Opinion
H025093.
7-15-2003
In re DAVID T., a Person Coming Under the Juvenile Court Law. SANTA CRUZ HUMAN RESOURCES AGENCY, Plaintiff and Respondent, v. ALFREDO A., Jr. et al., Defendants and Appellants.
Alfredo A. and Carol J. (appellants), the de facto parents of the child David T., appeal from a September 20, 2002 juvenile court order dismissing the child as a dependent child of the court, awarding the childs mother legal and physical custody of the child, and terminating the de facto parent status of appellants. Because we find no error or abuse of discretion, we will affirm.
BACKGROUND
This is appellants third appeal in this dependency proceeding. On our own motion, we take judicial notice of the records in the prior appeals: H024200, In re David T., and H024514, In re David T. We also take judicial notice of the record in H024785, In re David T., a related appeal by the childs siblings that was voluntarily dismissed. Much of our discussion of the background of this appeal is taken from the records in these prior appeals.
The child was placed into protective custody on June 29, 2000, due to his mothers history of substance abuse and her neglect and abandonment of four other children. On July 6, 2000, the juvenile court ordered the child detained and placed with his maternal aunt, with supervised visitation for mother. Following a contested jurisdictional hearing, on September 1, 2000, the court sustained a Welfare and Institutions Code section 300 petition filed by the Santa Cruz County Human Resources Agency (the Agency) pursuant to subdivision (j) [abuse of sibling]. On September 8, 2000, the court declared the child a dependent child of the court and ordered out-of-home placement with reunification services for mother. A case plan was submitted and filed that day.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
On November 1, 2000, appellants filed a petition seeking de facto parent status as to the child, who had been placed with them on September 7. Alfredo A. is the childs maternal uncle. After a contested hearing on November 27, 2000, the juvenile court granted the petition. At the six-month review hearing on March 9, 2001, the court continued the child as a dependent child of the court and continued services for mother.
A contested 12-month review hearing began on November 29, 2001, and continued to December 20, 2001. After hearing testimony and argument from the parties, the court asked the parties to brief the issue of what the court had the power to do if adequate services had not been offered mother during the past six months. The court also ordered that visitation be increased to three unsupervised four-hour sessions per week.
Following the filing of briefs by the parties, a hearing was held on January 10, 2002. The social worker testified and the court heard further argument by the parties. The court found that reasonable services had been offered mother, and that the social workers previous reluctance to accelerate the visitation plan was reasonable. Nevertheless, the court believed that, given the facts of the case, the child should be returned to mother. The court found that an external factor had prevented mother from participating in her plan. The court told mother that it would give her two and one-half to three more months to complete her case plan, and that she would not be given another chance. At a hearing on January 16, the court signed a formal order on the contested review. The order states in part that, on the courts own motion under section 352, the 18-month review hearing was continued to March 22, 2002, and that the continuance was not contrary to the childs interests. The order further states that the court found good cause for the continuance. The order included a detailed unsupervised visitation schedule.
On March 22, 2002, the Agency presented a case plan and visitation schedule, and recommended that the court return the child to his mother with formal family maintenance orders. Counsel for the child requested that the childs visits with the grandparents be supervised and that visits with his siblings continue to be twice weekly. Mother agreed with the childs requests. Appellants stated that they were opposed to the Agencys plan of having the child live with mother, and requested a stay of any change of placement. Appellants also requested additional visitation than that proposed by the Agency. The court ordered the child returned to mother with family maintenance services and agreed to allow sibling visits of one hour, twice a week, and appellants visits totaling eight hours per week. The courts formal order was filed March 26, 2002.
On April 26, 2002, an interim hearing was held for review of visitation. The Agency and counsel for de facto parents advised the court that the child was back with his mother and that things were going very well. The childs mother and appellants were in counseling and making good progress. On June 27, 2002, another review hearing was held on visitation. The childs court appointed special advocate (CASA) advised the court that the child was doing very well and that mother was doing a very good job providing for the child. Counsel for mother requested that the visitation schedule for appellants be reduced and that visits occur with the childs siblings on a Saturday. All parties addressed the issue. The court then ordered visitation between the child and appellants on Saturday, July 6, 2002, be terminated as a cooling-off period and to resume on Saturday, July 13, 2002, as previously ordered by the court. The court also ordered visitation between the child and the childs siblings be a minimum of one two-hour visit per week, every Tuesday.
On August 6, 2002, counsel for two of the childs siblings filed a section 388 petition seeking increased visits with the child. The court set the matter "for setting only" on September 6. On September 6, the Agency filed a status review report recommending that the child be dismissed as a dependent child of the court as mother had successfully completed 18 months of reunification services and six months of family maintenance services. The court denied the siblings section 388 petition on its face, finding that the petition failed to show how the requested modification would promote the best interests of the child. The matter was continued to September 20.
On September 19, the siblings filed a memorandum opposing the visitation recommendation in the Agencys September 6 report. At the same time, they filed a motion for a siblings visitation exit order. At the September 20 hearing, counsel for the Agency argued that it was in the best interests of the child to terminate juvenile court jurisdiction, to give the childs mother custody of the child, and to give mother responsibility and the right to make visitation decisions for the child. The childs CASA agreed with counsel for the Agency that there was no need for a court order regarding sibling visitations. Counsel for the minor argued mother could be trusted with the discretion to allow visits to continue with the siblings and appellants, and that there was no need for a court order to guarantee it. Counsel for the mother stated that mother understands that the visits are in the childs best interests and argued that the court could trust her not to take the visits away from the child. Counsel for appellants stated that appellants wanted the court to order that the current visitation schedule they had with the child continue as being in the best interests of the child. Counsel for the siblings submitted the matter on his written points and authorities, but stated that he did not believe that sibling visitation would continue after dismissal of dependency without a court order. In response to a question by the court, the social worker stated that the sibling visits were "going okay" and that mother was planning to continue them without a court order. The court dismissed the dependency, terminated appellants de facto parent status, and stated that there would be no sibling visitation orders. "I have confidence in the mother that you will continue with these positive relationships, but I think you need the power to be a mother and do those things. So thats going to be the order of the court."
DISCUSSION
Appellants argue that the juvenile court erred in terminating their de facto parent status and abused its discretion in refusing to issue exit orders ensuring visitation between them and the child. We disagree.
They further argue, as they did in a prior appeal, that the courts refusal to order a psychological evaluation of the child was an abuse of discretion. As the request to order a psychological evaluation was not before the juvenile court at the hearing held on September 20, 2002, we need not address that issue.
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 childs physical and psychological needs for care and affection, and who has assumed that role for a substantial period. (Cal. Rules of Court, rule 1401(a)(8).) Those granted de facto parent status have standing to appear as parties in dependency proceedings to protect their interests in the childs care and custody. (In re B.G. (1974) 11 Cal.3d 679, 692-693; In re Kieshia E. (1993) 6 Cal.4th 68, 75-76, 859 P.2d 1290; see also rule 1412(e).) "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., supra, 6 Cal.4th at pp. 77-78.)
All further rule references are to the California Rules of Court.
Once the court grants the de facto status, it continues even though the biological parent becomes involved in the proceedings or regains custody of his or her child. (In re Patricia L. (1992) 9 Cal.App.4th 61, 67.) "De facto parent status does not terminate by operation of law or by any other automatic mechanism except where the dependency itself is terminated." (Ibid ., italics added; cf. In re Joel H. (1993) 19 Cal.App.4th 1185, 1196 [termination of dependency proceedings did not terminate the appellants de facto parent status for purposes of standing to appeal].) At the September 20, 2002 hearing, the Agency asked the court to consider terminating appellants de facto parent status, arguing that it was appropriate to do so when dismissing dependency. When the court asked appellants counsel to respond counsel stated: "Your Honor, I dont know why were even talking about this. You and I both know that if the case is dismissed, all the previous orders that have been made are going to go away at the same time." Because appellants failed to object to the proposed termination of their de facto parent status below, they have waived the issue on appeal. " "An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the [trial] court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial." [Citation.] [Citations.]" (In re Dakota S. (2000) 85 Cal.App.4th 494, 501, italics omitted.)
"Appellate courts have applied the waiver doctrine in dependency proceedings in a wide variety of contexts . . . ." (In re Dakota S., supra, 85 Cal.App.4th at p. 502.) "Many dependency cases have held that a parents failure to object or raise certain issues in the juvenile court prevents the parent from presenting the issue to the appellate court." (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338.) "Any other rule would permit a party to . . . deliberately stand by in silence and thereby permit the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable." (Id. at p. 1339.) The reasoning of these authorities compels the conclusion that, by failing to object in the juvenile court to the termination of their de facto status, appellants waived their right to claim on appeal that the order should be reversed.
Under section 362.4, when the juvenile court terminates its jurisdiction over a dependent child, it may enter visitation orders that will be transferred to an existing family court file (In re Roger S. (1992) 4 Cal.App.4th 25, 30), or visitation orders that may be used as the basis for opening a superior court file (In re Jennifer R. (1993) 14 Cal.App.4th 704, 712). Such exit orders must be based on the childs best interests. ( § 362.4; see In re John W. (1996) 41 Cal.App.4th 961, 973; In re Jennifer R., supra, 14 Cal.App.4th at p. 713.) In addition to setting the frequency and length of visits, a visitation order "may, of course, impose any other conditions or requirements to further define the right to visitation in light of the particular circumstances of the case before it." (In re Jennifer G. (1990) 221 Cal. App. 3d 752, 757, 270 Cal. Rptr. 326; In re Shawna M. (1993) 19 Cal.App.4th 1686, 1690.) The courts determinations regarding custody and visitation may be reversed only if they were arbitrary, capricious, or patently absurd and, therefore, constitute an abuse of discretion. (In re Stephanie M . (1994) 7 Cal.4th 295, 318, 867 P.2d 706.)
In this case the Agency, the childs CASA, the child, and the childs mother all agreed that there was no need for the juvenile court to make an exit order regarding visitation. It was clear to all the parties that the visits the child had been having with his siblings and with appellants were beneficial to the child, and that the mother wanted the visits to continue. The court gave the childs mother legal and physical custody of the child, and the courts comments indicate that it wanted mother to have the right and the ability to determine the frequency, length, and conditions of all further visitation. On the record before us we cannot say that the courts decision was arbitrary, capricious, or patently absurd and, therefore, we cannot say that it constituted an abuse of discretion.
DISPOSITION
The order dismissing dependency and terminating appellants de facto parent status is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J. and Mihara, J.