster parents], in my opinion, clearly meet and satisfy the definition of de facto parents." The court deferred ruling on the de facto parents' request for visitation until resolution of some of the other issues in the case.
B. Discussion
Mother argues the order granting de facto parent status must be vacated because, among other things, (1) the rights of mother and the child were "continuously violated throughout the proceedings due to [the child's] placement with" the de facto parents; (2) the court's procedure by which it adjudicated the request for de facto parent status violated mother's constitutional right to due process, and (3) substantial evidence did not support the order. However, we have no jurisdiction to consider mother's contentions because she has no standing, either on behalf herself or the child, to challenge the order.
"Generally, parents can appeal judgments or orders in juvenile dependency matters. [Citations.] However, a parent must also establish she is a 'party aggrieved' to obtain a review of a ruling on the merits. [Citation.] Therefore, a parent cannot raise issues on appeal from a dependency matter that do not affect her own rights. [Citation.]" (In re Frank L. (2000) 81 Cal.App.4th 700, 702-703; id. at p. 702 [court found mother did not have standing to contest the finding that it was in the child's best interest to be placed with aunt or to assert an ineffective assistance of counsel argument on child's behalf]; In re Nachelle S. (1996) 41 Cal.App.4th 1557, 1561 [mother has no "right to raise any issue of the minor's best interests" in a juvenile dependency proceeding].) In applying the general principal that a parent cannot raise issues on appeal from a dependency matter that do not affect her own rights, the courts have held that parents in a dependency proceeding cannot challenge a ruling on de facto parent status. (See, e.g., In re Daniel D. (1994) 24 Cal.App.4th 1823, 1835; In re Vanessa Z. (1994) 23 Cal.App.4th 258, 261.) While the cited cases concern a parent's lack of standing to challenge the denial of de facto parent status, the reasons for finding a lack of standing apply equally when the court grants de facto parent status.
We recognize that in In re Joshuia S. (1988) 205 Cal.App.3d 119, the appellate court entertained an appeal by the mother challenging the juvenile court's order granting de facto parent status to the child's foster parents. (Id. at p. 121.) However, in so doing, the appellate court did not address the question of its jurisdiction to consider mother's appeal, which was joined in by the Department of Public Services. (Id. at p. 122; see In re D.R. (2010) 185 Cal.App.4th 852, 859 [child social services agency had "legally cognizable interest that was injuriously affected" by the juvenile court's orders denying motion to terminate de facto parent status and granting application for de facto parent status and thus had standing to appeal the orders].) Hence, any sub silentio assumption of jurisdiction based on mother's standing to appeal in In re Joshuia S. does not constitute binding authority on the jurisdictional question of standing that is before us. "[C]ases are not authority for propositions not considered. [Citation.]" (McDowell & Craig v. City of Santa Fe Springs (1960) 54 Cal.2d 33, 38; see Santisas v. Goodin (1998) 17 Cal.4th 599, 620 [an appellate decision is only authority " 'for the points actually involved and actually decided' "].)
The de facto parent doctrine is a " 'judicially created and maintained concept' [citation] which is not incorporated into the statutory dependency scheme but is recognized in court rules (Cal. Rules of Court, rules 5.502(10) (defining de facto parent), 5.530(a) (right to be present at court proceedings), 5.534 (e) (standing to participate and procedural rights)." (In re A.F. (2014) 227 Cal.App.4th 692, 699.) " 'De facto parent' means a person who has been found by the court to have assumed, on a day-to-day basis, the role of parent, fulfilling both the child's physical and psychological needs for care and affection, and who has assumed that role for a substantial period." (Cal. Rules of Court, rule 5.502(10).) "[T]here is no requirement of contemporaneity in the determination of de facto parent status. . . . A person need not be a child's current or immediately succeeding custodian to be regarded as a de facto parent. [Citation.]" (In re Rachael C. (1991) 235 Cal.App.3d 1445, 1453, disapproved on another ground in In re Kieshia E. (1993) 6 Cal.4th 68, 80.)
Applying the above principles to this situation, one in which mother had already regained custody of the child at the time the de facto parent ruling was made and was able to present evidence regarding the impact of visitation, we conclude mother does not have standing to challenge the grant of de facto parent status. "De facto parents are not part of any adversarial aspect of a dependency case." (In re B.F. (2010) 190 Cal.App.4th 811, 817.) The de facto parents "nexus with the proceeding" is a "separate interest and relationship with the child," separate from that of the parent. (In re Vanessa Z., supra, 23 Cal.App.4th at p. 261.) Additionally, in ruling on a request for a de facto parent status the juvenile "court does not consider whether the order would be detrimental" to the child or in the child's "best interests," but only "considers the applicant's adherence to the role of parent and whether the applicant has information that is in the child's best interests for the court to receive." (In re Leticia S. (2001) 92 Cal.App.4th 378, 383, fn. 5.)
Because mother lacks standing, we have no jurisdiction to address her substantive challenges. (In re Frank L., supra, 81 Cal.App.4th at p. 703 [standing is jurisdictional].) Further, in light of our determination, we need not separately address the issue of mootness.
III. Visitation Orders for Father and De Facto Parents
Mother challenges the juvenile court's exit orders to the extent they grant father and the de facto parents unsupervised visits with the child in the presence of other persons. We conclude the exit orders were proper and if mother is dissatisfied, her remedy is to seek relief in a family court proceeding.
It is not disputed that, upon the termination of the dependency, Judge Feeney had the discretionary authority to issue a custody order in favor of mother and visitation orders in favor of father and the de facto parents. (See § 362.4 ["[i]f the juvenile court terminates its jurisdiction over a minor who has been adjudged a dependent child of the juvenile court prior to the minor's attainment of the age of 18 years . . ., the juvenile court on its own motion, may issue . . . an order determining the custody of, or visitation with, the child"]; In re Hirenia C. (1993) 18 Cal.App.4th 504, 520 ["it would likely be reversible error for the juvenile court to refuse to hear evidence which is relevant to the formulation of an appropriate 'exit' order regarding visitation" of de facto parent]; In re Robin N. (1992) 7 Cal.App.4th 1140, 1141, 1143 [court of appeal affirmed order granting continuing visitation rights to de facto parent after dismissing dependency proceeding].)
Additionally, whether father and the de facto parents should have unsupervised visits with the child in the presence of other persons was an issue for the juvenile court, which resolved the matter after considering evidence of mother's concerns and reasons for seeking to limit the child's visits with father, father's friends, and, certain paternal and maternal relatives. We are not persuaded by mother's summary of the evidence submitted at the dispositional hearing and pointing "out its strengths and weaknesses." (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 398 (Hasson).) That type of "showing is largely irrelevant" as to whether the evidence in the respondents' favor provides a sufficient basis for the juvenile court's findings. (Ibid.; see Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 67-68 ["trier of fact may accept part of the testimony of a witness and reject another part even though the latter contradicts the part accepted;" the trier of fact " 'properly may reject part of the testimony of a witness, though not directly contradicted, and combine the accepted portions with bits of testimony or inferences from the testimony of other witnesses thus weaving a cloth of truth out of selected available material' "]. ) By her arguments, mother is merely attempting "to reargue on appeal those factual issues decided adversely to [her] [in the juvenile court], contrary to established precepts of appellate review. As such, it is doomed to fail." (Hasson, supra, at pp. 398-399.)
In seeking to overturn the visitation exit orders, which are "in the nature of the pendente lite orders in family law" (In re John W. (1996) 41 Cal.App.4th 961, 973), mother contends the court improperly delegated to father and the de facto parents the right to determine who should visit the child. However, the exit orders merely "contemplate[] that all persons subject thereto would remain under the control of the family court and that any party who wished to contest . . . the continued propriety of the order[s] based on changed circumstances . . . would be able to raise that issue in the family court." (In re Chantal S., supra, 13 Cal.4th at p. 214 [exit orders concerning father's visitation, which left open issues that remained within the purview of the family court, did not constitute an unlawful delegation of court authority].) We see no merit to mother's argument that leaving the visitation directives in the exit orders in place will impose an undue burden on her to secure a modification or will limit the authority of the family court to grant a modification. As is standard when seeking a visitation modification, mother will be required to show (1) a substantial change of circumstances since the exit orders were made, and (2) that the proposed modification would be in the best interest of the child; her ability to do so and the family court's ability to modify visitation are not adversely impacted by the exit orders. (§ 302, subd. (d).)
In light of our determination, we do not need to separately address the agency's contention that the exit order concerning father's visits is moot due to later proceedings in the family court. Therefore, we deny the agency's request for judicial notice of mother's April 18, 2019 application to change visitation, filed in the family court, on the ground that consideration of the application is not necessary for our resolution of this appeal. --------
Lastly, mother requests we order that any further proceedings in the family court shall not be heard by any of the judges involved in the juvenile dependency proceedings, citing to Guardianship of Vaughan (2012) 207 Cal.App.4th 1055, 1074. However, we see nothing in the cited case that supports mother's request and it is denied without prejudice to mother filing an appropriate request to disqualify any judge in any further court proceedings. (Code of Civ. Proc., §§ 170.1, 170.3).
DISPOSITION
The June 28, 2018 dispositional findings and orders on the Welfare and Institutions Code section 387 supplemental petition are affirmed.
/s/_________
Petrou, J. WE CONCUR: /s/_________
Fujisaki, Acting P.J. /s/_________
Jackson, J.