Opinion
F084519
01-13-2023
In re A.R., et al., Persons Coming Under the Juvenile Court Law. v. B.L. et al., Defendants and Appellants. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
Brenda Cantu Hook for Defendants and Appellants. Daniel C. Cederborg, County Counsel, and Carlie Flaugher, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Super. Ct. Nos. 21CEJ300403-1, 21CEJ300403-2, 21CEJ300403-3, 21CEJ300403-4 Todd Eilers, Commissioner.
Brenda Cantu Hook for Defendants and Appellants.
Daniel C. Cederborg, County Counsel, and Carlie Flaugher, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
MEEHAN, ACTING P. J.
Maternal grandparents M.L. (grandmother) and B.L. (grandfather) (collectively, the grandparents) appeal the juvenile court's order summarily denying their request for de facto parent status of their grandchildren A.B.R. (born August 2012), A.J.R. (born March 2015), E.R. (born August 2018), and A.R. (born July 2021) (collectively, the children). On appeal, the grandparents contend the juvenile court's order denying their request must be reversed and the matter remanded so that the court can conduct a hearing on their request. We reverse the court's orders denying de facto parent status and remand.
FACTUAL AND PROCEDURAL BACKGROUND
I. Voluntary Family Maintenance
A. First Referral
In July 2021, the Fresno County Department of Social Services (the department) received a referral on behalf of the children alleging general neglect by T.L. (mother) after she tested positive for methamphetamine, amphetamine, and marijuana at A.R.'s birth. After leaving the hospital, mother went to stay at the grandparents' house. Mother reported she was having problems with A.J.'s father and had a "weak moment," and had not taken her mental health medication for over a year. She denied having a drug problem, but was open to receiving services and wanted help. The department made a temporary plan for the children until a team decisionmaking meeting could be held, which consisted of mother leaving the grandparents' home. Grandmother expressed frustration. She stated their home was the only home the children knew. She said mother "'fested up'" about her drug use and A.R. was "not hooked to any substances."
The children's presumed father is G.R. because he and mother were married at the time of their births. However, mother reported D.S. is the father of E.R. and C.G. is the father of A.R.; therefore, the department considered them alleged fathers.
At the team decisionmaking meeting, the department discussed mother's substance abuse and mental health problems with mother and the grandparents. Mother reported she began using methamphetamine as a teenager and used on and off thereafter.
Grandmother became aware of mother's drug use after A.R.'s birth. Mother had been diagnosed with bipolar disorder and postpartum depression after A.J.R.'s birth. Grandfather felt she needed help with her mental health problems. The grandparents expressed desire to help. The family accepted voluntary family maintenance services and the children were placed in a safety plan with the grandparents. They agreed they would not allow mother to have unsupervised contact with the children until the department deemed appropriate.
In August 2021, the department held a staffing meeting after mother tested positive for methamphetamine again. Mother denied drug use. She had missed several drug tests and the team discussed how they could help her stay compliant with testing. Grandmother noted that "when you throw a mentally ill person on the streets, the first thing they are going to want to do is use." She said the children were not being abused, were "perfectly safe" in her care, and were with her 90 percent of the time. The social worker reminded grandmother that mother was allowed to be around the children as long as it was supervised and had been testing negative for drugs. However, now that she tested positive, mother would need to leave the home. Grandmother became defensive and did not want to hear what the social worker had to say.
Later that month, the social worker called grandmother to ask about mother. Grandmother reported mother was "up and down." The social worker informed her that because mother was not drug testing, mother would need to be supervised around the children. Grandmother said she was taking care of the children and "did not want to hear it all again," but agreed with the social worker. Mother was reportedly living outside of the grandparents' home at the time.
B. Second Referral
In September 2021, the department received a referral alleging grandmother had been allowing mother to have unsupervised contact with the children. The reporting party stated that C.G. was recently at the home with mother for four days and they would hide from the social worker during visits. It was alleged mother had A.R. with her "'nonstop'" and sent C.G. a text message stating she could not take care of him. C.G. allegedly had text messages and photographs showing mother was still using methamphetamine and when C.G. tried to leave the home, mother left A.R. alone in the house and attempted to run C.G. over with her car. Law enforcement responded to the home and grandmother took A.R. No charges were pressed, and C.G. left.
A social worker went to the grandparents' home to investigate the referral. Grandmother appeared nervous. The social worker asked if mother was there. Grandmother said that she was, but was only "grabbing a few things." The social worker spoke to mother and asked why she was at the grandparents' house when she was not supposed to be. Mother said she was "grabbing a few things" and had not been there long. Mother appeared agitated and denied she had been caring for the children. She said the children were always with grandmother. The social worker asked mother about the incident with C.G. Mother denied the allegations, but admitted she was still using methamphetamine. The social worker reminded her she was not supposed to be around the children until she tested negative for all substances. Mother said she understood. The referral was ultimately deemed inconclusive.
C. Third Referral
In November 2021, a social worker went to grandmother's house after mother tested positive for methamphetamine again. The social worker informed grandmother about the positive test result. The social worker was concerned about grandmother's inability to tell when mother was under the influence. Grandmother said that prior to mother's mental health diagnosis she could "definitely tell," but not after her diagnosis. She reported she had not seen mother be manic in weeks and did not think mother was under the influence. The social worker asked how she felt knowing mother was putting the children's safety at risk. Grandmother said all she cared about was the children's safety and she knew they were safe because they were with her all the time. Although mother was around the children daily, grandmother said it was always supervised. The social worker told grandmother it was important that mother not come around the children because she could not tell when mother was under the influence. The social worker informed her that if mother tested positive again, she would have to leave the home. Grandmother responded, "'Fine then she'll leave, I just care about the kids.'"
Thereafter, the department received another referral after A.J.R. reported mother hit him with a phone that left him with a mark. A.J.R. told a police officer that mother dropped a phone on him and caused the mark. The officer and social worker initially decided to place the children on a Welfare and Institutions Code section 300 hold, but the officer changed his mind after speaking to grandmother, who reported she was the one who accidentally hit A.J.R. with the phone. The officer determined there was not enough evidence to place the children on a section 300 hold.
All further statutory references are to the Welfare and Institutions Code.
The following day, a social worker spoke to A.J.R. at school to ask about the incident. She had a difficult time understanding him due to his mask and speech impairment. He reported mother hit him with a phone and began cursing afterwards. He said the incident happened at mother's home while grandmother was at work. E.R. was also there. The social worker asked him how he felt about returning to mother's home and he said he did not feel good about going with her because she sometimes hit him, but he did feel good returning to grandmother's care. The social worker also spoke to A.B.R., who gave a different version of events, stating A.B.R. fell off the couch and landed on his face. However, she did say mother was present. She reported she felt safe at the grandparents' home and also felt safe when mother was around.
Mother's home appears to be on the same property as the grandparents' home.
The social worker next spoke to grandmother and mother, who also provided two very different stories as to how A.J.R. was injured. The social worker informed them that mother tested positive for drugs again and advised them that due to mother's continued drug use, mother would have to leave the home. The social worker told grandmother she did not seem concerned about mother's drug use while caring for the children and said mother could not visit the home again until she tested negative for drugs. Mother was upset and said she needed to call someone because "she felt like using."
Three days later, the department held a team decisionmaking meeting as a result of the recent events. The team shared concerns over mother's continued drug use and A.J.R.'s injury. Grandmother reported mother was no longer in the home and she was now taking the matter as seriously as possible. She felt mother had been manipulating her and now communicated with her through grandfather and maternal uncle. The social worker did not feel it was appropriate or safe to continue voluntary family services because mother continued to use drugs and grandmother had minimized the substance use. Grandmother admitted she had minimized mother's drug use. She said mother had been neglectful toward the children, but never abusive. Grandmother recognized it was her fault and said mother should have left the home months ago. The social worker pointed out there had been two referrals already while on voluntary family maintenance and both were due to grandmother's lack of supervision. The parties were informed the department would be filing a petition on behalf of the children and requesting a protective custody warrant. The children were allowed to stay with grandmother until the protective custody warrant was signed.
II. Petition and Detention
On November 12, 2021, the department filed a petition pursuant to section 300, subdivisions (a) and (b), on behalf of the children against mother.
The detention report stated the children were placed together in a licensed foster home. The department reported they could not be returned to grandmother because she "continued to allow [mother] to have contact with the children despite her drug use and untreated mental health issues." The grandparents were provided with information about resource family approval orientation to begin the placement process.
On November 17, 2021, at the detention hearing, the juvenile court ordered the children detained from mother, and ordered supervised visits and reunification services for her.
III. Jurisdiction and Disposition
The jurisdiction and disposition report indicated the children were residing in two different licensed foster homes. A.B.R., A.J.R., and E.R. were in one home, and A.R. was in a separate home. Mother had begun participating in reunification services and the prognosis for successful reunification was good.
On January 3, 2022, the juvenile court held a combined jurisdiction and disposition hearing. Mother was present. The fathers' whereabouts were unknown. Mother requested the children be placed with the grandparents. Minors' counsel noted there was some concern about the grandparents' ability to protect the children, but because they now understood the gravity of the situation, he wanted the department to continue to consider them for possible placement. The court asked that updated discovery regarding placement with the grandparents be provided by the following month. The court found the allegations in the petition true. The children were declared dependents of the court and were ordered placed in a licensed foster home. Mother was ordered to participate in reunification services and supervised visits. The fathers were not provided with reunification services.
IV. De Facto Parent Request
On May 20, 2022, the grandparents filed de facto parent request forms (Judicial Council Forms, form JV-295), de facto parent statements (form JV-296 (JV-296)), "POINTS AND AUTHORITIES IN SUPPORT OF COURT GRANTING DE FACTO PARENT STATUS ...," and "POINTS AND AUTHORITIES IN SUPPORT OF PROPOSED DEFACTO [sic] PARENTS STANDING AND RIGHT TO PARTICIPATE AS A PARTY IN ALL HEARINGS ..." on behalf of the children. The JV-296 was signed under penalty of perjury by both grandparents and attached a declaration, a certificate of resource family approval orientation for grandfather, three letters of support from the grandparents' work supervisors and coworkers, and pictures of the children.
Further reference to forms are to Judicial Council Forms.
The grandparents' opening brief notes that JV-296 forms were filed for each child, but that they were not all included in the clerk's transcript. Indeed, the clerk's transcript only includes a JV-296 form for A.B.R.
The JV-296 indicated A.B.R. was nine years old and lived with the grandparents from birth to November 2021, and again beginning in May 2022. They spent time with her daily. The grandparents noted they had not attended any court hearings because they were told they could not do so. Their declaration stated that if called to testify, they would testify that they wished to participate in proceedings, present evidence, and crossexamine witnesses if necessary. Their grandchildren were very close to them and had lived with them since birth. They celebrated every holiday and birthday with them. They raised them and took them to school, soccer, cooked and cleaned for them, and bought them school clothes. They took them to school events, the fair, the zoo, movies, and trips to the coast, mountains, and camping. They set routines and reasonable expectations for them. The children felt safe with them and trusted them, and they felt the grandparents' home was their home. The grandparents provided structure and love, including hugs and one-on-one time. The children had their own bedroom with their own toys and had a quiet place for naps. The grandparents attended doctor and dental appointments. The children loved to sit with them to watch movies or read books, and they loved to help around the house.
Special information about the children included that A.B.R. wears glasses, is a 4.0 student, is shy, is a "mother hen" with the siblings, and loves to help cook. A.J.B. was having issues with "this separation," says he is a "bad boy," has asthma and allergies, loves the "Legend of Zelda." E.R. has a bubbly and bright personality, is outgoing, loves to sing and talk, is "grandma's girl," and loves to snuggle on the couch. A.R. is "cutting his teeth," is chunky, is crawling and standing, he is not fussy, likes to be held, likes the grandparents to sit on the floor with him, and responds to people with giggles and laughter.
The grandparents' declaration further stated they understood it was going to be a long and arduous road and they were committed to "seeing this through all the way (no matter what it takes)." They promised to be diligent and work as a team with the medical and psychological professionals. The grandparents wished to adopt the children if they could not reunify with their parents or, in the alternative, provide a permanent plan of guardianship. They had completed orientation and fingerprinting for family resource approval and were working on finishing up the rest of the requirements as fast as they could.
On May 26, 2022, the juvenile court denied the grandparents' requests for de facto parent status of the children without a hearing.
On June 16, 2022, the grandparents filed a notice of appeal.
DISCUSSION
I. Applicable Law
A de facto parent is "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).) De facto parent status "provides a nonbiological parent who has achieved a close and continuing relationship with a child the right to appear as a party, to be represented by counsel, and present evidence at dispositional hearings. Absent such status, very important persons in the minor's life would have no vehicle for 'assert[ing] and protect[ing] their own interest in the companionship, care, custody and management of the child' [citation] and the court could be deprived of critical information relating to the child's best interests." (In re Patricia L. (1992) 9 Cal.App.4th 61, 66 (Patricia L.).)
"The decision to grant de facto parent status depends on an assessment of the particular individual and the facts of the case." (In re Leticia S. (2001) 92 Cal.App.4th 378, 381.) "The factors courts generally consider for determining de facto parent status 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 information about the child unique from other participants in the process; (4) the adult has regularly attended juvenile court hearings; and (5) a future proceeding may result in an order permanently foreclosing any future contact [between the adult and the child.]"'" (In re Justin O. (2020) 45 Cal.App.5th 1006, 1015.) "If some or all of these factors apply, it is immaterial whether the adult was the 'child's current or immediately succeeding custodian.' [Citations.] Because a court can only benefit from having all relevant information, a court should liberally grant de facto parent status." (Patricia L., supra, 9 Cal.App.4th at p. 67.)
"A person requesting de facto parent status has the burden to show by a preponderance of the evidence he or she qualifies for that status." (In re Abigail L. (2022) 75 Cal.App.5th 169, 178.) "The denial of a petition for de facto parent status is reviewed for abuse of discretion. [Citation.] 'In most cases, the lower court does not abuse its discretion if substantial evidence supports its determination to grant or deny de facto parent status.'" (In re Jacob E. (2004) 121 Cal.App.4th 909, 919 (Jacob E.); accord, In re Justin O., supra, 45 Cal.App.5th at p. 1015.)
The grandparents request we review this appeal de novo or, in the alternative, for abuse of discretion. In In re R.J. (2008) 164 Cal.App.4th 219 (R.J.), the court rejected the application of de novo review when a request for de facto parent status is summarily denied-"'[de novo] standard does not take sufficient account of the lower court's function in ruling on the petition. Because the inquiry is by nature dependent upon factual determinations, including resolution of disputed facts and credibility, we believe appellate review should be by a deferential abuse-of-discretion standard.'" (Id. at p. 224, fn. 2, quoting In re Michael R. (1998) 67 Cal.App.4th 150, 156 (Michael R.).) Overall, courts have commonly declined to apply de novo review. (R.J., supra, at p. 224, fn. 2.)
II. Analysis
As a preliminary matter, we address the grandparents' contention that they were entitled to a hearing on their de facto parent status request because "they meet all the elements of being granted defacto [sic] [p]arent [s]tatus." The grandparents fail to cite to any authority in support of their proposition, nor do we find any. In R.J., supra, 164 Cal.App.4th at pages 223-224, the appellate court considered whether "a party requesting de facto parent status is entitled to a hearing upon making a 'prima facie showing.'" Similarly there, the court failed to identify supporting authority, but concluded that, regardless, the lower court had not abused its discretion by summarily denying the grandmother's request for de facto parent status without a hearing because she had not made a prima facie showing. (Id. at pp. 224-225.)
"A party has not made a prima facie showing unless the facts alleged, if supported by evidence credited at the hearing, would sustain a favorable decision on the request. [Citation.] Whether the showing is sufficient to require an evidentiary hearing is a matter committed to the broad discretion of the juvenile court, whose decision may be overturned only if it amounts to a manifest abuse of that discretion." (R.J., supra, 164 Cal.App.4th at p. 224, fn. omitted.) Here, if the facts alleged by the grandparents in their requests for de facto parent status are supported by evidence credited at a hearing, the facts would sustain a favorable decision. Consistent with the reasoning in R.J., for reasons explained below, we conclude the juvenile court abused its discretion in denying the grandparents' request without a hearing.
As previously mentioned, in determining if de facto parent status applies, the courts generally consider "'"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 information about the child unique from other participants in the process; (4) the adult has regularly attended juvenile court hearings; and (5) a future proceeding may result in an order permanently foreclosing any future contact [between the adult and the child.]"'" (In re Justin O., supra, 45 Cal.App.5th at p. 1015.)
In the present case, the grandparents asserted in their supporting documents that the children have lived with them since their births, they spend time with them daily, and they are active in the children's lives. They attend medical and dental appointments, take them to school, and take them to their sports activities and on various trips. They cook and clean for them and spend every holiday and birthday with them. They said the children "love" spending time with them, including sitting with them to watch movies and read books, and feel safe in their home. Indeed, A.B.R. reported she felt safe at the grandparents' house and A.J.R. felt "good" about returning to the grandparents' house after the incident in which mother hit him with a phone. In their declaration, they listed unique information about the children. Although the grandparents had not attended any hearings, they claim they were "told they could not attend." Their declaration states they "wish to participate in proceedings, to present evidence, and cross-examine witnesses if it becomes necessary."
By virtue of taking care of the children on a day-to-day basis, the grandparents would undoubtedly possess unique information about them. (See In re Ashley P. (1998) 62 Cal.App.4th 23, 27 ["[a]s their caretaker, [the] appellant had special information about the children"]; In re Vincent C. (1997) 53 Cal.App.4th 1347, 1357 ["it is because of [the grandmother's] extended involvement and familiarity with the children that her input regarding their future care is so important to the children, not just to [her]"]; In re B.G. (1974) 11 Cal.3d 679, 693 [explaining that "the views of such persons who have experienced close day-to-day contact with the child deserve consideration"].) We note that "[i]f the information presented by the de facto parent is not helpful, the court need not give it much weight in the decisionmaking process." (Patricia L., supra, 9 Cal.App.4th at p. 67.)
The department argues that "even if the above factors are considered liberally to weigh in favor of de facto status, the court's denial of de facto status is supported because the [grandparents] placed the [c]hildren at risk." We disagree that the grandparents placed the children at the level of risk necessary to deny them de facto parent status.
"[A] person who otherwise qualifies for de facto parent status may become ineligible by acting in a manner that is fundamentally inconsistent with the role of a parent." (In re Bryan D. (2011) 199 Cal.App.4th 127, 142 (Bryan D.).) In In re Kieshia E. (1993) 6 Cal.4th 68, 78 (Kieshia E.), the Supreme Court explained that "any adult who causes the onset of dependency proceedings by committing sexual or other serious physical abuse upon a child in his charge has betrayed and abandoned, not embraced, 'the role of parent.'" (Italics added.) However, "Subsequent cases have extended Kiesha E.'s analysis to conduct other than sexual or physical abuse, but these cases still concern serious and substantial harms to the children involved." (Bryan D., supra, at p. 143, italics added.)
"For example, in ... Michael R.[, supra,] 67 Cal.App.4th [at pp.] 157-158, the grandmother allowed her grandchildren's physically abusive father unsupervised access to them, she refused to acknowledge that the father was abusive, and she took the children out of state and hid them to avoid a social services removal." (Bryan D., supra, 199 Cal.App.4th at p. 143.) In Jacob E., supra, 121 Cal.App.4th at pages 920-921, the juvenile court denied the grandmother's de facto parent request because she neglected the child's medical and dental care, failed to enroll him in school, hit him with a stick, exposed him to domestic violence, and was uncooperative with social services. In In re Merrick V. (2004) 122 Cal.App.4th 235, 242, "the grandmother was denied de facto parent status after she left her grandchildren with their mother, who was a known drug addict. Two of the children-two-year-old twins-were later discovered wandering in the street, wearing dirty diapers, and they tested positive for illegal drugs. [Citation.] A 12 year old was also left without any guidance or supervision except during the time he was in school, and his school attendance was inconsistent." (Bryan D., supra, 199 Cal.App.4th at p. 143.)
In contrast to the cases above, the grandparents' conduct here is not equivalent to "sexual or other serious physical abuse" (Kieshia E., supra, 6 Cal.4th at p. 78) or did not result in "serious and substantial harm[]" (Bryan D., supra, 199 Cal.App.4th at p. 143). Although the grandparents initially allowed unsupervised contact with mother and A.J.R. sustained a bump after mother hit him with a phone, it was not the grandparents who caused his injury. (See Jacob E., supra, 121 Cal.App.4th at p. 920 [grandmother would hit grandchild with a stick and exposed him to domestic violence].) Moreover, by the time the children were removed from their care, the grandparents had recognized the significance of mother's issues. Grandmother took responsibility for not asking mother to leave sooner and admitted she minimized mother's drug use. She reported mother was no longer in the home and her keys had been taken away. Minors' counsel acknowledged that the grandparents had recognized the gravity of the situation and advocated that they continued to be considered for placement. (See Michael R., supra, 67 Cal.App.4th at pp. 157-158 [grandmother was in constant denial about father "beat [ing]" the grandchild and fled the state with the grandchildren to continue father's unrestricted access to the children].) When the children were removed, the grandparents quickly began the resource family approval process. Evidently, the department's concerns about the grandparents' ability to protect the children had resolved because the children were returned to their care after a few months. (See Bryan D., supra, at pp. 146-147, fn. omitted ["The lack of such substantial evidence [that the grandmother had betrayed or abandoned the parental role] is implicitly acknowledged in the juvenile court's order that [the department] make efforts to process a waiver for [the] grandmother so that she could be considered as a relative for placement for [the child."].) But even after the incident in which mother hit A.J.R. with the phone, the department left the children in the grandparents' care for three days until a team decisionmaking meeting was held and they determined they would be placing the children in protective custody. The department then told grandmother the children could stay with her until the protective custody warrant was signed. Thus, while the grandparents undoubtedly demonstrated poor judgment during the voluntary family maintenance period, their failures did not amount to an abandonment of the parental role.
Accordingly, under the circumstances of this case, we conclude the juvenile court abused its discretion in denying the grandparents' request without a hearing because substantial evidence did not support its determination to deny their request. (Jacob E., supra, 121 Cal.App.4th at p. 919 ["'In most cases, the lower court does not abuse its discretion if substantial evidence supports its determination to grant or deny de facto parent status.'"].)
DISPOSITION
The juvenile court's orders denying the grandparents de facto parent status is reversed and the matter is remanded with directions to conduct a hearing on their request.
WE CONCUR: SNAUFFER, J. DeSANTOS, J.