Opinion
E075295
07-16-2021
In re R.S., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. K.S., Respondent J.O. et al., Defendants and Appellants.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendants and Appellants. No appearance for Respondent, K.S. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and Prabhath D. Shettigar, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. INJ1900258 Susanne S. Cho, Judge. Affirmed in part; reversed in part and remanded with directions.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendants and Appellants.
No appearance for Respondent, K.S.
Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and Prabhath D. Shettigar, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
This is an appeal by foster parents J.O. and I.O. from juvenile court orders made in dependency proceedings denying both their motion for an order continuing a foster child in their care and their request for de facto parent status. We will find the foster parents lack standing to challenge the decision to remove the child from their home and the juvenile court abused its discretion when it denied their de facto parent request.
BACKGROUND
The subject of the dependency proceedings is R.S., who was born in August 2018 in Missouri to a mother who suffers from mental health issues. R.S.'s alleged father was never located. After R.S. was born, mother took her to Arizona, then to Cathedral City, and eventually, the family ended up in a woman's shelter in Indio early in 2019. While in the shelter, respondent Riverside County's Department of Public Social Services (the Department) received a referral stating mother was not taking adequate care of R.S.
The Department's investigation revealed mother was exhibiting paranoia, delusional behavior, and having “difficulty working through what is reality and what is real and practical.” She refused to allow 10-month-old R.S. to consume anything other than breast milk and would not permit her to engage in age-appropriate behaviors, such as crawling, exploring, and engaging with others in the room.
The Department also discovered mother had another daughter, who was born in Nebraska in 2011, shortly after mother's 16th birthday. When that child was three years old, she was removed from mother by the child services agency in Nebraska. When reunification efforts failed, she was adopted by her maternal great-grandmother, Karen L.
Karen L. and other maternal family members were willing to assist mother and R.S., but mother wanted to stay in the rescue mission where she had been taken in after being transitioned out of the women's shelter.
The Department found mother's unmanaged mental health difficulties were preventing her from providing R.S. with adequate care. In July 2019, it took the child into protective custody and placed her in the foster care home of appellants, Mr. and Mrs. O (the foster parents). The Department filed a juvenile dependency petition alleging R.S. came within subdivision (b)(1) of the Welfare and Institutions Code section 300.
All statutory references herein are to the Welfare and Institutions Code and references to rules are to the California Rules of Court.
Mother was not present at the July 22, 2019 detention hearing. The juvenile court ordered R.S. detained and instructed mother to disclose information about the child's maternal and paternal relatives.
The hearings on jurisdiction and disposition were continued several times for a variety of reasons, including the need to locate mother, obtain information from Nebraska concerning the dependency proceedings involving R.S.'s older half-sister, and enlist mother's cooperation in undergoing a psychological evaluation. By the time the contested hearings took place in January 2020, Karen L., who expressed reservations about caring for R.S. when the child was taken into protective custody, had requested placement of the child and agreed to an ICPC (Interstate Compact for the Placement of Children) assessment.
At the combined hearings on jurisdiction and disposition, the court sustained the dependency petition, adjudged R.S. a dependent, and removed her from mother. It denied family reunification services and set the matter for a permanent plan selection hearing pursuant to section 366.26 on May 18, 2020, and a postpermanency hearing on July 17. It ordered an expedited ICPC with the state of Nebraska to assess Karen L.'s home.
In late April 2020, the Nebraska ICPC unit notified the Department it had completed Karen L.'s home study but for live scanning, a task complicated by the COVID-19 pandemic. At the May 18, 2020 section 366.26 hearing, the court granted a continuance to allow time for the ICPC to be finalized.
On June 1, 2020, the foster parents filed a request for de facto parent status. Eight days later, they filed a motion pursuant to section 388 asking the court to “either designate the child's placement as a direct placement or order the child not be moved until there is a full hearing on the matter.” The Department submitted an opposition to the 388 petition and reported Karen L.'s home had been approved for placement. It acknowledged R.S. would need to go through a period of adjustment when moved out of the foster home but opined the child's interests would be best served if she were raised by relatives and could grow up with her sibling.
The court granted the petition's request that no placement change or move of R.S. be made without a hearing and set the petition and the de facto parent request for hearing.
At the hearing, counsel for R.S. and mother's counsel joined in the Department's recommendation to place the child with Karen L. The court found the relative placement preference applied and denied the foster parents' section 388 petition. It also denied their request for de facto parent status. The foster parents appealed.
DISCUSSION
On appeal, the foster parents argue the juvenile court abused its discretion when it denied their section 388 petition and request for de facto parent status.
1. The denial of the section 388 petition
At the January 2020 disposition hearing, the juvenile court exercised its supervisory powers based on the best interests of R.S. and placed her in the care, custody, and control of the Department with authority to place her in the O family foster home where she had been living since being taken into protective custody in July 2019. (§ 361.2, subd. (e); In re Robert A. (1992) 4 Cal.App.4th 174, 189-190.) In June 2020, the foster parents petitioned the juvenile court pursuant to section 388 for an order preventing R.S.'s removal from their care. They appeal the denial of that petition.
In order to have standing to appeal, appellants must be aggrieved; that is, they must have rights or interests that have been injuriously affected by the lower court's decision in an immediate and substantial way. (In re K.C. (2011) 52 Cal.4th 231, 235-236; In re P.L. (2005) 134 Cal.App.4th 1357, 1361 (P.L.).) As we explain, the foster parents have no standing on appeal to complain about the juvenile court's decision to deny the section 388 petition because the subject of the petition was R.S.'s placement.
In P.L., a de facto parent appealed from a juvenile court order removing her 18-month-old foster child who had been in her home since shortly after birth and placing the child in a prospective adoptive home. (P.L., supra, 134 Cal.App.4th at pp. 1360-1361.) This court held the foster mother's de facto parent status did not confer the rights to custody or continued placement afforded parents and legal guardians. (Id. at p. 1361.) Because the de facto parent had no legal right to custody, she was not aggrieved by the juvenile court's decision and, consequently, had no standing to challenge it on appeal. (Id. at pp. 1361-1362.)
It stands to reason that if the de facto parent in P.L. did not have a right to custody, a foster parent does not have that right either. Accordingly, we extend the holding in P.L. to custody issues raised on appeal by foster parents and find the foster parents here lack standing to challenge the removal of R.S. from their home for placement with Karen L. because their status as foster parents did not confer the right to custody or continued placement. Because they had no right to custody or continued placement, they were not legally aggrieved by the juvenile court's denial of their petition requesting an order for continuation of R.S. in their home. (P.L., supra, 134 Cal.App.4th at pp. 1361-1362.)
Even if we were to consider the merits of the foster parents' arguments, we would find the juvenile court did not abuse its discretion in denying their section 388 petition.
When a child is removed from the physical custody of the parent pursuant to section 361, section 361.3 requires the juvenile court to give preferential consideration to a request by the child's relative for placement. By enacting that provision, the Legislature intended relatives to be assessed and considered favorably, subject to the juvenile court's consideration of the of the suitability of the relatives' home and the best interests of the child. (§ 361.3, subd. (a); In re Stephanie M. (1994) 7 Cal.4th 295, 320.) A court has broad discretion when making placement decisions pursuant to section 361.3. (Stephanie M., at p. 318.)
Here, Karen L. requested placement of R.S. in December 2019 and the court ordered assessment of her home when it took jurisdiction and removed R.S. from her mother in January 2020. When the study of Karen L.'s home was approved, the juvenile court found R.S.'s interests would be best served by placing her there.
The foster parents claim the court misunderstood the relative placement preference statute, that it “felt compelled” to place R.S. with her great-grandparent. They argue the court's purported misapprehension of the statute caused it to ignore the evidence of their secure and loving home and instead order R.S. to be moved to a placement that could not be nearly as satisfactory in view of such issues as Karen L.'s age and R.S.'s lack of a bonded relationship with her half-sibling or Karen L. We do not agree. The court did not automatically place the child with Karen L. but instead properly applied the relative placement preference. The foster parents' argument that the court necessarily erred because their placement was the better option is essentially a request for this court to reweigh the evidence, which is beyond our authority. (In re G.L. (2014) 222 Cal.App.4th 1153, 1166.)
2. The foster parents' request for de facto parent status
The foster parents also argue the juvenile court abused its discretion when it denied their request for de facto parent status. We agree.
Rule 5.534(a) authorizes the present or previous custodian of a child who is a dependent of the juvenile court to be designated as a de facto parent. The designation may be made at the hearing on disposition or at any hearing thereafter at which the status of the dependent child is in issue. (Rule 5.534(a).) De facto parent status affords the custodian the right to be present at the hearing, to be represented by retained counsel (or, at the discretion of the court, appointed counsel), and to present evidence. (Ibid.)
Whether the custodian qualifies as a de facto parent depends greatly on the particular individual seeking that status and the unique circumstances of the case. (In re Patricia L. (1992) 9 Cal.App.4th 61, 66-67 (Patricia L.).) Courts have identified several factors deemed relevant to the determination, including whether: (i) the child is psychologically bonded to the custodian; (ii) the person assumed the role of a parent on a day-to-day basis for a substantial period of time; (iii) the person possesses information about the child unique from other participants in the process; (iv) the person regularly attended juvenile court hearings; and, (v) it is possible a future proceeding may result in an order permanently foreclosing any future contact with the custodian. (Ibid.; In re Justin O. (2020) 45 Cal.App.5th 1006, 1015 (Justin O.).)
The parental role and the child's attachment may be deserving of greater weight than the other factors when deciding if the adult should be granted de facto parent status. Rule 5.502(10) defines a de facto parent as a person found by the court to have assumed the role of a parent on a day-to-day basis over a substantial period of time, fulfilling both the child's physical and psychological needs for care and affection. That definition is in accord with the language in the Supreme Court opinion giving rise to the de facto parent status doctrine in dependency proceedings. (In re B.G. (1974) 11 Cal.3d 679, 692, fn. 18 (B.G.) [“We use the term ‘de facto parent' to refer to that person who, on a day-to-day basis, assumes the role of parent, seeking to fulfill both the child's physical needs and his psychological need for affection and care.”].)
The burden is on the person seeking de facto parent status to establish qualifying criteria by preponderance of evidence. (Patricia L., supra, 9 Cal.App.4th at p. 67.) An applicant seeking that status has standing to appeal the denial of the application. (In re Rachael C. (1991) 235 Cal.App.3d 1445, 1453 (Rachael C.), disapproved on other grounds in In re Kieshia E. (1993) 6 Cal.4th 68, 80.) Denial of an application is reviewed for an abuse of discretion. (In re Michael R. (1998) 67 Cal.App.4th 150, 156.)
Here, the foster parents' request for de facto parent status was heard on the same day as their section 388 petition, which was aimed at preventing removal of R.S. from the foster home. The petition was dealt with first and, after the court made clear it was going to remove R.S. from the foster home and place her with relatives, it denied the de facto parent request. The court explained it found the foster parents legally qualified for de facto parent status but did not automatically grant their request when it was submitted prior to the hearing because it knew there would be “competing issues” discussed in court (apparently referring to the section 388 petition) and “did not want to turn this case into an adversarial hearing.” It also remarked, “although [the request is] technically compliant, I don't find it to be helpful in this case, in fact, it turns the hearing into more adversarial.” The court, aware of R.S.'s bond with the foster parents and concerned the move to the relative's home was not going to be easy for her, then requested the foster parents to assist in the transition. It also ordered the Department to contact the foster parents if placement with the maternal relatives failed, emphasizing the Department was to give the foster parents the opportunity to have R.S. returned to their care “first, foremost.” (RT 46.}
The court's denial of the foster parents' de facto parent request upon a finding they qualified for that status was an abuse of discretion. Where, as here, a couple have parented a young child on a daily basis for a substantial period of time, fulfilling her psychological and physical needs for care and affection, and there is no evidence that they had ever betrayed or abandoned that parental role, it is an abuse of discretion to deny their request for de facto parent status. (In re Bryan D. (2011) 199 Cal.App.4th 127, 147.)
We acknowledge the juvenile court's concern that permitting the foster parents to participate in the hearing as de facto parents might raise the tensions between the participants, making the hearing more adversarial. We do not agree, however, that concerns for the climate of a hearing is a proper consideration in deciding whether to grant a request for de facto parent status. It is clear our Supreme Court intended for those who come within the description of a de facto parent to participate in the proceedings-and it did so not in spite of the fact their interests may differ from those of the other participants in the case, but precisely because the de facto parent has interests independent of the others. (B.G., supra, 11 Cal.3d at p. 693.)
We also note that at the end of the hearing, when the court denied the foster parents' request on the grounds that granting it would make the hearing more adversarial, it had already permitted them to exercise the only rights afforded by having de facto parent status: they were present at the hearing, represented by counsel, and presented evidence in the form of a declaration attached to their request. Those facts, however, do not make the denial harmless. Had the court granted de facto parent status to the foster parents as it should have done in the circumstances before it, they would have the right to participate in all further hearings affecting R.S.'s status and could continue in that role even when R.S. is removed from their care. (Rule 5.534(a); Rachael C., supra, 235 Cal.App.3d at p. 1453.)
The right to future participation is of particular importance in this case because the juvenile court not only requested the foster parents' assistance in transitioning R.S. to the home of her great-grandmother but also instructed the Department to place the child back with the foster family if the placement does not work out. Noteworthy in that connection is de facto parent status may not be terminated at will by the court; it remains in place until either the dependency ends or a circumstances change in a manner such that the status is no longer supported (e.g., if the psychological bond between the child and adult ceases to exist). (In re Leticia S. (2001) 92 Cal.App.4th 378, 383, fn. 5; Patricia L., supra, 9 Cal.App.4th at p. 67.)
In its brief in support of the denial of de facto parent status, the Department argues the decision was correct because the foster parents do not have unique information about R.S. and they did not attend all of the hearings. While it is true those are factors to be considered by the court when deciding if a request should be granted, their presence or absence is not dispositive. As noted ante, the most important considerations giving rise to de facto parent status are the daily fulfillment by the custodial (or recently custodial) adult of the child's physical and psychological needs and the development over time of a child's bond with that adult. (Rule 5.502(10); B.G., supra, 11 Cal.3d at p. 692, fn. 18; see Patricia L., supra, 9 Cal.App.4th at pp. 66-67 [if information provided by de facto parent is not useful, the juvenile court need not give it great weight in the decision-making process].)
DISPOSITION
The order denying de facto parent status is reversed with instructions to enter a new order granting de facto parent status to the appellants. In all other respects, the judgment is affirmed.
I concur: McKINSTER J.
RAPHAEL, J., Concurring.
We correctly hold that the foster parents should have been deemed de facto parents, and I also agree that there was no abuse of discretion in the trial court's decision to deny the de facto parents' request for custody. Without a party raising the issue, however, the majority opinion also holds that the foster parents lack standing to appeal the trial court's denial of their Welfare & Institutions Code section 388 (section 388) petition. The foster parents argue that the court applied an improper standard in favoring relatives over them in removing the child from their home and placing her with a relative. (Maj. opn., ante, at pp. 5-6.) The majority opinion's standing holding is that the foster parents are not “aggrieved” for standing purposes by a trial court decision like this one. (Ibid.)
The dependency standing doctrine is not so clear. Our division has allowed de facto parents to appeal-and succeed in reversing-the denial of a section 388 petition on an argument that the trial court applied the incorrect standard in removing a child. (In re A.F. (2014) 227 Cal.App.4th 692, 695.) That opinion was wrongly decided if the de facto parents had no standing. Other opinions likewise have entertained section 388 appeals by de facto parents. (In re Joshua B. (1996) 48 Cal.App.4th 1676, 1678; In re Vanessa P. (1995) 38 Cal.App.4th 1763, 1768, 1770.)
We also have recently issued an opinion that appears to conflict in principle with this one, in holding that distant relatives who did not seek de facto parent status had standing to appeal the denial of their section 388 petition asking for the return of a child. (In re K.T. (2019) 42 Cal.App.5th 15, 20 [“When their petition was denied, the [parents] were aggrieved.”]) At least two cases have expressly found standing for de facto parents to raise similar claims. (In re Vincent M. (2008) 161 Cal.App.4th 943, 953; In re Joel H. (1993) 19 Cal.App.4th 1185, 1193-1195.)
I would not decide the standing issue without briefing. (In re Celine R. (2003) 31 Cal.4th 45, 52, fn. 2.) I respectfully concur in the rest of the opinion, including its conclusion that the trial court did not abuse its discretion in ruling on the merits of the section 388 petition.