Opinion
C082198
05-10-2017
In re ABEL S., a Person Coming Under the Juvenile Court Law. BUTTE COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. B. C., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J37651) Barbara C. appeals from the juvenile court's order denying her petition for de facto parent status as to minor Abel S. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The minor, born in August 2015, was placed with Barbara C. as a foster child from August 10, 2015, until April 4, 2016. The minor was exposed to drugs at birth and showed developmental delay.
On April 4, 2016, Abel S. was removed from Barbara C.'s custody and placed in a different home because Barbara C. allegedly missed three medical appointments for the minor and failed to follow through on her initial contact with Far Northern Regional Services (Far Northern) to treat Abel S.'s developmental delays. Although Barbara C. was notified that the Children's Services Division of Butte County Department of Health and Human Services (the department) would pick up Abel S. on April 4 at 9:00 or 9:30 a.m., Barbara C. intentionally left the house and did not give Abel S. to the department until 8:30 p.m. that night.
On May 2, 2016, Barbara C. petitioned the juvenile court for de facto parent status. She alleged that she was the minor's full-time foster parent for eight months, that she had attended court hearings about the minor, and that the minor had "come a long way" in her custody: "[W]hen he first came to us, he was listless and barely fussed. Now he smiles, verbalizes and jumps up and down when we hold him."
The application attached an assessment by Far Northern dated March 4, 2016, indicating that the minor might benefit from the agency's services. The assessment stated: "Abel's foster mother appears to provide him with a warm and loving environment and appears to have good family support. She has a good understanding of Abel's development and was interested in talking about his skills. She appears to have a good understanding of Abel's strengths, limitations and areas of concern. She expressed concern regarding Abel's motor development and shared that his left arm is slower to reach tha[n] his right arm. She is interested in any available services to help promote Abel's development. She appears to be a good advocate for Abel and will follow through with recommended services."
The application also attached four letters in support. One letter, written by Christopher C., Barbara C.'s 30-year-old, live-in adoptive son, who described his efforts to help Barbara C. raise the minor. Two others, written by friends of Barbara C., recommended her as an adoptive parent, but did not mention de facto parenthood. Finally, a letter purportedly written by Dan Katz, "Adoption Worker -- Butte & Lassen Counties," also recommended Barbara C. as an adoptive parent and did not mention de facto parenthood.
This letter displayed shaky grammar, spelling, and punctuation, and an equally shaky signature. At the hearing, the judge, who had known Katz professionally for a long time, asked Barbara C. how she got this "bizarre" letter, which was not on official stationery and had awkward grammar. The court stated that it did not think the letter sounded like it came from Katz.
Christopher C. testified that Katz had been the adoption worker for Christopher C.'s own adoption by Barbara C. When Katz heard about the current proceedings, he offered to help. He emailed the letter to Christopher C. Christopher C. could not produce the email at that time, but offered to do so at a later hearing.
The juvenile court held a hearing on the petition on May 23, 2016. Barbara C., Christopher C., and social worker Favihola Mendez testified.
Favihola Mendez testified she was a social worker with Butte County Children's Services and was assigned to Abel S.'s case. Mendez directed a coworker to inform Barbara C. on March 28 that Abel S. would be removed from her care because she had missed three medical appointments for the minor and failed to follow through with Far Northern about Abel S.'s treatment. The coworker called Barbara C. but did not get an answer, so she left a voice message on March 29 telling her that Abel S. would be removed from her home on April 4 at 9:00 a.m. Mendez contacted Barbara C.'s son, Christopher C., on March 30 and told him of the pending removal. Mendez was not aware of any requirement that notice of removal be given in writing.
Mendez was alerted to the missed appointments by an Options for Recovery nurse who made visits to Barbara C.'s home. The nurse indicated that Barbara C. lied about Abel S.'s doctor's appointments when she previously said the doctor had canceled them. Mendez confirmed with doctors that Barbara C. had actually canceled three doctor appointments which were supposed to occur on January 9, February 3, and March 8, 2016. The January 9 appointment was for Abel's four-month checkup and immunizations, which Barbara C. eventually made up on March 9 with multiple appointments canceled in the interim. During this time, Abel was behind on his immunizations, which should have been administered at the four month checkup.
In December 2015, Abel S. was referred to Far Northern for a developmental assessment because he had been exposed to drugs. In January, Mendez found out that Barbara C. had not taken Abel S. for the assessment and told her she needed to take Abel S. to the assessment in order to meet his needs. An appointment was set for January 29, which Barbara canceled because she was "too busy." Abel was eventually assessed on February 24.
On April 4, the day arranged to pick up Abel S., Mendez went to Barbara C.'s house, but she was not there. Mendez retrieved sheriff's deputies to assist her because she thought Barbara C. was inside the house, just not opening the door. She received two phone calls from Barbara C., but was not able to answer because she did not have a signal. When she attempted to call Barbara C. back, nobody answered her calls.
Barbara C. testified that she received custody of Abel S. when he was five days old and was released to her from the hospital. The minor lived with her for seven months until April 4, when he was removed. She prepared all his meals, bathed him every day, and took him to medical appointments. He had his own room, but mostly stayed with her. She took him to the mall and the park. He loved birds and stuffed animals. He also loved his "snuggly," a device she wore on her chest to hold Abel S., so that he could snuggle with her. When he first came into her home, he was listless and nonresponsive, but as he stayed with her he became "just a little, happy, wiggly baby, super excited just to see you, and just responding." According to Far Northern's assessment attached to the petition, Barbara C. communicated with the minor by using eye contact, and he replied with body language. She told Far Northern that the minor's left arm was slower to reach than his right arm.
Barbara C. admitted that the minor had not had a doctor appointment from November 2015 until March 2016, but denied that she had canceled his appointments and claimed it was the doctor who had canceled them. Barbara C. denied that she had canceled an appointment on January 9, 2016. However, there was an appointment on "the 19th" (month unspecified), which Barbara C. canceled because she was sick, but rescheduled it for February 23. The appointment had originally been set for December, which the doctor canceled and rescheduled because the doctor was on vacation. The doctor also canceled the February 23 appointment due to a family emergency. According to Barbara C., these appointments did not cause Abel S. to miss his shots, but were just checkups. She was certain that he was up to date on his immunizations. Asked whether she recalled, "as a foster parent," that there is a four-month checkup, Barbara C. did not answer directly. She did know there are mandatory medical appointments at particular times in a child's life. Asked if there was a reason she missed Abel S.'s four-month appointment, she said ambiguously: "I have no problem with that." Barbara C. stated that she had an appointment with Far Northern for January 29, 2016, but canceled it because she was ill. She denied telling them that she was too busy to go to that appointment or to an appointment the next week. She could not say whether the appointment finally occurred on February 24, 2016, because she did not have her paperwork with her, but she made "gads" of appointments and went to all of them. She did not recall who asked Far Northern to assess the minor, but she wanted it done because of Abel S.'s drug exposure.
Later in her testimony, Barbara C. stated Abel S. did go to the doctor in November.
Barbara C. had many years of experience as a foster parent. She adopted Christopher C. after he was placed with her at five weeks old, because no one else would have been able to take him with "what was in his background."
On March 4, 2016, at a meeting with social worker Mendez, Barbara C. was told that the minor was not adoptable because he was going to be placed with his father or his mother. Barbara C. understood that the parents had a plan of family reunification, and she was "totally cooperative with that." She admitted, however, that when an adoption specialist visited her at her home she said she intended to adopt the minor "for our family, for the little boy." She admitted that she was never "identified as the concurrent plan of adoption."
Christopher C. lived with Barbara C. and supported her testimony as to the care she provided Abel S. and the bond they had developed.
Christopher C. testified he was with Barbara C. all day on April 4, when she was supposed to give Abel S. to the department at 9:00 or 9:30 a.m. According to Christopher C., he and his mother spoke to an attorney named Rooney four days before the removal, who told them "[i]f I were you, just don't let them take the baby, because if they take the baby, that's it." Rooney also said that the department was not supposed to take Abel S. without a court order, and that they should wait until a scheduled hearing on April 27 for the court to say that Abel S. had to go back to the department. Rooney indicated that Barbara C. and Christopher C. would not be in trouble because "he's backing [them] up." Barbara C.'s attorney at the hearing was not affiliated with Rooney, and Rooney had never appeared on behalf of Barbara C.
On April 4, Christopher C. and his mother left the house with Abel S. before the social worker could get there and went shopping. At no point between 9:00 a.m. and 8:00 p.m. were they at their house. It was their intent to keep Abel S. until the April 27 hearing. At about 4:30 p.m. that day, District Attorney Investigator Jason Wines called them, and the group agreed to meet at a Burger King at 8:30 p.m. so that Barbara C. could give Abel S. back to the department, which she did. Christopher C. tried to call the department that day, but nobody ever called him back.
Barbara C. canceled payment on the check she wrote to Rooney because he changed his previous advice when she talked to him on April 4 after she was contacted by the district attorney's office.
Barbara C.'s counsel asserted that she had met all the requirements for de facto parent status: she had had custody of the minor for a substantial period of time, a psychological bond between her and the minor had formed, she had unique knowledge about the minor, and she had attended a substantial number of court hearings. It would be advantageous to the minor to grant her de facto parent status because she and Christopher C. would remain involved and receive notice of all court proceedings involving the minor. In counsel's view, the hearing had gotten "off track," discussing subjects that were more relevant to placement.
The department's counsel replied that the knowledge Barbara C. had to offer was largely generic, considering the minor's young age; the extent of any psychological bond between Barbara C. and the minor was unknown; and she was present only at the court hearings that involved her as a foster parent, not at the detention hearing, the jurisdiction hearing, or the disposition hearing. On the other hand, she had failed to keep up with the minor's appointments, causing a two-month delay in the physical therapy and occupational therapy the minor needed.
The juvenile court asked the department's counsel whether a person could qualify for de facto parent status, then lose that designation by acting in a manner adverse to the child's best interests. Counsel agreed that that was possible. Moreover, Barbara C. was seeking de facto parent status in the belief that she was a prospective adoptive parent, while at the same time the biological parents were trying to reunify with the minor, which created an inappropriate tension in the case.
The minor's counsel did not oppose Barbara C.'s request. However, the biological father's counsel strongly opposed it, agreeing with the department's counsel that Barbara C.'s wishes were in tension with the parents and with the department, and adding that based on her activities on April 4, 2016, it would actually be detrimental to the minor to continue her involvement in the case.
The juvenile court ruled as follows:
"Court is going to rule that while they probably could have shown de facto status at the beginning, when they first filed this, the court is going to find that they have not kept the best interests of the child in mind as the case progressed.
"Certainly I think that foster mother was bonded with the child. She certainly was active as a role of the parent, providing the day-to-day care of the child. She had unique information; however, I think all of that was pushed to the side. And I am going to find that she lost that status as de facto parent . . . when she started missing appointments, and[/]or canceling the appointments.
"This is not somebody who is acting as the role of a parent, who misses an appointment because she's ill, and it has to be continued. We had three different doctor appointments, and[/]or Far Northern appointments that were not kept.
"And I think that her actions on April 4 are expressly contrary to what a parent would do. She put this child at risk by keeping the child away from the home when she knew that Children's Services was going to come out and remove the child. She put the child at tremendous risk.
"Once the sheriffs are involved, the District Attorney is involved, the potential for something horrible happening, including potential deadly confrontation with the police, is very scary to this court.
"While you may well have done this on the advice of an attorney, I think that advice, if in case that was the advice that you received, was very misplaced. It was not in the best interests of this child, and therefore any possibility that they could have been named as de facto parents was lost by the missed appointments, and the restriction they put the baby in by keeping the baby away from Children's Services, and the DA and the sheriffs, for over 12 hours, or close to 12 hours.
"Court will deny the application for de facto parent status."
DISCUSSION
Barbara C. contends the juvenile court abused its discretion by denying her petition because: (1) the court correctly found that she met the criteria for de facto parent status; and (2) her actions did not harm the minor and were not " 'fundamentally at odds' " with the role of a parent.
" '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).) If the juvenile court finds that a person meets this standard, the court may grant him or her standing to participate as a party to the proceeding, with the rights to be present at any hearing at which the status of the dependent child is at issue, to be represented by retained or appointed counsel, and to present evidence. (Cal. Rules of Court, rule 5.534(a).)
"Whether a person falls within the definition of a 'de facto parent' depends strongly on the particular individual seeking such status and the unique circumstances of the case. However, the courts have identified several factors relevant to the decision. Those considerations include whether (1) the child is 'psychologically bonded' to the adult; (2) the adult has assumed the role of a parent on a day-to[-]day basis for a substantial period of time; (3) the adult possesses [unique] information about the child . . . (4) the adult has regularly attended juvenile court hearings; and (5) a future proceeding may result in an order permanently foreclosing any future contact with the adult. [Citations.] . . . Because a court can only benefit from having all relevant information, a court should liberally grant de facto parent status." (In re Patricia L. (1992) 9 Cal.App.4th 61, 66-67, fns. omitted.)
"[T]he key to the privileged status of de facto parenthood is adherence to 'the role of parent,' both physical and psychological." (In re Kieshia E. (1993) 6 Cal.4th 68, 78.) If the would-be de facto parent has acted in a manner fundamentally inconsistent with the parental role, he or she forfeits the opportunity to attain the status of de facto parent. (Ibid.; accord, In re Bryan D. (2011) 199 Cal.App.4th 127, 142.) To inflict "serious and substantial harms" to a child is to act in such a manner. (In re Bryan D., at p. 143.) What constitutes serious and substantial harm depends on the facts of each case, but courts have found that failure to seek appropriate medical care for a child, refusal to cooperate with a social services agency, and attempting to hide a child from an agency to avoid removal from the home may be examples of such harm. (Ibid.; see In re Jacob E. (2004) 121 Cal.App.4th 909, 920; In re Michael R. (1998) 67 Cal.App.4th 150, 157-158.)
The juvenile court makes its findings as to de facto parenthood by a preponderance of the evidence, and we review its findings for abuse of discretion. (In re Leticia S. (2001) 92 Cal.App.4th 378, 381.) We will not find an abuse of discretion unless the court "has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination." (Ibid.) Here, the juvenile court's determination was not arbitrary, capricious, or patently absurd. On the contrary, it was amply supported by the evidence as to both grounds on which the court based its ruling.
First, the juvenile court impliedly found Mendez's testimony that Barbara C. repeatedly canceled the minor's medical appointments, then lied about doing so, and failed to follow up promptly on the Far Northern referral, more credible than Barbara C.'s contrary testimony. When reviewing for abuse of discretion, we must defer to the lower court's credibility findings. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
Barbara C. argues that her misconduct did not disqualify her for de facto parent status because it did not cause the minor any actual harm. We disagree. Postponing the physical therapy of a developmentally delayed infant's needs is prima facie harmful to the infant. In any event, Barbara C.'s failures to keep medical appointments and to follow up promptly on the Far Northern referral amounted to conduct inconsistent with the parental role, whether or not immediate resulting harm could be shown. (Cf. In re Kieshia E., supra, 6 Cal.4th at p. 78; In re Bryan D., supra, 199 Cal.App.4th at p. 142.)
But even if there were room for argument as to Barbara C.'s conduct before April 4, 2016, there is none as to her actions on and around that date.
Taking her testimony and that of Christopher C. on this issue at face value, it appears that they wrongly concluded from the moment Barbara C. received custody of the minor that she was certain to become the minor's adoptive parent. So believing, they disregarded any contrary advice, such as Mendez's statement on March 4, 2016, that the minor would not be adopted because one or the other biological parent would regain custody, or Mendez's repeated warnings that missing medical appointments and delaying the Far Northern assessment could be grounds for the minor's removal. When they received notice as of March 29, 2016, that Abel S. would be removed on April 4, they did not contact the department or any other responsible agency to inquire into the matter. Instead, in the misguided notion that if they could keep physical possession of the minor it would improve their chances to adopt him, they resolved to frustrate the department's attempt to remove him. When the removal date came, they acted on their resolution by absconding with the minor for 12 hours, leaving the department, the sheriff's deputies, and the district attorney's office in the dark about his whereabouts for most of that time. As the juvenile court found, Barbara C.'s conduct exposed the minor to great potential risk and was incompatible with the parental role. (See In re Michael R., supra, 67 Cal.App.4th at pp. 157-158.)
Though they claimed to have acted on the advice of attorney Rooney, they did not produce him as a witness or obtain a declaration from him. Thus, the juvenile court reasonably found that Barbara C. did not act in the best interest of the minor, regardless of the advice she purportedly received.
To the extent Barbara C. argues her conduct was excused because she relied on correct legal advice when deciding to retain custody of Abel S. instead of giving him to the department on April 4, we are still not persuaded. First, absent evidence to the contrary, the juvenile court was entitled to rely on Mendez's representations as to the legal requirements for a removal notice. Mendez testified Barbara C. was notified of Abel's removal on March 29 via phone message and that she did not believe this notice had to be done in writing. No evidence called this testimony into question. Second, both Barbara C. and Christopher C. acknowledged they were aware of the department's impending action several days before it occurred, they cannot claim lack of notice of Abel S.'s removal. Finally, Barbara C. did not attempt to file a grievance or contact the department in any way following notice of Abel S.'s removal, and thus exerted no effort to lawfully retain custody of him.
According to a "CDSS Manual" cited by Barbara C. in her opening brief, "absent immediate danger to the child or a waiver of notice signed by the foster parent at placement, the county cannot remove a child from a foster placement without giving a seven[-]day written notice." This manual was not before the juvenile court and is not properly before us because Barbara C. has not requested judicial notice of the manual or moved that this court take new evidence. (Evid. Code, § 459; Cal. Rules of Court, rule 8.252(c).) We do not consider purported evidence presented only in an appellate brief. (See In re K.P. (2009) 175 Cal.App.4th 1, 5.) In any event, the department reasonably believed the minor was in immediate danger based on Barbara C.'s repeated failure to make and keep medical appointments and to follow through promptly on the Far Northern referral. --------
For all of the above reasons, we conclude the juvenile court's order denying de facto status was well within the court's discretion.
DISPOSITION
The order denying de facto parent status is affirmed.
/s/_________
Robie, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Duarte, J.