Opinion
H026065.
11-21-2003
In re ANTHONY G., a Person Coming Under the Juvenile Court Law. DEPARTMENT OF FAMILY AND CHILDRENS SERVICES, Plaintiff and Respondent, v. CELIA G., Defendant and Appellant.
Proceedings Below
Anthony was born addicted to methadone in January 2002. After a period of hospitalization, Anthony resided with his three siblings, who had been living with their mother who was receiving family maintenance services and appellant, their paternal grandmother. On November 16, 2002, Anthony and his brother Angel were placed in protective custody "because they were passengers in the car with their parents and both the mother and the father were under the influence of heroin." The children "were dirty, wearing adult diapers, and not in car seats." The same day, during a probation search of the home, the police found that it was dirty and that several hypodermic syringes were within reach of the children. Anthonys two other siblings were taken into protective custody.
On January 28, 2003, appellant filed an application for de facto parent status. On February 10, 2003, the juvenile court sustained dependency petitions filed on behalf of Anthony and his three siblings. The court noted, "drugs [were] available in the room where the children lived [and] the bedroom where the children lived was dark and filthy." Reunification services were denied for both parents.
The court conducted a hearing on appellants application April 17, 2003. Appellants trial counsel noted that for Anthonys three older siblings, appellant "was the sole custodian-parent due to placement by this court from October of 2000 through October of 2001." Counsel reiterated the information in the attachments to appellants petition for de facto parent status that when the children were in her home they appeared well cared for and clean and that appellant was their primary care giver. The declarations of various medical, education and social services professionals supported this claim. A case manager for the Department of Family and Childrens Services at the Nuestra Casa Family Resource Center declared that in the course of several months of weekly visits he saw no signs of drug usage in the home and that the room where the mother slept with the children appeared "clean and well kept." Counsel argued that appellant "essentially co-parented with the mother all four children and would assume direct responsibility for the three oldest children so that the mother could care for the infant or they would do the reverse[.]"
The court denied appellants motion for de facto parent status in a written decision filed May 21, 2003. The court noted that a Welfare and Institutions Code section 366.26 hearing was set for June 6, 2003 to terminate parental rights and that "[p]lacement with the paternal grandmother was not recommended by the investigating social worker as the children had been residing in her home while the mother had resumed her drug use and the grandmother had not taken steps to protect them." The court observed that, "although the grandmother appears to care for the children, she was unable to exercise the care expected of a person acting in the role of parent and protect them when their mother and father resumed using drugs."
Discussion
Appellant contends the court erred in denying her de facto parent status. California Rules of Court, rule 1401(a)(8) describes a de facto parent as "a person who has been found by the court to have assumed, on a day-to-day basis, the role of parent, fulfilling both the childs physical and psychological needs for care and affection, and who has assumed that role for a substantial period." We review a decision on a motion for de facto parent status under the abuse of discretion standard, to determine if it was arbitrary, capricious or patently absurd. (In re Leticia S. (2001) 92 Cal.App.4th 378, 381.)
Here, denial of the motion was a reasonable exercise of the trial courts discretion. While there is evidence of appellants love for the children and her participation in their upbringing, there is also evidence that while providing a home and care for Anthony and his siblings appellant either chose to ignore or was oblivious to the ongoing drug usage in her home. We note that Anthonys trial counsel opposed the motion, concurring in the Agencys argument that "grandmother co-parented these children with drug addicted parents." InIn re Michael R. (1998) 67 Cal.App.4th 150, the court said a person may be denied de facto parent status if the person has inflicted substantial harm on the child by engaging in conduct that is fundamentally at odds with the role of parent. (Id. at p. 158.) Here, appellants failure to control the conduct of the other adults in her home was fundamentally at odds with the parental role as was permitting the parents, while under the influence of heroin, to drive around with the dirty, 10-month-old baby Anthony unrestrained in the car. So too was allowing the children to live in filthy surroundings in proximity to drug paraphernalia. On this record, there was nothing arbitrary or capricious about the juvenile courts decision. Rather, it was well within the bounds of reason, and a proper exercise of discretion that must be affirmed. Appellant argues here evidence that she contends established her de facto parent status, and her efforts on behalf of her grandchildren are certainly commendable. However, that she takes a view of the evidence different from that of the trial court does not demonstrate an abuse of discretion.
Appellant contends, "The Countys failure to comply with [Welfare and Institutions Code section] 361.3 prejudiced the appellant and denied her an opportunity to be heard." We review a juvenile courts custody placement orders under the abuse of discretion standard of review; the trial court is given wide discretion and its determination will not be disturbed absent a "manifest showing of abuse." (In re Sarah S. (1996) 43 Cal.App.4th 274, 286; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) We consider all of the evidence, draw all reasonable inferences, and resolve all evidentiary conflicts, in a light most favorable to the trial courts decision; the test is whether any rational trier of fact could conclude the placement order promoted the best interests of the child. (In re Robert L., supra, 21 Cal.App.4th at p. 1065.)
Welfare and Institutions Code section 361.3 provides for placement of dependent children, including the relative placement preference. Section 361.3, subdivision (a) gives "preferential consideration" to a request by a relative for placement of the child with that relative. " Preferential consideration means that the relative seeking placement shall be the first placement to be considered and investigated." (Id. at subd. (c)(1).) One factor the court may consider is the ability of the relative to "[p]rotect the child from his or her parents." (Welf. & Inst. Code, § 361.3, subd. (a)(7)(D).)
As Anthonys grandmother, Ms. G. was eligible for preferential consideration as a relative placement under Welfare and Institutions Code section 361.3. However, because Anthony was removed from his parents custody while residing with her, placement with her would in effect be returning Anthony to the environment from which he had just been removed. The fact that Anthonys mother resumed drug usage while living with appellant, that appellant appeared unaware of the drug paraphernalia in her home, and that the childrens room was found by the police to be filthy support the courts determination. Given the deferential standard of review, we cannot say the courts order was an abuse of its discretion.
The courts decision is consistent with Welfare and Institutions Code section 361.2, which gives preferential placement of a child removed from a parent under section 361 to "a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300." (Italics added.) It is significant that Anthony was living with appellant at the time of the events and conditions that triggered these dependency proceedings.
Appellant argues generally that these proceedings denied her due process. We observe that they were conducted in accordance with the provisions of Welfare and Institutions Code section 300 et seq. We also find no support in this record for appellants argument that "respondents continually manipulated actions and proceedings in order to obtain their desired results, ADOPTION, in order to receive the maximum federal adoption incentive bonuses."
Disposition
The orders appealed from are affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.