Opinion
G055148
02-15-2018
In re M.C., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. Y.T., Objector and Appellant.
Shobita Misra, under appointment by the Court of Appeal, for Objector and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DP024113-001) OPINION Appeal from an order of the Superior Court of Orange County, Dennis J. Keough, Judge. Dismissed. Shobita Misra, under appointment by the Court of Appeal, for Objector and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
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INTRODUCTION
Y.T. is the maternal great aunt, caretaker, and de facto parent of M.C., who was taken into protective custody soon after his birth in August 2013. Parental rights were terminated in 2014, and this matter is in the permanent plan stage. M.C. has two older siblings, R.C. and A.C., who have been adopted by their paternal grandparents.
Y.T. appeals from the juvenile court's order vacating a prior order terminating M.C.'s overnight sibling visitation and authorizing SSA to arrange one such overnight visit per month. The juvenile court made the order in response to a petition under Welfare and Institutions Code section 388 brought by Orange County Social Services Agency (SSA).
All code references are to the Welfare and Institutions Code.
Y.T.'s claim of standing to appeal is based on her status as a de facto parent. A de facto parent does not have standing to appeal every juvenile court order, and we conclude Y.T. did not have standing to appeal from the juvenile court's order authorizing SSA to arrange overnight visitation. M.C., who would have standing, was represented by counsel, who did not oppose the order and has not appealed from it. We therefore dismiss the appeal.
FACTS AND PROCEDURAL HISTORY
I.
M.C. Is Detained, Appointed Counsel, and Placed with Y.T.
A hospital hold was placed on M.C. soon after he was born because he and his mother (Mother) tested positive for methamphetamine. Mother and the presumed father (Father) had been using methamphetamine together when Mother went into labor. Mother and Father have two other sons, R.C. (born in 2010) and A.C. (born in 2011), who were removed earlier in 2013. R.C. and A.C. had been declared dependents of the court and placed with the paternal grandparents. Mother later gave birth to a daughter, who was also removed from her care. Neither Mother nor Father is a party to this appeal.
SSA filed a dependency petition alleging one count of failure to protect (§ 300, subd. (b)) and one count of abuse of sibling (§ 300, subd. (j)). The juvenile court ordered that M.C. be detained and appointed counsel (Minor's Counsel) to represent him.
Shortly after M.C. was born, Y.T. agreed to have him placed in her care. Y.T. lived in her sister's three-bedroom house in Riverside County with her sister, brother-in-law, and father. SSA approved the home. On August 28, 2013, M.C. was released from the hospital and placed in Y.T.'s care. M.C.'s paternal grandmother requested visitation with M.C. and wanted R.C. and A.C. to visit him.
In October 2013, the juvenile court sustained the dependency petition as amended by interlineation and ordered that M.C. be declared a dependent child of the court.
II.
Adoption Home Study For Y.T. Commences; Parental
Rights are Terminated.
In March 2014, SSA reported that M.C. had adjusted to placement with Y.T., who had ensured his needs were met. M.C. appeared to be healthy and "well-cared for," and Y.T. had followed through with all necessary medical appointments. Y.T. had expressed interest in adopting M.C. if reunification were unsuccessful. Y.T.'s adoption home study had been assigned to an adoptions worker.
At the six-month review hearing in April 2014, the juvenile court terminated reunification services for both Mother and Father and set a permanent plan hearing under section 366.26 for August 2014.
An adoption home study referral for Y.T. was made in May 2014. By August 2014, Y.T.'s adoption home study had not been completed. A Prospective Caregiver Assessment reported favorably on Y.T's willingness and ability to adopt M.C.
At the permanent placement hearing in August 2014, the juvenile court terminated Mother's and Father's parental rights and ordered adoption as the permanent plan. The court found that M.C. had siblings under its jurisdiction and approved SSA's case plan, which included monitored visitation among M.C., R.C., and A.C. at the discretion of the caretakers.
III.
Y.T. Is Granted De Facto Parent Status, But Her Home
Study Is Closed.
M.C. generally did well under Y.T.'s care. Y.T. was consistently found to have met M.C.'s emotional, physical, and medical needs. Y.T. loves M.C. and was devoted to caring for him, and he was strongly attached to her. M.C. was found to be developmentally on target except for expressive language. He participated in speech therapy and behavioral therapy.
Y.T. was granted de facto parent status and prospective adoptive parent status. As of October 2014, the adoption home study had not been completed. Although Y.T. had completed the adoption application, a number of documents had to be submitted and activities undertaken in order to complete the home study process. It was anticipated the home study would be completed in about April 2015.
As of July 22, 2015, the date of the SSA status review report, Y.T. had not made progress in completing the adoption home study. Y.T. had moved out of her sister's house and had not been able to find stable housing.
On July 31, 2015, M.C. had his first overnight visit with R.C., A.C., and paternal grandparents. The visit was held at paternal grandparents' home. M.C. was picked up by his paternal uncle, E.C. (Paternal Uncle), who lived with paternal grandparents and was also interested in adopting M.C. M.C. cried a little after leaving Y.T. but appeared to have a good time at the overnight visitation. Paternal grandparents returned M.C. to Y.T. the next day.
In August 2015, Y.T. moved back into her sister's home. The home was approved for placement and new background checks cleared all of the residents. Y.T. was provided a list of pending items for the adoption home study. However, in September 2015 her home study was placed on hold so that she could participate in counseling and parenting education services. In February 2016, the adoption home study was closed because Y.T. had not made progress in completing it. Nevertheless, SSA acknowledged that Y.T. met M.C.'s physical and medical needs and that M.C. appeared to be "well cared for."
IV.
M.C. Has Monthly Siblings Visits With R.C. and A.C.
By February 2016, SSA was authorized to transport M.C. to paternal grandparents' home for monthly sibling visits. Paternal grandparents agreed to transport M.C. back to Y.T.'s home. M.C. was taken to paternal grandparents' home for an overnight visit on February 26, 2016 and was returned to Y.T. the next day. At paternal grandparents' home, M.C. held onto the social worker's leg and cried. Paternal grandmother was able to coax M.C. off the social worker's leg and to let paternal grandmother carry him into the house.
The same social worker went to pick up M.C. on March 25, 2016 to take him to a visit at the paternal grandparents' home. When M.C. saw the social worker he cried and said he did not want to go. It took about 20 minutes to calm M.C., but when Y.T. and another woman tried to place him in the car child seat, he fought them and screamed. The visit was cancelled.
At a Permanency Team Decision Making meeting in March 2016, SSA determined that M.C. should continue to be placed with Y.T., who would look for appropriate housing and a job, and continue in therapy. The case plan continued to require monthly sibling visits.
Due to M.C.'s resistance to being transported to sibling visits by a social worker, visits were arranged to take place midway between Y.T.'s home and paternal grandparents' home. On the last weekend in April 2016, Paternal Uncle drove to Y.T.'s home to pick up M.C. for a weekend visit. Once M.C. was placed in the car he started crying, and Y.T. would not let him leave. Paternal Uncle explained that M.C. always cried at the beginning but stopped once they were on the road. Y.T. disagreed and would not let M.C. leave.
The assigned social later met with Y.T., who said that on the day in question M.C. would not let go of her even though she and her sister encouraged him to go. The social worker suggested that Y.T. and paternal grandparents agree on a public place midway between their homes for monthly sibling visits with both caretakers transporting and present.
V.
Y.T.'s Home Study Is Denied; Overnight Sibling Visits
Are Terminated.
In June 2016, after Y.T. had completed therapy, SSA reopened her home study and informed her that she needed to submit a new application to adopt packet. In November 2016, Y.T.'s home study was denied. Several reasons were given for the denial, including lack of progress in completing pending items, Y.T.'s unemployment, failure to find daycare for M.C., health and unresolved emotional issues, unstable housing, reliance on foster care monetary assistance and food stamps for financial support, and difficulty in controlling M.C.'s aggressive behavior.
In October 2016, the adoption of R.C. and A.C. by paternal grandparents was completed. Paternal grandparents and maternal grandparents had expressed an interest in adopting M.C., as had Paternal Uncle, the adoptive parents of M.C.'s baby sister, Y.T.'s adult daughter, and, later, Y.T.'s sister, who expressed an interest in co-adopting with Y.T. At a Permanency Team Decision Making meeting in November 2016, Y.T. acknowledged that M.C. had outbursts of anger that were out of control. She said she loves M.C., had been his mother, wanted the best for his future, and wanted to continue to be part of his life if he were placed elsewhere.
Paternal grandparents deferred placement of M.C. to Paternal Uncle, who was approved for placement in February 2017. The adoptive parents of M.C.'s baby sister had an updated adoption home study.
In February 2017, Y.T's grievance review challenge of her adoption home study denial was unsuccessful. At a March 2017 Team Decision Making meeting, the participants, including Y.T., agreed to transition the child to another adoptive placement, either Paternal Uncle or the adoptive parents of M.C.'s sister.
In March 2017, Paternal Uncle and A.C. visited M.C. at Y.T.'s home. The visit lasted about one hour and 45 minutes. Y.T. was present. M.C. initially was shy but eventually played with A.C. and appeared to enjoy the visit. Thereafter, Paternal Uncle visited M.C. weekly at a location in Riverside County. M.C. also had three weekend visits with Paternal Uncle in April 2017. On April 11 and May 1, 2017, Y.T. reported that M.C. enjoyed his weekend visits with the Paternal Uncle and returned healthy and well cared for, with no behavioral issues. Also in March 2017, M.C. had a visit with his baby sister and her adoptive parents at a park. The children played and the visit went well.
On April 13, 2017, the assigned social worker gave Y.T. a notice of intent to remove a child and informed her that Paternal Uncle would pick up M.C. on April 20. On that day, Y.T. filed an ex parte request for a hearing and an order barring removal of M.C. from her home pending that hearing. Minor's counsel supported keeping M.C. with Y.T. pending a hearing. The court found a prima facie case, set a hearing for May 8, 2017, and ordered that M.C. not be removed from Y.T.'s home pending the hearing except in an emergency.
At the hearing on May 8, 2017, SSA requested the court's permission to place M.C. in a prospective adoptive home with other caregivers, i.e. Paternal Uncle. Y.T.'s counsel objected on the ground the only basis for removing M.C. was Y.T.'s delay in providing certain documents for the home study, which had nothing to do with the safety of M.C., who was thriving in Y.T.'s care. Minor's counsel joined and asked the court to terminate overnight sibling visits at Paternal Uncle's home. Minor's counsel argued: "[O]ur investigations reveal that the overnight visits that were being conducted at the [P]aternal [U]ncle's home were not going [as] well as [SSA] states in today's report; that [M.C.] would cry at night and ask for his caregiver, [Y.T.] During the day when he was busy playing, he was fine as most kids are. [¶] However, when it came to his nighttime routine to who he looked at for care and comfort, that was [Y.T.], and she was not there."
The juvenile court ordered that M.C. not be removed from Y.T.'s home until further order, that Y.T. be reevaluated for another adoption home study, and that Y.T. move forward toward adoption. The court did not preclude SSA from evaluating other placement options. The court ordered overnight visitation with Paternal Uncle to cease forthwith "based on the emotional dislocation experienced by the child." The court allowed "day visits or other interactions" between the siblings at Paternal Uncle's home.
VI.
The Juvenile Court Reauthorizes Overnight Sibling Visits.
Y.T.'s home was reassessed for placement on May 26, 2017. Y.T. and her sister expressed a desire to co-adopt M.C. and turned in an adoption application. Paternal Uncle's home had been approved for placement.
M.C. spent a day in May at Paternal Uncle's home. The assigned social worker saw M.C. "happily running and racing cars around a couch with his brothers."
On June 6, 2017, SSA filed a request to change court order under section 388 (the Section 388 Petition) requesting the court to allow one overnight visit each month with the Paternal Uncle, R.C., and A.C. SSA claimed the change justifying the order was: "[M.C.] enjoys his visits with his two full siblings and [P]aternal [U]ncle. The drive each way to pick up and return the [M.C.] is one hour. The long drive time to pick up and return the [M.C.] makes it difficult . . . to enjoy a full day with his brothers, uncle and grandparents."
On June 12, 2017, the juvenile court heard argument on the Section 388 Petition. Linh Redhead of the Law Offices of Harold La Flamme appeared as Minor's Counsel. At the May 8 hearing, Mari Duque of that law office had appeared as Minor's Counsel, expressed concerns about overnight visits, and joined in the request to terminate those visits. Redhead did not have those concerns. She argued: "I have looked at the case and I have been on the case for quite some time. I don't share that concern. Our office has talked to [M.C.], has evaluated the situation. We don't feel it's detrimental for [M.C.] to visit his brothers, uncle, and grandparents overnight as well as having extended visits. [M.C.] actually enjoys the visits. He enjoys playing with his brothers and spending time with his uncle."
Y.T.'s counsel appeared and argued SSA had not made a prima facie case for a hearing and there was no evidence of changed circumstances since May 8, 2017 or of M.C.'s best interests. Counsel argued it would be traumatic to M.C. to renew overnight visits after a period of no visitation and claimed the Section 388 Petition was an attempt to circumvent the court's order not to remove M.C. from Y.T.'s home.
Without expressly granting the Section 388 Petition, the court denied a hearing on it, vacated its prior order terminating overnight visits, and reinstated SSA's authority to provide for overnight visits once a month starting on June 27, 2017. Y.T. timely appealed.
DISCUSSION:
Y.T. LACKS STANDING TO APPEAL
Y.T. challenges the juvenile court's jurisdiction to reinstate SSA's authority to provide overnight visits. First we must address SSA's argument that Y.T. lacks standing to bring this appeal. "'"Standing" is a party's right to make a legal claim and is a threshold issue to be resolved before reaching the merits of an action.'" (Dent v. Wolf (2017) 15 Cal.App.5th 230, 233-234; San Francisco Apartment Assn. v. City and County of San Francisco (2016) 3 Cal.App.5th 463, 472 ["'A litigant's standing to sue is a threshold issue to be resolved before the matter can be reached on its merits."].)
Y.T. is M.C's de facto parent, and her standing to bring this appeal is based solely on her de facto parent status. "De facto parent status does not confer the rights of a parent or even a legal guardian." (In re P.L. (2005) 134 Cal.App.4th 1357, 1361.) "The de facto parenthood doctrine simply recognizes that persons who have provided a child with daily parental concern, affection, and care over substantial time may develop legitimate interests and perspectives, and may also present a custodial alternative, which should not be ignored in a juvenile dependency proceeding. The standing accorded de facto parents has no basis independent of these concerns." (In re Kieshia E. (1993) 6 Cal.4th 68, 77-78.) "A person becomes a de facto parent by application to the court when he or she has participated in the day-to-day care and rearing of the child over an extended period of time." (Clifford S. v. Superior Court (1995) 38 Cal.App.4th 747, 751.)
A de facto parent has standing to participate as a party at the dispositional hearing and any subsequent hearing "at which the status of the dependent child is at issue." (Cal. Rules of Court, rule 5.534(a).) "De facto parents have the right to be present at the dependency proceedings, to have retained or, at the discretion of the court, appointed counsel and to present evidence at the hearings. [Citation.] However, the status of de facto parenthood does not give de facto parents the rights and responsibilities of parents or guardians. [Citation.] Specifically, they do not have the right to reunification services, custody or visitation." (Clifford S. v. Superior Court, supra, 38 Cal.App.4th at p. 752.)
"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), and their "nexus with the proceeding" is a "separate interest and relationship with the child" apart from the parent's efforts to reunify (In re Vanessa Z. (1994) 23 Cal.App.4th 258, 261).
Consequently, a de facto parent does not have standing to challenge every juvenile court order. Instead, the de facto parent has standing to challenge only those orders pertaining to things to which the de facto parent is entitled. (In re J.T. (2011) 195 Cal.App.4th 707, 718.) Thus, a de facto parent does not have standing to challenge termination of parental rights or to block the minor's adoption. (Ibid.) A de facto parent does not have standing to challenge an order denying reunification services because the de facto parent had no right to such services in the first place. (Clifford S. v. Superior Court, supra, 38 Cal.App.4th at p. 752.) A de facto parent does not have standing to appeal an order approving placement of the dependent child with someone else because a de facto parent has no right to placement. (In re P.L., supra, 134 Cal.App.4th at pp. 1361-1362; see In re Alexandria P. (2014) 228 Cal.App.4th 1322, 1342-1343 [de facto parent does not have standing to challenge ICWA placement preferences].)
In In re E.R. (2017) 18 Cal.App.5th 891, the Court of Appeal addressed whether a de facto parent has standing to challenge the dependent children's permanent plan, including visitation orders. The court concluded that the de facto parent could not appeal visitation orders made during periodic reviews under section 366.3, subdivision (e). (In re E.R., supra, 18 Cal.App.5th at pp. 894-895.) Although the de facto parent's continued involvement in the juvenile court proceedings was "clearly warranted," the de facto parent "lacks standing to raise any challenges with respect to the minors' permanent plans before this court." (Id. at p. 896.)
Likewise, Y.T. does not have standing to challenge the juvenile court's order reinstating SSA's authority to arrange overnight visits. Y.T., as de facto parent, had no right to visitation or to prevent sibling visitation with M.C., and therefore had no standing to appeal visitation orders. The juvenile court's order, whether issued in the course of a periodic review or the product of granting the Section 388 Petition, was a component of M.C.'s permanency plan under section 366.3. Y.T., as a de facto parent, does not have standing to challenge that plan.
Y.T., as a de facto parent, had a right to be present and participate at the hearing on the Section 388 Petition. (Cal. Rules of Court, rule 5.534(a); see In Re Damon B. (2011) 202 Cal.App.4th 880, 889-890; see In re Cole C. (2009) 174 Cal.App.4th 900, 913 ["Due process in the context of dependency law tends to focus on the right to a hearing, the rights to notice and opportunity to present objections."].) Y.T. was afforded and exercised those rights: She was present at the hearing and was represented by counsel, who made an offer of proof in response to the Section 388 Petition. Y.T. was not "shut out" of the dependency proceeding, but had appointed counsel, received notice of the hearing, and "did acquaint the court with [her] opinion" as to overnight visitation. (In Re Damon B., supra, 202 Cal.App.4th at p. 889.) Having been afforded the rights to which she was due as a de facto parent, Y.T. lacks standing to appeal the order reinstating SSA's authority to arrange overnight visits. M.C., who has standing to challenge that order, was represented by Minor's counsel who supported the Section 388 Petition.
Counsel made this offer of proof: "[M.C.] did have significant negative reactions after the overnight visitation with [E.C.] and the siblings. And that since that visitation has terminated, his behavior has stabilized. I believe that . . . his behavior at school has settled down over this last month since the visitation has been terminated." --------
DISPOSITION
The appeal is dismissed.
FYBEL, J. WE CONCUR: O'LEARY, P. J. IKOLA, J.