Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIJ106944. Robert M. Padia, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Suzanne F. Evans, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Carol A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Minor.
OPINION
MILLER, J.
INTRODUCTION
In three separate appeals filed over the course of eight months, maternal grandparents Stephanie and Paul K., (Stephanie, Paul, maternal grandparents, or appellants) seek reversal of a number of juvenile court orders related to the dependency of their three-year-old granddaughter M.M. The orders appealed include two denials of petitions for Welfare and Institutions Code section 388 hearings, two denials of petitions for de facto parent status, and an order continuing the suspension of their visitation with the child. M.M.’s appellate counsel urges us to affirm all the appealed orders. Respondent Riverside County Department of Public Social Services (Respondent or the Department) argues vigorously in its latest reply brief that in view of M.M.’s March 1, 2007, adoption, all the appeals are moot and should be dismissed.
All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.
We conclude that appellants’ appeals are indeed moot in that we are unable to grant effective relief. We therefore dismiss them. As we explain, however, even if appellants’ claims were not moot we would find them meritless.
FACTUAL AND PROCEDURAL HISTORY
M.M. was born in September 2003 to Melissa K. (Melissa or the mother) and Jesus M. (Jesus or the father). On November 12, the Department filed a section 300, subdivision (b) petition on her behalf. The Petition alleged that Melissa suffered from mental health problems which limited her ability to parent and endangered her child. (§ 300, subd. (b)(2).) The petition also alleged that Jesus had been arrested on various criminal charges such that the child was at risk of suffering serious physical harm. (§ 330, subd. (b)(2).) Over the next 16 months neither parent reunified with their daughter. On February 28, 2005, the court terminated their parental rights and identified adoption as the preferred permanent plan. (§ 366.26) Neither Melissa nor Jesus appealed the termination order.
Paternal grandparents Marisela and Jose M. (Marisela, Jose, paternal grandparents), with whom M.M. had been placed since December 12, 2003, wanted to adopt her. According to Department reports, the child was bonded to them and was “thriving” in their home.
Maternal grandparents Stephanie and Paul also wanted to adopt her. They had visited M.M. regularly since her removal and she was bonded to them too. However, although the Department had evaluated their home several times, the child had not been placed with them. Over the course of the dependency, reports by three different social workers had documented a number of problems and during the posttermination period adoptions social workers had documented similar problems.
A. Detention
Roseann Munro (Munro) spoke to Marisela, Melissa, and Stephanie in preparation for the detention report filed November 13, 2003. Marisela reported that Melissa arrived at the paternal grandparents’ home with M.M. on October 31 upset and crying because appellants had kicked her out. Stephanie later came to Marisela’s home very irate and “threatening” her if she allowed Melissa and the baby to stay. On November 6 Melissa left the baby with the paternal grandparents without telling them where she was going. Melissa told the social worker that she was afraid of her mother because she had guns in the house and had threatened her. Stephanie was upset and argumentive when she spoke to Munro and stated that the paternal grandparents were “‘Satan worshipers’” and “‘horrible people.’”
B. Jurisdiction/Disposition
Alexander Ygloria (Ygloria) wrote three J/D reports: an original filed December 3, 2003, for the December 8 hearing, plus addenda filed December 30, 2003, and January 12, 2004, for a contested hearing on January 14. For the original report, Ygloria interviewed Melissa, Stephanie, Marisela, and Munro, all on December 2. Melissa told him that everything in Munro’s report was untrue. She had never told anyone that her mother had guns in the house or that she felt unsafe there; she and her mother rarely ever fought. Stephanie said that Munro’s report included many statements taken out of context or that were not true: she had never thrown Melissa out of the house and she and her daughter never argued. Marisela repeated the statements she had made to Munro almost “word for word.” Munro told Ygloria that the statements by all the parties she investigated and quoted in her detention report were “verbatim.”
Ygloria ended his first report by detailing several concerns. The maternal grandparents had not been forthcoming with Department social workers and he could not be sure of their being truthful if he placed M.M. in their home. Stephanie’s statements about her family and her claim that Munro was “lying” led him to believe that the “family [was] trying to hide many of the internal problems that the family has experienced and [was] currently experiencing.” If M.M. were placed with the maternal grandparents, there would be no way to ensure that the child would not be left alone with Melissa, who had mental health issues that needed to be addressed. Ygloria and his supervisor Avery Mason concluded together that “there was substantial risk to the child’s safety if placement was vested with the maternal grandmother.”
At the end of the hearing on December 8, 2003, at the request of Melissa’s attorney, the juvenile court ordered the Department to reassess the maternal grandparents’ home and authorized, but specifically did not order, placement there. The court gave Stephanie and Paul an extended opportunity to comment and to ask questions. The two complained at some length about having to have supervised visits, about not receiving copies of Department reports or a chance to address things in the reports, about the fact that M.M. had not been placed with them, and about feeling “bulldozed by the Department.” In response the court repeatedly explained that while they had a right to be present at the hearings, they did not have the same rights as a parent. The Department wished to observe their interaction with the child; if it turned out there were “no issues,” visits would likely become unsupervised. When Stephanie began to criticize the paternal grandmother the bailiff intervened and the parties left the courtroom.
In preparation for the first addendum to the original J/D report, Ygloria talked to Melissa twice, on December 8 and December 29. Both times she reiterated problems she had had with her own mother. Stephanie had threatened to have her daughter’s parental rights terminated and could do so because she was a “‘trained paralegal’” who “knew her way around a courtroom”; mother and daughter had not gotten along for years; their relationship was increasingly unstable and often involved physical violence; Stephanie and Paul argued constantly but had been working together to mislead the Department and the court into thinking that they did not have any problems; Melissa confirmed Ygloria’s concern that her mother had a drinking problem; the social worker had smelled alcohol on Stephanie’s breath on at least three occasions during supervised visits.
Ygloria spoke to Stephanie by telephone on December 9 and December 10. He explained that he was placing M.M. with the paternal grandparents. To ensure a safe environment for the child, Ygloria told Stephanie the Department needed to choose a place where the relative would convey truthful information and would actively participate in reunification efforts. In response, Stephanie “flew into a belligerent rage” and told the social worker that he had “really fucked up this family.” The paternal relatives were “a bunch of devil worshiping freaks . . . . You and that stupid judge don’t see that putting my granddaughter in that home is going to get her killed . . . . [¶] . . . I know my way around the courtroom and I’m going to get an attorney who is going to put you and that judge in your place.”
Because of her slurred speech and apparent inability to form a coherent statement, Stephanie sounded extremely intoxicated to Ygloria and he called his supervisor, Avery Mason, to listen on the speakerphone as the maternal grandmother spoke. Mason agreed that she sounded intoxicated and concluded that the Department could no longer consider placement in her home because she appeared “unstable and volatile.”
On December 11 Ygloria placed M.M. with her paternal grandparents. Stephanie refused to give them any of M.M.’s belongings for use in her care. She denied alcohol use and attributed her actions the previous day to codeine she had been prescribed for a “bad leg.”
On January 12, 2004, Ygloria filed a second addendum. M.M. continued to do well living with Marisela and Jose. A twice-a-month visitation schedule of one hour per visit had been established for the maternal grandparents; they had visited M.M. for the first time under the new schedule on January 8. The visit had gone without incident and they had exhibited “qualities consistent with good parenting.”
At the contested J/D hearing on January 14, the four Department reports—November 13, December 3, and December 30, 2003, and January 12, 2004—were admitted without objection. The court found Jesus to be the presumed father and sustained the allegations against both parents. It also authorized visitation for the maternal grandparents—to be supervised at the discretion of the Department—and set the six-month review hearing for July 14.
C. Six Month Status Review
On June 28, 2004, Sheri Boyd (Boyd) filed the six-month status review report (§ 366.21, subd. (e) or .21(e) report) recommending that reunification services be terminated and a selection and implementation hearing be set (§ 366.26 or .26 hearing). Boyd’s report described M.M. as a very happy baby who was developing normally. She was bonded to all her grandparents.
Both sets of grandparents still wanted to adopt the child should reunification fail. They could not get along, however, and had made numerous allegations against each other which could “neither be proven nor disproved.” As a result of this animosity, the maternal grandparents’ weekly visits were taking place at the CPS office. During the visits, they were observed to be “very nurturing and loving” with M.M. They continued to request that the child be placed with them and the Department was again assessing their home for extended visitation or placement.
In an addendum filed August 26 Boyd reported that because of “hits” in the maternal grandparents’ background checks their visitation with M.M. would need to continue to be supervised until the matter could be resolved.
At a contested section 366.21, subdivision (e) hearing on August 30, the juvenile court terminated reunification services to both parents and set the section 366.26 selection and implementation hearing for February 28, 2005. The maternal grandparents arrived in court after the hearing was over and became very emotional and upset when the court tried to explain the proceedings to them. They told the hearing officer that the criminal matters in their background checks had happened when Stephanie was 25 years old and were not an issue. They wanted an order for unsupervised visitation despite the Department’s recommendation, but the court refused their request and referred the matter back to County Counsel and the social worker. The maternal grandparents were then “escorted out of the courtroom.”
D. Section 366.26
Boyd filed a section 366.26 report on December 10, 2004, and an addendum to the report on December 22. Both reports recommended that parental rights be terminated and that adoption by the paternal grandparents be the preferred permanent plan.
Background checks showed “hits” from 1982 and 1989 reporting both maternal grandparents as battery suspects and in 1998 Stephanie had taken out a restraining order against Paul. Stephanie and Paul had not previously disclosed any of these incidents and continued to deny and minimize the seriousness of their domestic violence. Boyd and her supervisor decided that their visits with M.M. should continue to be supervised. Boyd later received a police report from October 1991 confirming the history of domestic violence. However, given the time lapse since the police report, on November 2 the Department decided to allow the maternal grandparents to have unsupervised visits. The social worker went to their home during a visit on November 17 and found it clean, neat, and free of safety hazards. M.M. appeared bonded to Stephanie. Similarly, when Boyd visited the paternal grandparents’ home, M.M. appeared bonded to Marisela.
On February 23, 2005, Boyd filed a second addendum to the section 366.26 report of December 10, 2004. The new addendum included details of the Department’s investigation of the maternal grandparents’ repeated claims that Jose and Marisela were allowing a Penal Code section 288 offender to live in their home and have access to the child. Although he had apparently once used the paternal grandparents’ address, the alleged offender (a paternal great-great uncle to M.M.) had been incarcerated in Oregon since before M.M. was born and was not scheduled to be released until July 7, 2023. The new addendum again recommended that parental rights be terminated and that placement continue with the paternal grandparents.
On February 28, at the end of the contested section 366.26 hearing, the court terminated Melissa’s and Jesus’s parental rights to M.M. and identified adoption with the current caretakers as the proposed permanent plan. At the close of the hearing, the maternal grandparents became very angry. They argued with the judge and made accusations against the social workers and eventually had to be escorted from the court by the bailiff.
E. Posttermination Reports and Events
Five months after termination, on July 28, 2005, adoptions social worker Catherine Shorter (Shorter) filed a status review report (SRR). M.M. was doing well with her paternal grandparents and they were willing and able to provide her with a loving permanent home. M.M. was also visiting regularly with Stephanie and Paul, but the two sets of grandparents continued to have difficulty getting along with each other. On July 21 Marisela had asked if overnight visits with the maternal grandparents could be discontinued.
On December 9 Stephanie refused to attend a scheduled three-hour visit with M.M.: “‘I am not going to go to any supervised visit with my granddaughter.’” On December 29 she and Paul filed a motion for stay of the adoption pending the court’s rulings on a section 388 petition and de facto parent status application they filed the same day. As changed circumstances, the 388 petition alleged that the petitioners’ visits with M.M. had been unexplainably terminated the previous month and that the father was due to be paroled and would be living in the adoptive parents’ home. The petitioners requested that the permanent plan be changed from adoption to guardianship to ensure continued contact between them and their granddaughter. The declaration in support of the de facto parent status application asserted that Stephanie and Paul, although currently separated, had established a nurturing and loving relationship between themselves and the child, and had “[t]herefore . . . met their burden for De Facto status . . . .”
On December 28 the juvenile court summarily denied both the 388 petition and the de facto parent status application. The denial indicated that the 388 petition failed to state new evidence or a change of circumstances or how the requested modification would promote the best interests of the child. On January 5, 2006, appellant filed a notice of appeal of the denials; on January 12 the court continued the dependency pending resolution of the appeal.
Shorter’s second posttermination status review report, filed on February 15, 2006, again found M.M. doing well in her paternal grandparents’ home. She continued to have visits with her maternal grandparents. However, the paternal grandmother was concerned that Paul was permitting contact between Melissa and M.M. during the visits. Adoption remained the most appropriate permanent plan for the child.
On July 23, Stephanie did not bring M.M. back to the paternal grandparents’ home at the end of one of the visits and when Marisela went to pick her up, she found police there investigating a molestation charge. Melissa and Stephanie had reported that the child said that Jesus “touched” her vaginal area and had hurt her. Marisela called Shorter to inquire about what was going on and Shorter, in turn, called the emergency child abuse hotline. Social worker Kathy Lowe (Lowe) responded to the call and immediately removed M.M. to a shelter home. A physical examination at a “CAN” clinic the following day revealed vaginal irritation and poor hygiene but no evidence of sexual abuse. The examining physician thought the irritation was from an environmental source like sand, dirt, a wet bathing suit, or a diaper. The doctor did not believe the redness could have been caused by any contact a month earlier. Jesus’s parole officer confirmed that he had been incarcerated since June 12.
Child Abuse and Neglect.
In the course of the Department’s investigation of the molestation, Stephanie gave Lowe photographs of Jesus, M.M., and Jesus’ current girlfriend that had been posted on the internet at myspace.com. Some of the photographs of Jesus and his girlfriend had sexually explicit captions. The postings also included a number of poems and “blog” entries extolling the pleasures of alcohol, violence, and death. When Lowe showed the photographs to Marisela, the paternal grandmother said that she had been present when a picture of M.M. and Jesus was taken, but did not know when the photograph that included the girlfriend was taken. Marisela denied being aware of the restraining order against Jesus and said he visited M.M. about twice a week in her home but had not lived with her since September 2003. She admitted that there had been two occasions when she did not herself supervise Jesus’s visits with the child, but said that her husband [Jose] had been home at those times.
Two days after the emergency removal, on July 25, Lowe interviewed M.M. privately at the shelter home. The child was crying and upset and continually asked to be taken home to Marisela. Lowe took M.M. back to the paternal grandparents’ home that day. On July 27, a team of Department staff discussed the ongoing hostility between the grandparents and expressed concern about the child’s stress from being in the “middle of a family feud.” The team felt that visitation should be determined by the child’s therapist. In a telephone call to Marisela later that day Lowe explained that the paternal grandmother could decide whether or not to allow continued visitation with the maternal grandparents. On July 31 Marisela called Lowe to report that the child said “Melissa and Stephanie” told her to say Jesus had touched her and that she had been crying a lot at bedtime and appeared to be having nightmares. On August 4 Lowe closed the referrals regarding sexual abuse and general neglect as inconclusive. The social worker warned Marisela that the restraining order was still in place and that any visits between M.M. and Jesus must be supervised at all times. When the maternal grandmother was told the referral was being closed as inconclusive, she told Lowe she was “going to take this to a higher level” and threatened to call the media.
On August 15 Shorter filed her third status review report. The Department had suspended visits with the maternal grandparents and Shorter recommended that they remain suspended until a therapist could evaluate whether the visits should occur and/or should be supervised after the adoption was finalized.
On August 24 Stephanie filed her opening brief in case number E039691 arguing that the juvenile court abused its discretion by denying her December 2005 section 388 and de facto parent status petitions. Four days later, on August 28, a different adoptions worker, Ivy Duong (Duong), filed an addendum to Shorter’s report of two weeks earlier.
Duong’s findings and recommendations differed from Shorter’s. Duong had interviewed the paternal grandmother at some length on August 22 and elicited inconsistencies in her stories. At first Marisela said she did not speak English well enough to understand the social workers, then appeared to understand very well; she denied ever having allowed Jesus to have contact with M.M. when she was not at home as she had earlier admitted to Lowe; she denied knowledge of Jesus’s activities on myspace.com and denied that he sometimes slept at home as he had indicated on the website; she insisted she was not aware of the restraining order forbidding contact between him and the child; and she did not understand why he was a risk to M.M. Duong concluded that the paternal grandmother was not capable of protecting M.M. from Jesus and recommended that the child be removed from the prospective adoptive home. Attached to Duong’s report were copies of a Notice of Intent to Remove Child and the paternal grandparents’ Objection to Removal, both filed on August 24. A hearing on the matter was set for August 30.
At the August 30 hearing, counsel for the maternal grandparents requested that if M.M. were removed from the paternal grandparents’ home, she be placed with them. Counsel for the Department told the court that she had discovered that the October 2003 restraining order requested by the mother against the father had been filed before the inception of the dependency. In addition, as part of reunification efforts at the beginning of the case, the juvenile court had ordered supervised visitation with the father notwithstanding the restraining order. For these reasons, the Department considered it possible that the paternal grandmother had misunderstood the order or had not been aware of its extent. Because M.M. had been in the prospective adoptive home for most of her life, and in consideration of the child’s best interests, the Department was now asking that placement not be changed after all but that the court strongly admonish the paternal grandparents not to allow any contact with the father.
Counsel for M.M. agreed that it was in her best interest to stay where she was. The child was extremely attached to her paternal grandmother and since the removal in July “wouldn’t let [Marisela] out of her sight.” Counsel was concerned that Stephanie and Paul were coaching M.M. to make allegations against Marisela and Jose and noted that the Department had requested that visitation with them be suspended.
The court did not formally suspend the maternal grandparents’ visitation at that time, but found it was not in M.M.’s best interests to be removed from her prospective adoptive home. It admonished the paternal grandparents not to allow contact between the child and Jesus. However, on September 15 when counsel for M.M. filed an ex parte application for an order suspending the maternal grandparents’ visits with M.M., the court promptly issued the order. On September 29 the court issued another restraining order against Jesus, who had been absent without leave from his group home placement since August 25. On October 11 the court set a hearing regarding the suspension of maternal grandparents’ visitation for November 1.
Also on October 11, while their first appeal was pending, the maternal grandparents filed a second set of petitions requesting a stay of the adoption, de facto parent status, and a 388 hearing. This time they claimed they had been “shut out and silenced” since the beginning of the case and had been “maligned with no opportunity to defend themselves.” Because they had “established a loving and nurturing [relationship] between themselves and the child,” they believed they had “met their burden for De Facto status.”
The new section 388 petition alleged as changed circumstances that Marisela had placed M.M. at risk by allowing Jesus back into her home after he was paroled. The petition included an attachment showing the myspace.com printouts reviewed by adoptions worker Lowe as part of the molestation investigation in July. The petitioners repeated the molestation accusations, argued that the Department’s investigation had been incomplete, and asserted that it would be in M.M.’s best interests to be removed from the paternal grandparents’ home to protect her from her father. On October 17 the juvenile court summarily denied the new petitions, finding again that the petitioners had not made a prima facie showing either that there were changed circumstances or that the requested modification would be in the child’s best interests.
Three weeks later, on November 1, a third adoptions social worker, Julia Hernandez-Ortega (Hernandez-Ortega), filed another addendum to Shorter’s status review report of August 15. Hernandez-Ortega recommended that the restraining order against Jesus be continued and that visits between M.M. and the maternal grandparents remain suspended. The child had been seen by a therapist who believed she was suffering from anxiety and stress produced by her recent separation from her prospective adoptive mother. The therapist felt that visits between M.M. and Stephanie would negatively affect the child and recommended that they be reassessed after M.M. received treatment for her anxiety.
A notice of appeal of the orders summarily denying the second set of petitions was filed on October 31, 2006, and this court consolidated it with the first appeal. On November 1, in light of the Hernandez-Ortega addendum report and with the concurrence of minor’s counsel, the juvenile court continued the suspension of the maternal grandparents’ visitation. On March 1, 2007, the juvenile court terminated M.M.’s dependency due to her adoption.
Appellants’ opening brief in their third appeal, asserting that the juvenile court violated their rights to due process by not allowing them to address the court before continuing the suspension of visitation, was filed February 1, 2007. Respondent’s brief, arguing that the juvenile court’s March 1 order finalizing M.M.’s adoption and dismissing the dependency has mooted all the prior appeals, was filed March 29. On April 19 appellants filed a reply brief, arguing that this court should ignore the March 1 order in deciding all three appeals which, appellants insist, are not moot.
DISCUSSION
The threshold issue is whether appellants’ claims have been rendered moot by M.M.’s adoption. We hold that they have been and dismiss the appeals. However, as we explain, even were the claims not moot, we would find no error and would affirm.
A. Mootness
An appellate court’s jurisdiction extends only to actual controversies for which the court can grant effective relief. (In re Christina A. (2001) 91 Cal.App.4th 1153, 1158; In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316.) If subsequent acts or events render the questions raised in the appeal moot, then the action no longer presents a justifiable controversy. (In re Christina A., supra, at p. 1158.) An exception to this rule exists where the question to be decided is of continuing public importance and is one “‘“‘capable of repetition, yet evading review.’”’” (Ibid.) This can occur in dependency cases where appellate courts may be unable to obtain the appellate record and briefing by the parties in time to decide an important issue before it becomes moot in a particular case. (Ibid.) After an adoption has been finalized there is no effective relief regarding issues raised in a section 388 petition that may be granted by either a trial court or this court. (In re Albert G. (2003) 113 Cal.App.4th 132, 134-135.)
Because M.M.’s adoption has been finalized and the dependency dismissed, there is no effective relief we can grant as to any of the issues raised by the maternal grandparents’ earlier section 388 petitions and de facto parent applications. There is no question of continuing public importance that is “capable of repetition, yet escaping review” here and appellants do not argue that point. The issues are moot. Further, regarding visitation, we note that adoptive parents have all the rights and duties that appertain to the legal parent-child relationship; one of these is the right to exclude third parties, including biological grandparents, from access to the child. (Fam. Code, § 8616; Troxel v. Granville (2000) 530 U.S. 57, 72-73.) Thus, even were we to find that the maternal grandparents were denied due process at the November 1 hearing (which we do not) neither we nor the juvenile court could order visitation over the parents’ objection. Accordingly, because all appellants’ claims have been rendered moot by the adoption, we dismiss the appeals.
As we explain below, however, the juvenile court did not abuse its discretion when it issued the challenged orders.
B. Section 388 Petitions
A juvenile court’s ruling on a section 388 petition will not be disturbed unless the court has abused its discretion by making a capricious, arbitrary, or absurd determination. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Jasmon O. (l994) 8 Cal.4th 398, 415.) In reviewing the decision and the evidence supporting it, an appellate court may not substitute its judgment for that of the trial court, but must view all evidence in the light most favorable to the ruling, indulging in all reasonable inferences to support the decision, keeping in mind the principle that matters of fact and credibility are the province of the hearing court. (In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.)
Section 388, subdivision (a) provides in relevant part that “Any . . . person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made . . . .” The petition must be verified and, must contain, . . . [¶] . . . [¶] . . . [a] concise statement of any change of circumstance or new evidence that requires changing the order.” (Cal. Rules of Court, rule 5.570(a)(7).) Although the petition must be liberally construed in favor of its sufficiency, it may be denied without a hearing if it does not make a prima facie showing of changed circumstances or new evidence such that the requested modification would promote the best interest of the child. (Rule 5.570(a) & (d); Orange County Social Services Agency v. Peggy M. (in Re Elizabeth M.) (1997) 52 Cal.App.4th 318, 323; In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) General or conclusory allegations will not suffice to make a prima facie showing. (In re Edward H. (1996) 43 Cal.App.4th 584, 593; In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.) “[A] party may not challenge [a termination of parental rights] order by means of a section 388 modification petition because once parental rights have been terminated, ‘the court shall have no power to set aside, change, or modify’ the judgment terminating parental rights.” (In re Carl. R. (2005) 128 Cal.App.4th 1051, 1071, citing § 366.26, subd. (i).)
All further rule references will be to the California Rules of Court.
Here, appellants failed in both of their section 388 petitions to make the required prima facie showings of changed circumstances or new information necessary to proceed by way of a full hearing. None of the information in either petition was new and none of it showed how the modifications they were requesting would benefit M.M.
The December 2005 petition asserted that the maternal grandparents had “had a successful home evaluation, and passed Life Scan” and were told that they would be receiving placement of the child. In fact, according to reports by three different social workers, they had not had a successful home evaluation. Their lack of honesty regarding the problems in their family had convinced the Department that M.M. should not be placed there. Nor had they successfully passed the background check, which revealed a history of domestic violence they neglected to disclose and, when it was discovered, minimized. Finally, it does not appear from the record that the maternal grandparents were ever told that M.M. would be placed with them. The court ordered their home re-evaluated and authorized, but did not order placement there.
The December 2005 petition also stated that the maternal grandparents had a loving relationship with M.M. that it was not in her interest to terminate. That there was a bond between them and the child was not new information. Social workers had conveyed that information to the juvenile court in a number of reports. There is no reason to believe that the court did not take this fact into consideration when making its orders.
Despite the bond, however, M.M.’s counsel was concerned that hostility had led the maternal grandparents to make a number of unconfirmed charges against the paternal grandparents and that these incidents had harmed the child. If they were permitted to continue to visit with M.M., counsel felt, there was a danger that they would coach her to make more such allegations. Our review of the record shows that counsel’s concern was valid. Early in the case, Stephanie insisted that the paternal grandparents were “horrible people” and “devil worshippers” and that M.M. would be killed if placed with them. None of this proved true. On their many visits to the paternal grandparents’ home over three years social workers consistently found M.M. happy and well cared for there. Later, the maternal grandparents charged that Marisela and Jose had a Penal Code section 288 sex offender living with them; in fact the suspected person had been incarcerated in Oregon since before the child was born and was not scheduled to be released until 2023. Still later, the maternal grandparents alleged that the paternal grandparents had allowed Jesus access to the child and that he had molested her. Investigation revealed that Jesus had been incarcerated for almost six weeks prior to the alleged molestation and there was no medical evidence that any molestation had taken place. The allegation necessitated a sudden removal from the prospective adoptive home and caused the child to be traumatized to the point of needing psychotherapy.
The October 2006 section 388 petition asserted that the maternal grandparents had been “shut out and silenced” and “maligned with no opportunity to defend themselves.” Again, the record reveals otherwise. It is full of notes referencing social workers’ telephone conversations and visits with the maternal grandparents. In addition, the Clerk’s and Reporter’s Transcripts document their multiple opportunities to complain directly to the court.
In declarations attached to both the December 2005 and October 2006 petitions, the maternal grandparents indicated they were concerned about possible contact between M.M. and Jesus. At first they speculated that he was going to be released on parole to his parents’ home; then they said he had been released and was actually living in his parents’ home. This information was investigated by the Department and appeared to be inaccurate. Jesus was scheduled to be released to his own grandparents’ home, not his parents’ home. His paternal grandmother confirmed that he was living with her and sharing a room with her 23-year-old son. The information was also not new. M.M.’s counsel and counsel for the Department were aware of the maternal grandparents’ claims and requested the court to admonish the paternal grandparents not to allow contact between the child and their son, which it did.
Finally, also in both the 2005 and 2006 petitions, the maternal grandparents sought to have the child moved to their home and the permanent plan changed from adoption to guardianship to ensure their continued contact with the child. Not only did the juvenile court have no power to fulfill these requests (In re Zeth S. (2003) 31 Cal.4th 396, 407, fn. 4; In re Carl. R., supra, 128 Cal.App.4th at p. 1071), we cannot see how it would have served the child’s interests to remove her from the stable home in which she had been living and doing well for almost three years.
C. De Facto Parent Status
As with section 388 petitions, we use the abuse of discretion standard to review a juvenile court’s decision regarding de facto parent status petitions. (In re Michael R. (1998) 67 Cal.App.4th 150, 156.) Ordinarily, there is no abuse of discretion if the court’s order is supported by substantial evidence. (Ibid.) To determine if substantial evidence supports the order, we review the entire record, viewing the evidence in the light most favorable to the ruling. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) The standard is not whether substantial evidence supports the appellant’s position, but whether substantial evidence supports the ruling of the dependency court. (In re Charmice G. (1998) 66 Cal.App.4th 659, 664.)
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.” (Rule 5.502(10).) A person other than a parent who has undertaken a parental role by raising the child in his or her own home, may in time acquire a legally protected interest in the companionship, care, custody and management of the child. (In re Kieshia E. (1993) 6 Cal.4th 68, 75; In re B.G. (1974) 11 Cal.3d 679, 693.) The party seeking de facto parent status bears the burden of proving that he or she satisfies the statutory criteria. (In re Jacob E. (2004) 121 Cal.App.4th 909, 919.)
In making determinations regarding de facto parent status, a juvenile court looks to factors such the child’s psychological bond to the adult; whether the adult has assumed the role of a parent on a day-to-day basis for a substantial period of time; whether the adult possesses information about the child unique from other participants in the process which can contribute to the court’s ability to fashion a disposition which is in the child’s best interest, whether the adult has regularly attended juvenile court hearings; whether proceedings will result in an order permanently foreclosing future contact between the child and the adult. (In re Patricia L. (1992) 9 Cal.App.4th 61, 66-67 (Patricia L.); In re Michael R., supra, 67 Cal.App.4th at p. 155.) Although de facto parents have an interest in the care of the child that is entitled to legal protection, their rights are not those of biological parents. (In re Crystal J. (2001) 92 Cal.App.4th 186, 191.) “A grant of de facto parent status gives a person the right to be present at the dependency hearing, to be represented by counsel, and to present evidence. [Citations.]” (Ibid.) De facto parent status does not confer a right to visitation with the child. (In re Kiesha E., supra, 6 Cal.4th at p. 82; Clifford S. v. Superior Court (1995) 38 Cal.App.4th 747, 752.) When a person commits a harm to the child “‘that is fundamentally at odds with the role of a parent, that person’s protectible interest in dispositional decisions is extinguished, including whatever right he might otherwise have had to de facto parent status. [Citation.]” (In re Michael R., supra, 67 Cal.App.4th at p. 158, citing In re Vincent C. (1997) 53 Cal.App.4th 1347, 1356-1357.)
Here, substantial evidence supported the juvenile court’s decision to deny appellants’ motions for de facto parent status. It is true that M.M. resided in their home for the first six weeks of her life, that they visited her faithfully over the period of her dependency, that they had attended virtually all of the court hearings, and that the child was bonded to them. However, the child had never been placed there. Each social worker assigned to the case had documented problems and had chosen to continue placement with the paternal grandparents. Even the one social worker who felt the child should be removed from the prospective adoptive home did not recommend that she be placed with the maternal grandparents. Considering that M.M. was two years old when they filed their first motion for de facto parent status and over three when they filed the second one, the maternal grandparents simply had not assumed the role of parents on a day-to-day basis for a “substantial period of time.” (Patricia L., supra, at p. 67.)
Nor had they demonstrated that they possessed information about M.M. that was “unique from other participants in the process” or that was unknown to the Department or to the court. Both sets of grandparents had allowed the parents to have access to M.M. and both had reported this information to the social workers. On more than one occasion, the maternal grandparents had taken pains to let the social workers know about what they considered misdeeds by the paternal relatives.
Moreover, in actions that appear to be fundamentally at odds with the role of parents, the maternal grandparents did not show themselves able to cooperate with a disposition that put M.M.’s interests ahead of their own. (Patricia L., supra, at p. 67.) Instead, they insisted on pursuing hostile disputes with the paternal grandparents and with the Department regardless of the harmful effect their behavior might have on their grandchild. (In re Michael R., supra, 67 Cal.App.4th at p. 158.) Stephanie would not let the paternal grandparents use M.M.’s baby supplies. She refused the opportunity for a three-hour visit with her granddaughter because she insisted the visit be unsupervised. Both Stephanie and Paul denied and minimized their history of domestic violence. They also made numerous unsubstantiated/unfounded allegations against the prospective adoptive parents: they accused them of being devil worshippers, of having a sex offender living with them, of failing to protect the child from molestation by the father; and they insisted that the Department failed to adequately investigate these charges. None of the allegations proved true, but they effectively interrupted the stability of M.M.’s adoptive home and delayed the progression of the case.
D. Due Process
In their most recent appeal, of the November 1, 2006, order continuing the suspension of visitation, Stephanie and Paul argue that the juvenile court denied them due process by not allowing them to present evidence supporting their requests for its resumption. Appellants misunderstand the process due them. The right to maintain a relationship with grandchildren and to participate in their dependency proceedings is restricted by state juvenile jurisdiction to determine and protect the best interests of dependent minors. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1508, citing, among other cases, Troxel v. Granville, supra, 530 U.S. at pp. 60, 64-66, 69-73.) As neither parents nor de facto parents, appellants had no right to participate in the proceedings.
As we have noted, the court here specifically stated that it was in M.M.’s best interest to continue the suspension of the maternal grandparents’ visits. Moreover, even without de facto parent status and despite their claim to have been “shut out and silenced,” they were allowed to address the court at length on more than one occasion. At the contested J/D hearing, the court patiently permitted them to ask questions and make extensive comments until they finally had to be shown out of the courtroom by the bailiff. After the six-month review hearing, the court again permitted them to comment until again they had to be escorted out. Finally, after the contested section 366.26 hearing, they argued with the judge until they had to be escorted from the courtroom a third time. Appellants received more process than was their due.
E. Conclusion
For the reasons discussed, we conclude that the juvenile court did not abuse its discretion in denying appellant’s section 388 petitions, in refusing their applications for de facto parent status, or in confirming and continuing the suspension of their visitation.
DISPOSITION
The appeals are dismissed.
We concur: RAMIREZ, P.J., McKINSTER, J.