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In re Dean L.

California Court of Appeals, Fourth District, Third Division
Jul 11, 2008
No. G039175 (Cal. Ct. App. Jul. 11, 2008)

Opinion

NOT TO BE PUBLISHED

Appeals from an order of the Superior Court of Orange County Nos. DP009648 & DP010226, Caryl Lee, Judge. Affirmed. Request for judicial notice. Denied.

Law Offices of Arthur J. LaCilento and Arthur J. LaCilento for Objectors and Appellants.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.

Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Respondent.

No appearance for Minors.


OPINION

FYBEL, J.

Introduction

Dependent minors Dean L. and Ryan L. were removed from a foster care placement in the home of Charles and Debbie L. in May 2006, after a report of physical abuse by Charles against the L.’s adopted son was substantiated. In August 2007, the juvenile court terminated the L.’s status as de facto parents of Dean and Ryan. The L.’s appealed; we affirm.

The juvenile court did not abuse its discretion by terminating the L.’s de facto parent status. Dean and Ryan had been out of the L.’s home for 15 months, and the L.’s no longer had the type of unique information about the children that would support de facto parent status. Additionally, the substantiated allegations of child abuse constituted conduct inconsistent with fulfillment of a parental role. The L.’s either failed to appeal or withdrew their appeals from the juvenile court’s earlier orders on Dean and Ryan’s removal; therefore, their contention they have never been granted an evidentiary hearing as to the validity of the child abuse allegations against Charles and the propriety of removing Dean and Ryan from their home in May 2006 is without merit. It is now too late to consider the issues that were raised or could have been raised by prior appeals.

Statement of Facts and Procedural History

Dean, then six months old, was taken into protective custody in January 2004 after Dean’s half brother Elijah T. was found alone in a public park. (In re Dean. L. (Mar. 16, 2006, G036058) [nonpub. opn.].) The juvenile court found true, by a preponderance of the evidence, the allegations in the juvenile dependency petition alleging failure to protect, no provision for support, and abuse of sibling. (Ibid.) Ryan was placed in protective custody immediately after his birth in May 2004; Dean and Ryan’s mother, Christina H., admitted using methamphetamine during her pregnancy. (Ibid.) The allegations of a separate dependency petition alleging failure to protect and abuse of sibling were sustained. (Ibid.) The juvenile court found that reunification services need not be provided to Christina, pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(10), (13). (Ibid.) (All further statutory references are to the Welfare and Institutions Code.)

This family has been the subject of three prior unpublished opinions: In re Dean L., supra, G036058; In re Elijah T. (July 20, 2005, G035058); and In re Kelsey T. (Mar. 27, 2001, G027320). A fuller discussion of the facts leading to the dependency proceedings for Dean and Ryan may be found in those opinions.

Dean and Ryan were placed together in the foster home of Debbie and Charles L. The L.’s had two adopted children. Both Dean and Ryan received specialized services from the Regional Center of Orange County; Dean attended a therapeutic preschool and received occupational and speech therapy, while Ryan received in-home play therapy to address his significant developmental delays. Both Dean and Ryan suffered from asthma. It was expected that the L.’s would adopt Dean and Ryan. The L.’s were granted de facto parent status on September 7, 2005.

Dean and Ryan’s half brother Elijah was initially placed with the L.’s, as well; in January 2006, the L.’s asked that Elijah be removed from their home due to his behavioral problems.

In November 2005, Debbie left Dean and Ryan unsupervised in a therapist’s waiting room while she used the restroom; in a separate incident, Ryan fell, resulting in a bruised eye and chin. A child abuse registry report of general neglect was found to be inconclusive. The Orange County Social Services Agency (SSA) reported Debbie was a “good and loving mother,” but was overwhelmed caring for four special needs children under age six. Debbie denied any problems and rejected suggestions she seek help.

In April 2006, allegations of physical abuse of Dean by Charles and allegations that Dean and Ryan had witnessed acts of domestic violence were deemed unfounded. However, an April 21, 2006 report of physical abuse by Charles of the L.’s adopted son was substantiated. Dean and Ryan were removed from the L.’s home on May 4, 2006.

In the intervening period, Christina had given birth to another child named Shelby H. SSA did not remove Shelby from Christina’s care, because Christina had remained sober since March 2004. Christina filed a section 388 petition in May 2006, asking that Dean and Ryan be returned to her care and custody, or that reunification services be ordered. Ultimately, SSA released Dean and Ryan to Christina for a 60-day trial visit in August 2006.

On May 18, 2006, the L.’s filed their own section 388 petition asking that Dean and Ryan be returned to their care. The L.’s denied the allegations of abuse, and accused SSA of removing Dean and Ryan from their care to avoid liability and without considering the children’s best interests. The juvenile court granted the L.’s request for a bonding study, and appointed psychologist Dr. Patricia Yglesias to conduct the study. The bonding study, which was filed with the juvenile court on December 29, 2006, concluded there was a low propensity for abuse or neglect by the L.’s. Dr. Yglesias stated the allegations of neglect by Debbie “do not seem supported.” Charles had ultimately acknowledged he had used poor judgment and had been untruthful regarding the substantiated child abuse incident involving his adopted son. Dr. Yglesias believed Charles had a “lapse in parental judgment” when he hit his son on the head with a wooden board with a nail in it, and such a lapse was “not beyond that occasionally experienced by most parents.”

The juvenile court considered the L.’s section 388 petition on February 8, 2007. The court found there was no prima facie showing that SSA had abused its discretion by removing Dean and Ryan from the L.’s home, denied a hearing on the petition, and denied the section 388 petition. Debbie and Charles filed separate notices of appeal on April 5, 2007.

On April 30, 2007, SSA notified the juvenile court it intended to reduce the L.’s visits with Dean and Ryan to one time per month, and eventually to eliminate them. SSA stated that the L.’s had been making unsubstantiated allegations that Christina was abusing and neglecting Dean and Ryan.

The L.’s filed another section 388 petition on May 8, 2007, asking the juvenile court to return Dean and Ryan to their care. The court again found the L.’s had not made a prima facie showing that SSA abused its discretion by removing Dean and Ryan from their home, but did set a hearing on whether placement of Dean and Ryan with Christina was an abuse of discretion.

Christina’s section 388 petition requesting Dean and Ryan be placed in her care and custody came for a hearing on June 13, 2007. The juvenile court took judicial notice of the L.’s section 388 petition and the supporting documents. The court granted Christina’s section 388 petition and placed Dean and Ryan with her under a plan of family maintenance. The L.’s stipulated to withdraw their section 388 petition without prejudice. The L.’s also stipulated to termination of their de facto parent status if Christina’s hair follicle drug test was negative, and to cease investigation and surveillance of Christina.

The L.’s filed a notice of abandonment of their appeal from the February 8, 2007 order denying their first section 388 petition, as the appeal had been rendered moot. On July 12, this court dismissed that appeal.

On July 19, 2007, Dean, Ryan, and Shelby were detained after Christina’s drug patch tested positive for methamphetamines. Christina denied using any type of drugs. A hair follicle test on a specimen collected July 19 was negative for drugs. A patch test collected July 16 was negative, as were additional tests dated July 27 and July 31. The children were placed with their daycare provider.

Christina had additional negative drug test results on August 10, 14, 17, 21, 24, 28, and September 4, 2007, and her patch tests were negative for controlled substances on August 13 and 20.

SSA filed a request to terminate the L.’s de facto parent status, due to the substantiated report of physical abuse, and because Dean and Ryan had been out of the L.’s home for 15 months, meaning the L.’s no longer possessed “unique” information about Dean and Ryan. In their opposition to the request, the L.’s attacked the accuracy of the child abuse registry reports and claimed the reports were deemed unfounded by Dr. Yglesias. They acknowledged there were ongoing proceedings regarding their foster care license. They claimed SSA had not shown a change in circumstances, and they still had unique information about Dean and Ryan.

The juvenile court determined an evidentiary hearing was not warranted, and terminated the L.’s de facto parent status. The L.’s appealed from the order terminating their de facto parent status.

Discussion

I.

The Juvenile Court Did Not Abuse Its Discretion When It Terminated the L.’s De Facto Parent Status.

A.

Juvenile court’s ruling

The juvenile court ruled as follows with respect to SSA’s request to terminate the L.’s de facto parent status:

“ . . . All right, briefly as to the issue of whether or not the court is going to hold an evidentiary hearing. The tentative is going to be the ruling of the court. There have been a multitude of opportunities for everyone to place information before the court that needs to be put before the court and additional information is simply not warranting the holding of an evidentiary hearing.

“Additionally, the request to terminate de facto status, the court’s tentative is going to be the order of the court. The court is granting that request. There is simply a situation where the individuals with the custody of the children, the de facto[ parent]s, had that status changed in May of 2006 with the removal of the children from that home based upon the allegations that resulted in the [child abuse registry] report and as a result, the children were removed from their home in May of 2006. That is over a year from the initial removal, with one year of that being the children remaining with their mother. So there is simply not new information for this court, especially in light of the fact that we now have new allegations to address.

“The analysis is, the court does agree, very similar to [In re] Kieshia E. [(1993) 6 Cal.4th 68], which the agency did cite. Certainly there is a different chain of facts, but the core issue was whether or not there was some sort of issue that is fundamentally at odds with the role of the parent.

“And in this case, the children were removed based upon an allegation of abuse. And the court had already ruled in this case that there was not an abuse of discretion in removing the children. And so therefore, they’re rightfully removed from this home, in this court’s view, and that maintaining the role is simply not providing unique information to this court as contemplated by their earlier relationship. And the court at this time orders that the de facto parent status be terminated.” (Italics added.)

B.

Termination of de facto parent status

We review the juvenile court’s order terminating de facto parent status for abuse of discretion. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1515.)

“If it believes de facto parent status should be terminated, the responsible social services agency or department must file a noticed motion, and ‘has the burden of establishing a change of circumstances which no longer support the status, such as when a psychological bond no longer exists between the adult and the child,’ or when the de facto parent no longer has reliable or unique information regarding the child that would be useful to the juvenile court. [Citation.]” (In re Brittany K., supra, 127 Cal.App.4th at pp. 1513-1514.)

In this case, SSA met its burden of establishing changed circumstances which no longer supported maintaining the L.’s status as de facto parents to Dean and Ryan. Dean and Ryan were removed from the L.’s home after a substantiated child abuse registry report was filed alleging physical abuse by Charles against his adopted son. Additional inconclusive child abuse reports had been filed. In In re Kieshia E., supra, 6 Cal.4th at page 78, the Supreme Court concluded de facto parent status may be denied to an individual whose conduct toward a dependent child is “fundamentally inconsistent with the parental role.” Such conduct also justifies termination of de facto parent status.

Dean and Ryan had been removed from the L.’s home 15 months before the juvenile court entered its order terminating the L.’s de facto parent status. De facto parent status may be terminated “when the de facto parent no longer has reliable or unique information regarding the child that would be useful to the juvenile court.” (In re Brittany K., supra, 127 Cal.App.4th at pp. 1513-1514.) The L.’s could not reasonably contend they served the vital purpose of providing up-to-date, unique information about Dean and Ryan to the court when they had been limited to weekly visitation with Dean and Ryan for 15 months.

The L.’s main argument on appeal is that they have been denied due process because the juvenile court never conducted an evidentiary hearing on their claims that Dean and Ryan were improperly removed from their home, and the child abuse allegations against Charles were in fact unfounded. On two separate occasions, the juvenile court found no prima facie showing of an abuse of discretion by SSA in removing Dean and Ryan from the L.’s home. The L.’s abandoned their appeal from one order, and did not appeal from the other after they withdrew their section 388 petition. Although the L.’s now claim they have been denied an opportunity to litigate the merits of the child abuse reports and SSA’s removal of Dean and Ryan from their care, it was the L.’s themselves who chose to forego timely appellate review of those issues.

The juvenile court did not abuse its discretion by deciding the issue of terminating de facto parent status without an evidentiary hearing. “‘[I]f the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition.’ [Citation.]” (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)

II.

Request for Judicial Notice.

SSA filed a request for judicial notice, or alternatively a motion to take additional evidence on appeal. The three documents of which SSA asks us to take judicial notice are: (1) an April 9, 2008 minute order of the juvenile court; (2) an addendum report prepared by SSA and filed with the juvenile court on March 5, 2008; and (3) an addendum report prepared by SSA and filed with the juvenile court on April 8, 2008. Each of these documents is offered to show that Dean and Ryan (and Shelby) have been returned to Christina’s custody. These are the types of documents of which judicial notice may be taken. (Evid. Code, § 452, subd. (d).)

We are generally prohibited from considering on appeal evidence that was not before the juvenile court when it entered its order. (See generally In re Zeth S. (2003) 31 Cal.4th 396, 413.) No exception to that general rule applies here, and we therefore deny SSA’s request for judicial notice.

Disposition

The order is affirmed.

WE CONCUR: SILLS, P. J., ARONSON, J.


Summaries of

In re Dean L.

California Court of Appeals, Fourth District, Third Division
Jul 11, 2008
No. G039175 (Cal. Ct. App. Jul. 11, 2008)
Case details for

In re Dean L.

Case Details

Full title:In re DEAN L. et al., Persons Coming Under the Juvenile Court Law. ORANGE…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Jul 11, 2008

Citations

No. G039175 (Cal. Ct. App. Jul. 11, 2008)