Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. Nos. 77274, 77275
Jones, P.J.
Appellant Kassandra R. (mother) is the mother of two minor children, Adriana R., born in 1998, and Elizabeth R., born in 2007. Fernando P. is Adriana’s presumed father; Brian S. is Elizabeth’s presumed father (collectively, fathers).
In July 2007, the San Mateo County Human Services Agency (Agency) filed two petitions alleging mother failed to protect her children (Welf. & Inst. Code, § 300, subd. (b)). The juvenile court sustained the petitions and ordered the children to remain in mother’s care. Over the next year and a half, however, mother’s ability to care for the girls deteriorated further and the girls’ respective fathers expressed their desire to have custody.
Unless otherwise noted, all further statutory references are to the Welfare and Institutions Code.
At a disposition hearing in December 2008, the court placed Adriana and Elizabeth with their respective fathers. In addition, the court designated the case a family maintenance case and ordered family maintenance services for mother. The court also granted de facto parent status to Melinda D. (grandmother), the girls’ maternal grandmother, and allowed her to have visitation with both children. Finally, the court set a family maintenance review hearing for March 2009.
Mother appeals the December 2008 dispositional order. She contends the court erred by failing to articulate the standard of proof used when it placed the children with their respective fathers and by “refusing to identify the services offered to [her] as reunification services[.]” She also contends the March 2009 hearing should be deemed a status review hearing, not a family maintenance review hearing. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize the facts as germane to the issues raised on appeal.
Detention, Jurisdiction, and Disposition
Adriana was born in 1998. Mother gave birth to Elizabeth in May 2007. Both mother and Elizabeth tested positive for methamphetamine when Elizabeth was born. In July 2007, the Agency filed two petitions alleging mother had failed to protect Adriana and Elizabeth. (§ 300, subd. (b).) The petitions alleged Elizabeth tested positive for methamphetamine at birth and that mother’s substance abuse impaired her ability to supervise and care for her children. The petitions also alleged mother and her children did not have adequate housing. The court ordered the children to remain in mother’s care pending the jurisdiction hearing.
The Agency amended the petitions twice in September 2007. The amended petitions alleged mother: (1) had a physical altercation with grandmother in Adriana’s presence; (2) had been asked to leave the Family Crossroads Shelter Program for failing to comply with program rules; (3) tested positive for amphetamines and failed to attend substance abuse treatment; and (4) failed to establish appropriate and stable housing. The court detained Adriana and Elizabeth in foster care. The court also ordered supervised visits with mother and unsupervised visits with Fernando, Adriana’s father.
Following a combined jurisdiction and disposition hearing in November 2007, the court sustained the Agency’s second amended petitions and ordered the children to remain in mother’s care at a treatment facility. The court also ordered mother to participate in counseling and drug testing, and to undergo a mental health evaluation.
The Interim Review Hearing and the Family Maintenance Six-Month Hearing
As of the interim review hearing in February 2008, mother was participating in a residential treatment program. Fernando had completed a parenting class and his visits with Adriana’s were “going very well.” In April 2008, the court granted the Agency’s section 388 petition and ordered the children to remain in mother’s custody upon her completion of the residential treatment program. Brian, Elizabeth’s father, had been “acting in a paternal role by buying necessary supplies” for her, was “very interested in taking on a larger role in Elizabeth’s life... and he wanted to share physical and legal custody with” mother. At the family maintenance six-month review hearing in May 2008, the court ordered Adriana and Elizabeth to remain in mother’s custody and set a further six-month review hearing for November 2008.
The November 2008 Family Maintenance Hearing and the Agency’s Section 387 Petition
In a report prepared for the second family maintenance hearing, the Agency noted mother had moved without notifying the Agency, had stopped attending counseling, and was not participating in drug testing. The Agency also reported that both children were living with grandmother. According to the Agency’s report, Fernando had visited with Adriana “every other weekend” since Adriana “was a baby” and both he and Adriana seemed to “enjoy[ ] the time” together. Similarly, the Agency noted Brian had been visiting with Elizabeth since August 2008 and that she “enjoys the time with her father.” Finally, the Agency reported that Brian had requested additional visitation with Elizabeth. At the conclusion of the November family maintenance review hearing, the court ordered the Agency to file a section 387 petition for each child.
Section 387 provides in relevant part: “An order changing or modifying a previous order by removing a child from the physical custody of a parent... and directing placement in a foster home... shall be made only after noticed hearing upon a supplemental petition. [¶] The supplemental petition shall be filed by the social worker in the original matter and shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child....” (§ 387, subds. (a) & (b).)
The Agency complied and filed two section 387 petitions alleging mother’s “failure to comply with [court-ordered] services places the child and child’s sibling at risk of harm and neglect.” The petitions also alleged mother’s whereabouts were unknown, that she had a history of drug use, and that she had been diagnosed with depression and anxiety. The Agency recommended placing Adriana with a relative and placing Elizabeth with Brian, noting the children were visiting with their respective fathers every other weekend.
The court detained the children, placed them in grandmother’s home, and authorized Elizabeth to have overnight visits with Brian. Following a contested detention hearing, the court sustained the section 387 petitions, ordered the children detained with grandmother, and permitted the children to visit their respective fathers. The court set a disposition hearing for December 2008 and ordered the parties to attend mediation.
The Mediation and the December 2008 Disposition Hearing
Fernando, Brian, and grandmother attended a mediation the day before the disposition hearing. At the mediation, they agreed Fernando would have custody of Adriana and Brian would have custody of Elizabeth. The parties also agreed the girls would have visitation with grandmother from Tuesday through Thursday while Fernando and Brian were working, and on certain weekends.
In its disposition report, the Agency recommended placing Adriana with Fernando and Elizabeth with Brian. The Agency stated that Fernando and Brian “are non-offending parents, [are] actively engaged, and [are] participating in their” children’s lives. The Agency also reported that both men “appear to work cooperatively” with grandmother “to care for the children” and were “willing and able to care” for them. The Agency concluded placing the children with their respective fathers would not be detrimental to the children’s safety, protection, or well-being. Finally, the Agency recommended providing reunification services to mother and setting the case for an 18-month review hearing in March 2009.
At the disposition hearing, counsel for the children praised Fernando, Brian, and grandmother for agreeing on custody at the mediation. Counsel remarked that both girls were “really happy” about the custody arrangement and that it was “totally in the kids’ best interests.” Counsel asked the court to provide mother with family maintenance services rather than reunification services and to name grandmother as a de facto parent. In response, mother’s counsel expressed a concern “about calling this [a] F[amily] M[aintenance]” case but did not object to counsel for the children’s request regarding offering mother family maintenance services rather than reunification services.
The court incorporated the mediation agreement into its dispositional order. It placed Adriana with Fernando and Elizabeth with Brian, concluding the fathers were nonoffending parents and that there was “no detriment” to placing each girl with her respective father. At the hearing, the court stated, “mother will receive services. We will strike reunification. We will set [the case] for a family maintenance review; not [a family reunification] 18-month [review], but [a]... family maintenance, review” for March 2009. Lastly, the court granted de facto parent status to grandmother. In its written order, the court noted that the case was to proceed in “f[amily] m[aintenance] mode.”
DISCUSSION
The Court Did Not Err by Awarding Custody to the Girls’ Fathers Pursuant to Section 361.2
As discussed above, the court placed Adriana and Elizabeth with their respective fathers, concluding Fernando and Brian were noncustodial parents and that there would be “no detriment” to placing their respective children with them. Mother contends the court failed to apply the “clear and convincing standard of proof” required by section 361.2 when it awarded custody to fathers and that this error requires reversal. We disagree.
“The dependency statutory framework distinguishes between a parent with whom the child was residing at the time the section 300 petition was initiated ([a] custodial parent), and a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the provisions of section 300 ([a] noncustodial parent).” (In re V.F., (2007) 157 Cal.App.4th 962, 969 (V.F.), fn. omitted.) Section 361, subdivision (c) governs the child’s removal from the custodial parent. Section 361, subdivision (c) “‘does not... encompass the situation of the noncustodial parent.’” (V.F., supra, at p. 969.)
Section 361.2 “deals specifically with the removal of a child from a custodial parent” where — as here — there also is a noncustodial parent. (R.S. v. Superior Court (2007) 154 Cal.App.4th 1262, 1270.) When the court has ordered the removal of a child from the custodial parent under section 361, subdivision (c), the court must determine whether there is a noncustodial parent “who desires to assume custody of the child.” (§ 361.2, subd. (a); see also In re Marquis D. (1995) 38 Cal.App.4th 1813, 1820-1821.) “‘If that [noncustodial] parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child[.]’” (V.F., supra, 157 Cal.App.4th at p. 970, citing § 361.2, subd. (a).)
Mother concedes the court had removed the children from her pursuant to section 361, subdivision (c). She also concedes Fernando and Brian were noncustodial parents who requested custody and that, as a result, section 361.2 applies here. She contends, however, that the court was required to determine by clear and convincing evidence that placing Adriana with Fernando and Elizabeth with Brian would not be detrimental to the children before awarding custody. She is incorrect. If a noncustodial parent requests custody pursuant to section 361.2, the court must place the child with that parent unless the court determines “placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child[.]” (V.F., supra, 157 Cal.App.4th at p. 970, citing § 361.2, subd. (a).) This is so because the noncustodial “parent has a constitutionally protected interest in assuming physical custody, as well as a statutory right to do so, in the absence of clear and convincing evidence that the parent’s choices will be ‘detrimental to the safety, protection, or physical or emotional well-being of the child.’ [Citation.]” (In re Isayah C. (2004) 118 Cal.App.4th 684, 697 (Isayah C.), citing § 361.2, subd. (a).)
Pursuant to section 361, subdivision (c), the court had removed the children from mother’s custody after concluding, by clear and convincing evidence, that “[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s... physical custody.”
The court, therefore, is required to make a finding of detriment by clear and convincing evidence only where it declines to place the child with the noncustodial parent who desires custody. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426 [“A court’s ruling under section 361.2, subdivision (a) that a child should not be placed with a noncustodial, nonoffending parent requires a finding of detriment by clear and convincing evidence.” (Italics added.)]; see also In re John M. (2006) 141 Cal.App.4th 1564, 1569.)
Here, the court determined Fernando and Brian were noncustodial parents who “desire[d] to assume custody” of their respective children. (§ 361.2, subd. (a).) The court also determined there was “no detriment” to placing Adriana with Fernando and placing Elizabeth with Brian. Substantial evidence supports this conclusion. When the court awarded custody to Fernando and Brian, the court considered the girls’ sibling relationship, the fathers’ ability to provide a stable home life, and their demonstrated love for their children. (See Isayah C., supra, 118 Cal.App.4th at p. 700 [courts may consider sibling relationship when determining detriment pursuant to section 361.2].) As a result, there is simply no merit to mother’s argument that the court did not apply the “correct standard of proof” when it awarded custody of the children to their respective fathers, nor any merit to her claim that the court would have concluded placing the children with their respective fathers was detrimental if it “had applied the clear and convincing standard of proof....”
Mother Has Not Demonstrated the Court Abused Its Discretion by Declining to Order Reunification Services
As discussed above, the court awarded custody to the fathers and ordered family maintenance services for mother. Mother contends she was entitled to family reunification services, not family maintenance services.
When a court orders awards custody pursuant to section 361.2, it has the discretion to order reunification services for one or both parents. The court’s decision “to provide services” pursuant to section 361.2 “and to which parent is discretionary to the court because the child is not out of the home, but in placement with a parent. [Citation.]” (In re Gabriel L. (2009) 172 Cal.App.4th 644, 651; see also In re Erika W. (1994) 28 Cal.App.4th 470, 475-478 [lower court did not abuse its discretion by denying reunification services for previously custodial mother when child was placed with previously noncustodial father].)
“Services ordered for the former custodial parent from whom the child was removed may, for example, be intended by the court not to achieve reunification but instead to assist the parent in developing, maintaining or improving that parent’s relationship with the child; the court may have no intention of changing its order that the child live with the new custodial parent with whom he or she has now been placed.” (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2009 ed.) § 2.127[1][b][ii], p. 2-299.)
The court has several options. “First, it may simply terminate jurisdiction and give the other parent legal and physical custody of the child. (§ 361.2, subd. (b)(1).) Second, it may have the other parent assume custody of the child and ‘may order that reunification services be provided to the parent... from whom the child is being removed[.]’” (In re Janee W. (2006) 140 Cal.App.4th 1444, 1451 (Janee W.).) Third, the court “‘may order that services be provided solely to the parent who is assuming physical custody... to allow that parent to retain later custody without court supervision....’” (Id. at p. 1451.) Finally, the court may order that “‘services be provided to both parents, in which case the court shall determine, at review hearings held pursuant to Section 366, which parent, if either, shall have custody of the child.’ (§ 361.2, subd. (b)(3).)” (Janee W., supra, at p. 1451.)
As mother concedes, a court is not required to order reunification services when it grants custody to a noncustodial parent pursuant to section 361.2. (§ 361.2, subd. (b)(3).) Her argument is somewhat difficult to follow, but she seems to contend the court was required to offer her family reunification services because it “effectively” placed the children with grandmother rather than awarding custody to their respective fathers. The problem with this argument is that the court did not “effectively” place Adriana and Elizabeth with grandmother. In accordance with the agreement reached at the mediation, the court placed the girls with their respective fathers. It permitted grandmother to have visitation with both children from Tuesday to Thursday, when fathers were working, and on certain weekends. That grandmother cared for the children while fathers were working does not mean they were “effectively” placed with grandmother nor does it mean the court did not award custody to the girls’ respective fathers.
Mother’s reliance on Family Code section 3004 — which defines joint physical custody — does not support her argument that the court “effectively” placed the children with grandmother. Pursuant to Family Code section 3004, “‘[j]oint physical custody’ means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents....” Mother’s reliance on this statute is puzzling because the court did not order “joint custody” between the fathers and grandmother. It awarded custody to the fathers and visitation to grandmother.
Finally, the mere fact that the court granted de facto parent status to grandmother does not mean the court “effectively” placed the girls with her. 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); see also Seiser, supra, § 2.60A[1], p. 2-139, citing cases.) A de facto parent, however, “is not the same as a parent and the de facto parent is not given all the rights and preferences of a parent or guardian.” (Seiser, supra, § 2.60A[2][d], p. 2-144; see also In re Kieshia E. (1993) 6 Cal.4th 68, 77 (Kieshia E.).) For example, de facto parents do not have the right to reunification services or custody. (Kieshia E., supra, at p. 77.) Mother cites no authority to support her contention that the court placed the girls with grandmother simply because it granted de facto parent status to her.
Because the court properly placed the children with their respective fathers pursuant to section 361.2, mother has the burden to demonstrate the court abused its discretion when it declined to offer her reunification services. She has not done so. Under these circumstances, we agree with Erika W.’s conclusion that “[w]hen a child is placed in nonparental custody, reunification services are necessary to promote a possible return of the child to parental custody. However, when a child is placed in parental custody, this goal has already been met and therefore reunification services are not neccessary [sic].” (Erika W., supra, 28 Cal.App.4th at p. 478.)
Mother’s Argument Regarding the March 2009 Hearing Fails
Mother’s final complaint is the court should have designated the March 2009 hearing as an 18-month review hearing pursuant to section 366 rather than a family maintenance review hearing. To the extent we understand mother’s argument, we reject it. We conclude it is a reprise of her argument that the children were “effectively” placed with grandmother and, as a result, she was entitled to reunification services and an 18-month review hearing rather than a family maintenance hearing. For the reasons discussed above, this argument has no merit.
DISPOSITION
The juvenile court’s December 2008 dispositional order is affirmed.
We concur: Simons, J., Needham, J.