Opinion
E032204.
11-17-2003
In re ALEXANDRIA M., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY DEPARTMENT OF CHILDRENS SERVICES, Plaintiff and Respondent, v. ROBERT M. et al., Defendants and Appellants.
Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant Robert M. (grandfather). Kathleen Murphy Mallinger, under appointment by the Court of Appeal, for Defendant and Appellant Dena M. Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant Robert M., Jr. (father). Alan K. Marks, County Counsel, and Jacqueline Carey-Wilson, Deputy County Counsel, for Plaintiff and Respondent.
Harry Zimmerman, under appointment by the Court of Appeal, for Minor.
Robert M., III (father), Robert M., Jr., (grandfather), and Dena M. (paternal stepgrandmother) appeal a dispositional order removing Alexandria, a minor, from her paternal grandparents (grandparents) physical custody. Appellants join in each others contentions raised on appeal.
Grandfather contends the juvenile court violated his due process rights and exceeded the courts jurisdiction by removing Alexandria from his custody without permitting him to be heard and participate in the dependency proceedings. He claims the juvenile court deprived him of his right, as Alexandrias grandfather, to refute the presumption of risk under Welfare and Institutions Code section 355.1 arising from grandfather being a registered sex offender. Grandfather also argues his substantive due process rights were violated by depriving him of his fundamental liberty interests in preservation of his family relationships. Grandfather further argues the juvenile court erred in not placing Alexandria with grandparents under section 361.3, which gives preferential consideration to a relatives request for placement.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
In addition, grandparents argue the trial court abused its discretion in denying their petitions for de facto parent status and in making a no contact order.
Grandmother argues the trial court erred in excluding her from the jurisdictional proceedings based on lack of standing. Grandmother claims that as Alexandrias guardian, grandmother had a due process right to appear and participate in the dependency proceedings. Grandmother further asserts the petition allegations were insufficient and Alexandrias detention was an abuse of discretion because reasonable efforts would have prevented her detention.
We conclude grandmother had standing to participate in the entire juvenile dependency proceeding as legal guardian of Alexandria at the time of the filing of the dependency petition and removal of Alexandria from her home. We further conclude the trial court erred in excluding grandmother from attending the jurisdictional hearing. Grandmother was entitled to appear and participate in all of the proceedings. The court also had discretion to allow grandfather to attend the jurisdictional hearing as an interested person under California Rules of Court, rule 1410(e).
More importantly, we reverse the dispositional order on the ground the trial court committed prejudicial error in denying grandparents petitions for de facto parent status. Grandparents were entitled to de facto parent status as Alexandrias physical custodians for over six months. In addition, at the time of Alexandrias removal from their home, grandmother was Alexandrias legal guardian and had bonded with Alexandria. There is also substantial evidence in the record that, although grandfather was a registered sex offender, the offense did not involve a minor, it occurred 17 years before, and there was no evidence that Alexandria was at risk living with him and grandmother. The evidence indicates that at the time of Alexandrias removal from grandparents, grandparents were providing Alexandria with a stable, loving home. Nevertheless, grandparents were precluded from appearing in the dependency proceedings and establishing that Alexandria was not at risk of harm living with them. Accordingly, we reverse the order denying grandparents de facto parent status and the dispositional order.
1. Facts and Procedural Background
After their home burned down, mother, father, Alexandria (born in March 1999), and her three half-siblings moved in with Alexandrias paternal grandfather and stepgrandmother in October 2001. Early in November 2001, father was incarcerated for a drug-related conviction. Mid-November, mother abandoned her four children with grandparents. Both parents had a history of drug abuse and convictions for drug-related offenses. Grandmother took Alexandrias three half-siblings to live with their maternal grandmother and Alexandria remained with grandparents.
During a physical examination of Alexandria, it was discovered she had a heart disease. On March 13, 2002, grandmother filed a petition to be appointed as Alexandrias legal guardian so grandmother could obtain medical care for her. On March 15, 2002, the probate court granted grandmother temporary legal guardianship of Alexandria during grandmothers pending petition for permanent guardianship. The probate court order stated the letters of guardianship expired on May 15, 2002. The court continued the hearing on the petition for permanent guardianship to enable the probate court investigator to conduct an investigation of grandparents and submit a report on the guardianship request.
On March 18, 2002, Deputy Drury of the San Bernardino Sheriffs Department went to grandparents home inquiring regarding grandfathers alleged status as a registered child offender. Court records indicated grandfather had been convicted of oral copulation with force 17 years ago and grandfather had a parole condition that barred him from contact with children.
Penal Code section 288a, subdivision (c).
Upon Drurys arrival at grandparents home, Gayle Jalbert, who was watching Alexandria and grandmothers daughter, Amy R., told Drury grandparents were not home. Drury asked if Jalbert was aware grandfather was a registered child offender. Jalbert responded she was not aware of it and said it did not sound like grandfather. Amy then asked why she had been permitted to live with grandfather for the past three years if he was a child offender, and added that he had never made any sexual advances toward her. Drury commented that Alexandria appeared happy and healthy, and left.
On or about April 8, 2002, Drury returned to grandparents home to investigate the matter further. Grandfather provided Drury with documentation establishing that the parole condition prohibiting him from contact with children was erroneous and grandfather was not barred from contacting children since his offense did not involve a child. Court documents reflected that, on appeal, the parole condition had been reversed and he was thus permitted contact with children.
On April 8, 2002, Drury submitted a report, which was forwarded to the San Bernardino County Department of Childrens Services (DCS), confirming that grandfather was permitted to be around children, including Alexandria who was living with him. Finding no urgent need to remove Alexandria from grandparents, the sheriffs department did nothing further in the matter other than forwarding Drurys report to the DCS.
The DCS assigned social worker Mary Bennett to investigate the matter in connection with the probate petition for guardianship. On April 18, 2002, Bennett went to grandparents home to interview Alexandria. At the time, father was in prison and mother could not be located. Alexandria had been living with grandparents since October 2001. When Bennett requested to interview Alexandria privately, grandfather objected to being excluded from the interview. Bennett explained why she was there and mentioned that grandfather was a registered sex offender. Grandfather became irate and told Bennett to leave. According to grandparents, as Bennett was walking to her car, grandmother told her, "Pretend you did not hear that; its okay for you to stay," and grandfather apologized. Bennett responded, "That just cost you your grandchild," and left. Bennett claims grandfather never apologized.
On April 22, 2002, mother consented to grandmother being appointed Alexandrias guardian.
During the initial hearing on grandmothers guardianship petition on April 29, 2002, grandmother explained to the probate court that, although grandfather was a registered sex offender, the offense involved an adult and there was evidence he did not commit the offense. The probate court ordered a background check be completed before granting permanent guardianship, continued the hearing on the petition for permanent guardianship, and ordered "All existing temporary orders shall remain in full force and effect until FURTHER ORDER OF THE COURT."
On May 30, 2002, the DCS filed a dependency petition under section 300, subdivision (b). The petition alleged mother and father had substance abuse problems rendering them unable to parent Alexandria adequately and had left Alexandria with a registered sex offender. The petition further alleged Alexandrias legal guardian, grandmother, was married to a registered sex offender and the DCS was unable to determine the ability of grandmother to supervise and parent Alexandria because the DCS had not been able to complete an interview. The DCS recommended leaving Alexandria in grandparents custody.
Before the detention hearing on May 31, 2002, grandmother agreed grandfather would move out during the pending DCSs investigation so Alexandria could remain in grandmothers custody. But during the hearing, grandmother informed the court she would not agree to this because grandfather was not in agreement. The trial court continued the matter to June 3, 2002, for a contested detention hearing and appointed counsel for grandmother.
On June 3, 2002, the DCS filed an amended petition recommending Alexandria be removed from grandmothers custody. Following testimony by Bennett and grandmother at the contested detention hearing, the trial court found that under section 355.1, there was prima facie evidence Alexandria was at risk residing with grandfather because he was a registered sex offender. In addition, it appeared grandmother was dominated by grandfather and therefore it was questionable whether she could protect Alexandria from grandfather. The court ordered Alexandria detained out of the home of grandparents.
On June 22, 2002, the DCS filed a jurisdictional report recommending grandmothers temporary guardianship be overturned and Alexandria remain a dependent of the court.
On June 24, 2002, grandparents filed petitions for de facto parent status.
Due to the pending juvenile dependency proceedings, on July 8, 2002, the probate court vacated grandmothers temporary guardianship and took off calendar her petition for permanent guardianship.
At the jurisdictional hearing on July 15, 2002, the court concluded grandmother had no standing in the dependency proceedings because her letters of temporary guardianship had expired in May 2002. The court continued the matter to August 14, 2002, for a contested jurisdictional hearing.
On August 12, 2002, grandmother filed a supplemental declaration in support of her petition for de facto parent status. Grandmothers declaration explained that grandfathers sex crime was against an adult, not a child and therefore he was not prohibited from contact with children. Also attached to grandmothers declaration were declarations by grandfather, a neighbor, and several close friends affirming that grandparents had a close, loving relationship with Alexandria and grandfather did not pose a risk to Alexandria.
On August 13, 2002, the DCS filed an addendum jurisdictional/dispositional report stating the DCS recommended the court deny grandparents petitions for de facto parental status because grandfather, as a registered sex offender, put Alexandria at substantial risk of sexual abuse, grandmothers involvement with Alexandria was detrimental to Alexandrias emotional well-being and would interfere with reunification with her parents, grandmother was married to a sex offender, and grandmother was unable to protect Alexandria because grandmother was dominated by grandfather. Alexandria was currently in a foster home and mother and grandmother were regularly visiting Alexandria. The report further stated Alexandria viewed grandfather as mean and grumpy.
On August 14, 2002, the court conducted a contested jurisdictional hearing. Before doing so, the court found grandparents did not have standing, relieved grandmothers attorney of representing grandmother, and prohibited grandparents from attending the hearing. The court struck the petition allegations relating to grandparents because grandmother was no longer Alexandrias guardian. The court also declared Alexandria a dependent of the court, ordered Alexandria removed from her parents custody, and placed her in the custody of the DCS.
The court then heard grandparents petitions for de facto parent status and denied the petitions. The court next conducted the contested dispositional hearing and found it was not in Alexandrias best interest to be placed with grandmother or her parents. The court authorized Alexandrias parents and grandmother to visit Alexandria but denied grandfather visitation.
2. Grandmothers Standing
The DCS argues that grandmother has no standing to challenge the trial courts rulings in this case because her guardianship over Alexandria expired on May 15, 2002, prior to the detention hearing on May 31, 2002, and jurisdictional and dispositional hearings on August 14, 2002. According to letters of temporary guardianship issued by the probate court on March 15, 2002, temporary guardianship expired on May 15, 2002.
The probate court, however, extended grandmothers guardianship until July 8, 2002. At a probate court hearing in April on grandmothers petition for permanent guardianship, the court concluded a further background check was required. The court continued the petition hearing and ordered that "[a]ll existing temporary orders shall remain in full force and effect until FURTHER ORDER OF THE COURT," thus extending temporary guardianship until the petition for permanent guardianship was heard.
On July 8, 2002, however, the probate court took off calendar the hearing on grandmothers petition for permanent guardianship at grandmothers request and vacated the order of temporary guardianship due to the pending dependency proceedings.
There appears to be little, if any, direct authority on whether a primary caretaker of a child, who at the time of initiation of juvenile dependency proceedings has legal custody of the child and has been granted temporary guardianship by the Probate court, has standing in the juvenile dependency proceedings. We recognize the courts have differentiated between guardianships created in probate and dependency proceedings. We also recognize that in the instant case the probate court granted grandmother temporary as opposed to permanent guardianship over Alexandria. Nevertheless, as Alexandrias primary custodian, caretaker, and legal guardian at the time of initiation of the dependency proceedings, we conclude grandmother had a right to participate in Alexandrias juvenile dependency proceedings. Under Probate Code section 2252, grandmothers powers and authority as Alexandrias guardian included those "powers and duties of a guardian . . . that are necessary to provide for the temporary care, maintenance, and support of the ward . . . ."
The term "guardian," as used in the juvenile dependency statutory scheme, is defined in California Rules of Court, rule 1401(a)(12) as "legal guardian of the child." In construing the term "guardian" regarding a juvenile dependency issue unrelated to the standing issue raised here, the court in In re Carrie W. noted that "Throughout the Welfare and Institutions Code, reference is made to `parents or legal guardians. Although we have not found any specific section determining the significance of this particular phrasing, the `guardians portion of `parents or guardians appears to refer to situations where a child enters the jurisdiction of the dependency court with a guardianship previously established in probate court. This phrasing is meant to include the appropriate legal caretaker of a child within the code sections at the time dependency proceedings are initiated."
In re Carrie W. (2003) 110 Cal.App.4th 746.
In re Carrie W., supra, 110 Cal.App.4th 746, 758, italics added.
As temporary guardian of Alexandria, grandmother was the legal guardian, caretaker and custodian of Alexandria at the inception of the dependency proceedings and thus had standing during the detention, jurisdiction, and disposition proceedings.
3. Detention
Grandmother contends there was no reasonable basis to detain Alexandria. She claims the detention was retaliatory; it was provoked solely by grandfathers initial irate response to the social workers comment that he was a registered sex offender.
Under section 361, subdivision (c), "A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated unless the juvenile court finds clear and convincing evidence [that] . . . . [¶] There is a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor or would be if the minor were returned home, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents or guardians physical custody. . . . The court shall consider, as a reasonable means to protect the minor, the option of removing an offending parent or guardian from the home. The court shall also consider, as a reasonable means to protect the minor, allowing a nonoffending parent or guardian to retain custody as long as that parent or guardian presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm."
Section 361, subdivision (c), italics added.
During the contested detention hearing, Bennett testified she went to grandparents home on April 11, 2002. DCS had received a referral from law enforcement on April 2, 2002, as well as a referral from the probate court requesting further assessment in connection with grandmothers guardianship petition. Grandparents invited Bennett into their home. She explained why she was there and requested to interview Alexandria privately. Grandfather became suspicious and asked why. When Bennett mentioned grandfather was a registered sex offender, he asked Bennett to leave. Grandmother asked her not to leave and said it was okay for Bennett to stay. Grandmother told grandfather the DCS would take Alexandria away from them.
Bennett testified she immediately walked out the door. Grandfather yelled obscenities at her and told her not to come back unless she had evidence because the accusation was untrue. County counsel suggested she obtain a search warrant for purposes of completing the interview. Bennett filed the dependency petition because she was unable to complete her investigation that day. According to Bennett, neither grandfather nor grandmother asked her to return to the house although grandmother said she was willing to bring Alexandria into the office for an interview. Grandfather never apologized for his conduct.
Bennett originally recommended in the petition that grandparents retain custody of Alexandria pending the investigation. Grandmother had agreed that grandfather would move out during the investigation but on the day of the detention hearing on May 31, 2002, grandmother informed the court that grandfather did not want to move out and therefore grandmother was unwilling to agree to such condition. As a consequence, Bennett recommended that Alexandria be removed from grandparents custody. She was concerned grandmother was controlled by grandfather and would not adequately protect Alexandria.
While at court on May 31, 2002, she interviewed Alexandria. Alexandria was not very articulate and therefore was unable to provide a meaningful interview. She appeared healthy and well groomed. Bennett said that, since Bennett was unable to complete the investigation, she was unable to say whether, but for the fact grandfather was a registered sex offender, she would have removed the child. Bennett was concerned there was a flight risk. Someone told her there had been threats made that grandparents would abscond with Alexandria. This was one of the reasons Bennett recommended removing Alexandria from grandparents custody.
Mother testified that grandfather had never touched Alexandria inappropriately and she did not believe he would ever do so. She felt it was proper to leave Alexandria alone with him but had not done so. Grandmother took care of her and took her wherever grandmother went. Grandfather just played with her. Grandfather was willing to move out if the court required him to do so in order for Alexandria to remain in grandmothers custody pending the investigation. Grandmother also would abide by such a court order precluding grandfather from contact with Alexandria during the investigation. She denied that either she or grandfather threatened taking Alexandria out of state.
While there is evidence removal of Alexandria from grandparents home was unnecessary in that grandparents were providing Alexandria with a stable, loving home and reasonable measures could have been taken to avoid her removal, we cannot find the trial court abused its discretion based on the testimony provided during the detention hearing, particularly since grandfather was a registered sex offender.
Under section 355.1, evidence that grandfather was a registered sex offender constituted prima facie evidence that Alexandria was at risk. The prima facie evidence constitutes a presumption affecting the burden of producing evidence, which the trial court reasonably concluded grandparents failed to refute. Here, the totality of the evidence was sufficient to support the trial courts order removing Alexandria from grandparents home.
Section 355.1, subdivision (d); In re John S. (2001) 88 Cal.App.4th 1140, 1145.
4. Grandparents De Facto Parent Standing
Grandparents contend the trial court erred in denying their petitions for de facto parent standing.
On August 14, 2002, the trial court held dispositional and jurisdictional hearings, in addition to a hearing on grandmothers petition for de facto parent status. Initially, the trial court stated that the petition for de facto parent status would be heard after the dispositional and jurisdictional hearings. Grandmothers attorney objected and requested that grandmother be permitted to participate in the dispositional and jurisdictional hearings. Fathers attorney requested the de facto petition be heard before the dispositional hearing. The trial court concluded it would hold the jurisdictional hearing first, the hearing on the petition for de facto standing second, and the dispositional hearing last.
The trial court appropriately delayed hearing grandparents de facto petitions until after the jurisdictional hearing since under California Rules of Court, rule 1412(e), "a de facto parent is entitled to participate in disposition hearings and any subsequent hearing. The rule does not provide de facto parents the right to participate in jurisdictional hearings, nor do the decisional authorities suggest they have such a right."
In re Rachael C. (1991) 235 Cal.App.3d 1445, 1454, italics added.
Before commencing the jurisdictional hearing, the trial court ordered grandparents to leave the courtroom during the jurisdictional hearing because they did not have standing in the matter and thus could not participate in the jurisdictional hearing.
A. Jurisdictional Hearing
During the jurisdictional hearing, the court entered into evidence the detention report (filed May 30, 2002), amended detention report (filed June 3, 2002), jurisdiction report (filed June 20, 2002), and addendum report (filed dated August 13, 2002). No other evidence was submitted. Fathers attorney argued that, although father had a history of drug abuse, there was no evidence regarding his ability to parent. As to the allegation he left his child with grandfather, a registered sex offender, Alexandria was not in his custody when mother left Alexandria with grandmother and grandfather. Father was in prison. Therefore there was no evidence he knowingly left Alexandria in the custody of a registered sex offender.
Mothers attorney submitted on the substance abuse allegation.
The trial court found true the petition allegations that mother had a history of drug related charges, father had a history of drug related arrests and convictions, and mother and father knowingly left their child in the care of a registered sex offender. The trial court concluded that it was not in the best interest of Alexandria to be placed in her parents or grandparents home and ordered her removed from grandmothers physical custody. The court further struck from the amended petition allegations concerning grandmother as guardian because she was no longer Alexandrias legal guardian.
The court then permitted the grandparents to return to the courtroom for the hearing on their petitions for de facto status.
As discussed above, grandmother had standing to appear and be heard during the jurisdictional hearing as Alexandrias guardian at the time of the filing of the dependency petition. The trial court thus erred in excluding her from the jurisdictional hearing.
Grandfather, on the other hand, did not have a right to be heard and appear in the jurisdictional matter but the court had discretion to allow him to attend the hearing under California Rules of Court, rule 1410(e) and section 346, as a person having a direct and legitimate interest in the case.
B. Petitions for De Facto Parental Standing
Grandmother and grandfather argue the trial court erred in denying their petitions for de facto parental status, and we agree.
California Rules of Court, rule 1401(a)(6) defines a de facto parent as follows: "`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 childs physical and psychological needs for care and affection, and who has assumed that role for a substantial period[.]"
Rule 1412(e) provides that, "Upon a sufficient showing the court may recognize the childs present or previous custodians as de facto parents and grant standing to participate as parties in disposition hearings and any hearing thereafter at which the status of the dependent child is at issue. The de facto parent may: [¶] (1) Be present at the hearing; [& para;] (2) Be represented by retained counsel or, at the discretion of the court, by appointed counsel; [¶] (3) Present evidence."
"[D]e facto parents should be permitted `to appear as [full] parties, not mere amici curiae, in a juvenile dependency proceeding. Their standing, we stressed, does not depend upon pending guardianship applications. Rather, we held, the fact of de facto parenthood alone should entitle them to intervene and protect their `own interest in the childs care and custody. [Citation.]"
In re Kieshia E. (1993) 6 Cal.4th 68, 75-76.
Factors to be considered in determining de facto parent status include "[1] whether the child is psychologically bonded to the adult; [2] whether the adult has assumed the role of a parent on a day-to-day basis for a substantial period of time and [3] possesses information about the child unique from the other participants in the process; [4] whether the adult has regularly attended juvenile court hearings; and [5] whether a future proceeding may result in an order permanently foreclosing any future contact with the adult. Above all, the decision depends on the particular individual seeking such status and the unique circumstances of the case."
In re Ashley P. (1998) 62 Cal.App.4th 23, 27; In re Leticia S. (2001) 92 Cal.App.4th 378, 383, footnote 4.
We review the trial courts decision to grant or deny a de facto parent motion for abuse of discretion. Generally, the lower court does not abuse its discretion if substantial evidence supports its determination to grant or deny de facto parent status.
In re Michael R. (1998) 67 Cal.App.4th 150, 151; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Stephanie M. (1994) 7 Cal.4th 295, 318.
In re Michael R., supra, 67 Cal.App.4th at page 151.
In the instant case, on June 24, 2002, grandparents, who were in pro per, each filed a form petition for de facto parent status. They stated in their petitions that Alexandria had lived with them from October 2001 until June 2002. Mother had left Alexandria in grandparents care and had consented to grandmother being Alexandrias guardian. Grandparents requested de facto parent status so they could participate in the dependency proceedings and to regain custody of Alexandria.
In grandmothers supplemental declaration supporting her petition for de facto status she summarized the course of events leading to the filing of grandparents petitions for de facto standing. Grandmother stated that Alexandria had been living with grandparents for eight months due to her parents substance abuse problems. In asserting Alexandria was not at risk of harm in grandparents home, grandmother noted that the DCS waited 10 days to investigate the matter after the sheriff deputy visited her home and submitted a report, and waited to file the dependency petition another 11 days after the social worker visited her home. Grandmother attached to her declaration copies of documents which she claimed established the sexual crimes charged against grandfather were false. Also attached were grandfathers declaration and nine supporting declarations by grandparents close friends.
Grandmother further stated in her declaration that grandfather had become angry when the social worker said to him, "you have previously been convicted of sex crimes against a child." This upset grandfather because this was untrue but he then apologized to the social worker and invited her back into grandparents home. The social worker refused to return, responding, "That just cost you your grandchild. Grandmother stated in her declaration that if she suspected grandfather of harming Alexandria, she would divorce him and obtain an order barring him from entering her home. Grandmother denied being under grandfathers control and objected to the court not allowing grandfather to visit Alexandria. Grandmother stated it was her intention to provide Alexandria with love and a safe living environment until Alexandrias parents were able to do so.
During the hearing, the DCS and counsel for Alexandria opposed de facto status. After listening to oral argument, the trial court discussed the various factors considered in determining de facto status. The court stated as regards grandfather, "[T]he psychological bond is questionable from what I read in the report." As to grandmother, the court did not dispute Alexandria had bonded with her.
Grandmothers attorney responded that there were witnesses present who had considerable contact with Alexandria and grandparents, and they would testify to the bond between Alexandria and grandparents and that grandfather did not pose a risk to Alexandrias welfare. The court refused to hear any testimony and found that, as to grandparents assuming the role of parent for a substantial period of time, "I suppose they have."
The court also acknowledged grandparents possessed unique information regarding Alexandria but they could provide such information to the court merely by being called as witnesses. The court acknowledged they had regularly attended juvenile court proceedings. As to an order in a future proceeding foreclosing grandparents future contact with Alexandria, the court acknowledged it was a possibility but assumed fathers attorney would protect grandparents interests in that regard.
The only evidence supporting the courts finding grandfather had not psychologically bonded with Alexandria is the social workers statement in the DCS jurisdictional/dispositional addendum report filed August 13, 2002, that "The child views [grandfather] as mean (ill tempered). Alexandria said, `grandpa is mean in the presence of the undersigned and Valerie Alba, SW-II, on two (2) separate occasions. She stated, `grandpa is mean in Valeries presence during a supervised visit with [grandmother] on or about July 03, 2002. Also, in the undersigneds presence, Alexandria stated `grandpa is mean and `grandpa is mean to grandma during a supervised visitation with father on or about July 22, 2002. Both [grandmother] and [fathers] unsolicited response was, `some one is telling her that."
On the other hand there was substantial evidence of bonding. Alexandria had lived with grandfather for over six months and there were declarations by numerous individuals confirming that grandparents had provided Alexandria with a happy, loving, stable home and had assumed the role of parents on a day-to-day basis.
The record also shows that grandparents had attended all of the juvenile proceedings, other than the jurisdictional hearing, which the trial court barred them from attending, and there was the possibility a future juvenile proceeding would result in an order permanently foreclosing them from any future contact with Alexandria. The evidence also showed that, as Alexandrias custodians for a substantial period of time during a very formative period in her life, grandparents had unique knowledge that even her parents and others quite likely did not possess.
Furthermore the court had discretion to allow grandfather, as a relative of Alexandria, to participate in the dependency proceedings from their inception under California Rules of Court, rule 1412(f), which provides: "(f) Upon a sufficient showing the court may permit relatives of the child to: [¶] (1) Be present at the hearing; [¶] (2) Address the court."
As to grandmother, there was no basis for denying her de facto parent status, particularly since she had been Alexandrias legal guardian until the probate court vacated her guardianship on July 8, 2002, as a consequence of the pending dependency proceedings and removal of Alexandria from her custody. As to grandfather, evidence supporting denial of de facto status was also insufficient. Alexandrias alleged statement that grandfather was mean and grumpy was insufficient in light of courts liberal application of de facto parent status. "Within its limited scope, the doctrine of de facto parenthood has since been liberally applied to ensure that all legitimate views, evidence, and interests are considered in dispositional proceedings involving a dependent minor."
In re Kieshia E., supra, 6 Cal.4th 68, 76.
As regards the fact grandfather is a registered sex offender, this is a significant factor in determining custody and placement, but under the circumstances in this case it is not sufficient ground for denying grandparents de facto parental standing, and certainly not as to grandmother. The DCS argued in the trial court that de facto status should be denied pursuant to In re Kieshia E. because grandfather was a registered sex offender. The trial court correctly acknowledged In re Kieshia E. was not on point but nevertheless denied de facto status in part on the ground grandfather was a registered sex offender.
In re Kieshia E., supra, 6 Cal.4th 68.
In In re Kieshia E. the California Supreme Court held that any nonparent adult who causes the onset of dependency proceedings by committing sexual or other serious physical abuse upon a child in his or her charge, has abandoned the role of parent and forfeits any opportunity to attain the legal status of de facto parent. Here, the dependency proceedings were not initiated due to sexual or physical abuse committed by grandfather against Alexandria. Kieshia E. thus has no relevance in the instant case other than as regards general principles applicable to determining de facto parental status.
We conclude the trial court abused its discretion in denying grandparents de facto parent status and, in turn, committed prejudicial error in excluding them from the dispositional hearing. By excluding them, they were precluded from presenting evidence establishing that grandfather did not pose a threat to Alexandrias safety and well-being and that it was in her best interests to be returned to their custody or, at a minimum, to be permitted to continue visiting grandparents. "`[S]uch persons who have experienced close day-to-day contact with the child are among the custodial alternatives the court must appraise, and their views `deserve consideration. [Citation.] Indeed, we noted, when parental custody would be `detrimental to a child, the Family Law Act gives next custodial preference to `the person or persons in whose home the child has been living in a wholesome and stable environment. [Citation.]"
In re Kieshia E., supra, 6 Cal.4th at page 75, quoting Civil Code section 4600, subdivision (b)(2), recodified as Family Law Code section 3040, subdivision (a)(2).
Grandparents should have been permitted to participate in the dispositional hearing as de facto parents and grandmother was entitled to participate in all of the dependency proceedings as Alexandrias guardian at the time DCS filed the dependency petition.
We note the record indicates the court only considered grandmothers petition, which should have been granted. The trial court did not rule on grandfathers petition for de facto status. Accordingly, we conclude the trial court committed prejudicial error in denying both grandparents de facto parental status.
5. Disposition
The order denying grandparents de facto parent status and the dispositional order are reversed. The juvenile court is instructed on remand to (1) vacate the order denying grandparents de facto parent status and enter a new order granting de facto parent status; (2) vacate the dispositional order; and (3) hold a new dispositional hearing allowing grandparents, as de facto parents, an opportunity to establish that grandfather is of good character as to justify placement, that placing Alexandria back in grandparents home does not present a risk of harm to Alexandria, and returning her to her grandparents custody is in her best interests.
We concur: Ward, Acting P.J. King J.