Opinion
B231687
10-18-2011
In re K.H., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.H., Defendant and Appellant.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, Navid Nakhjavani, Deputy County Counsel for Respondent Los Angeles County Department of Children and Family Services. A.S. and Z.S., in pro. per., for Respondents A.S. and Z.S.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK71493)
APPEAL from an order of the Superior Court of Los Angeles County, Timothy R. Saito, Judge. Affirmed.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, Navid Nakhjavani, Deputy County Counsel for Respondent Los Angeles County Department of Children and Family Services.
A.S. and Z.S., in pro. per., for Respondents A.S. and Z.S.
INTRODUCTION
The juvenile court appointed A.S. and Z.S. as nine-month-old K.H.'s de facto parents. On appeal, M.H., mother, contends that the existence of a de facto parent as a party in a dependency case violates a parent's federal and state constitutional rights to substantive and procedural due process. Mother also contends that the juvenile court abused its discretion in appointing the S.'s as K.H.'s de facto parents. We affirm.
BACKGROUND
We limit our recitation of facts to those that are necessary for context and those that are relevant to the juvenile court's ruling on the de facto parent request. Some of the facts are taken from the appellate record in an earlier appeal in this matter (appeal number B228669) of which we take judicial notice. (Evid. Code, § 459, subd. (a).)
K.H. was born in May 2010. K.H. had three siblings who were the subjects of dependency proceedings due to sustained allegations of physical abuse. On June 1, 2010, the Department of Children and Family Services (Department) filed a petition pursuant to Welfare and Institutions Code section 300, subdivisions (a), (b), and (j) alleging that K.H. came within the jurisdiction of the juvenile court based on injuries sustained by one of her siblings that were consistent with non-accidental trauma and mother's neglect in failing to obtain timely and necessary medical care for the sibling's injuries. According to the Department's Detention Report, K.H. was hospitalized following her birth and was expected to be discharged on June 1, 2010.
All statutory citations are to the Welfare and Institutions Code unless otherwise noted.
At the June 1, 2010, detention hearing, the juvenile court found that the Department had made a prima facie showing that K.H. was a person described in section 300, subdivisions (a), (b), and (j), and ordered K.H. detained in shelter care. The juvenile court ordered that mother was to receive family reunification services.
The Department filed first and second amended section 300 petitions on July 1, 2010, and October 26, 2010, respectively. At the October 26, 2010, jurisdiction hearing, the juvenile court sustained the allegations under subdivision (j) of section 300 as modified, and dismissed the allegations under the remaining subdivisions. The juvenile court declared K.H. to be a dependent of the court and found that K.H.'s physical health could not be protected without removing her from mother's physical custody. The juvenile court ordered that K.H. was to continue in her placement with her current caretakers and that mother was to receive family reunification services.
On December 23, 2010, the S.'s filed a request to be named as K.H.'s de facto parents. In their request, the S.'s stated that K.H. had lived with them and they had been responsible for K.H.'s daily care since June 2, 2010, a date shortly after K.H.'s birth. The S.'s stated that one of them was with K.H. during the day and both of them were with K.H. at night. The S.'s and K.H. spent their weekends "together for family time." The S.'s stated that they spent significant time ensuring that K.H.'s emotional needs were met and that her social development was age-appropriate. The S.'s played with K.H., read to her, talked to her, and enjoyed music and the outdoors with her. The S.'s also spent significant time with extended family. The S.'s stated that as K.H.'s primary caregivers, they knew the most about K.H.'s emotional needs and social development. The S.'s knew K.H.'s feeding habits, sleep schedule, food preferences, favorite toys, and what calmed her and made her laugh. The S.'s were "tuned" in to K.H.'s emotional and physical development.
On January 25, 2011, the Department filed an information for court officer in which it informed the juvenile court that the Department was not "offering an opinion" on the S.'s request to be named as K.H.'s de facto parents. The Department stated, however, that it believed that it was too early in the case to determine if the foster parents should be declared de facto parents.
On February 25, 2011, mother filed her opposition to the S.'s request to be appointed as K.H.'s de facto parents. Mother contended that even if the S.'s met the criteria for de facto parent status, it was too early in the reunification proceedings to grant de facto parent status. Mother stated she was in compliance with her case plan, was taking extra classes in an effort to be a better person, and had acted appropriately while visiting K.H. Mother stated that the S.'s appeared to be competing with her to gain custody of K.H. Mother argued that appointing the S.'s as K.H.'s de facto parents during the initial reunification period would interfere with her reunification efforts.
At the March 1, 2011, hearing on the S.'s request to be appointed K.H.'s de facto parents, mother's counsel explained that mother's position was not that the S.'s did not meet the criteria for de facto parent status (mother's counsel would not offer an opinion on whether the S.'s met the criteria) or that it was inappropriate to bring a de facto parent motion after the disposition. Rather, mother's position was that it was unnecessary to appoint de facto parents because mother had completed four months of reunification services, she was in complete compliance with the requirements of that process, and it appeared that she was "on her way" to reunifying with K.H. Mother's counsel stated that mother objected to the S.'s appointment as K.H.'s de facto parents because "it will interfere and has already interfered with her reunification services." Counsel for mother further stated that the purpose of a de facto parent motion was to enable de facto parents to appear as parties and protect their interest in a child. In this case, appointing the S.'s as K.H.'s de facto parents would add parties to the case to whom mother would be compared and who could "object at every step." The de facto parents would be "sitting at the table" and "presenting a competing viewpoint from mother." In counsel's view, the S.'s "clearly" wanted to adopt K.H.
Counsel for the Department noted the Department's position that it was too early in the case to appoint de facto parents. Counsel stated his belief that generally de facto parents should not be appointed while parents are in the reunification process. Counsel noted, however, that in this case concurrent planning might have "more urgency" because two of mother's other children were in permanent placement. Counsel stated that the juvenile court had the power to appoint the S.'s as K.H.'s de facto parents, and that the S.'s "certainly" met the criteria for de facto parent status.
The juvenile court asked Mr. S. why he was seeking de facto parent status at such an early stage in the case. Mr. S. responded that de facto parent status would enable the S.'s to make decisions that were in K.H.'s "interest or her health. [¶] Further, to assist in any way that we can with the proceedings possibly by providing prospective [sic]—not about the birth parents, birth mother or father whatsoever, but specifically toward the child and how her development is progressing." The trial court noted that social workers and others in the dependency system provide information about a child's progress and asked what more the S.'s could provide. Mr. S. responded, "If you forgive me for mentioning, sir, we don't see that the social workers are, so to speak, as attentive as [they] would be if they weren't so burdened with all the case load." Mr. S. stated that the S.'s "absolutely" supported mother's efforts to reunify with K.H. If, however, K.H. did not reunify with her birth family, the S.'s hoped to adopt her. Mr. S. stated that he and Mrs. S. had raised K.H. with love and that K.H. had bonded "very well" with them.
The juvenile court granted the S.'s request to be appointed as K.H.'s de facto parents, finding that the S.'s had had custody of K.H. for a substantial period of time, the S.'s had taken on the day-to-day role of K.H.'s parents, and K.H. had bonded with the S.'s. The juvenile court stated that it did not believe that granting the S.'s status as K.H.'s de facto parents would hamper mother's efforts to reunify with K.H. Mother appealed from the juvenile court's "March 1, 2011 findings and orders granting the de facto parent motion."
DISCUSSION
I. Mother's Claim That The "De Facto Parent Status Scheme" Violates A Parent's Substantive And Procedural Due Process Rights
Mother contends that the "de facto parent status scheme" is unconstitutional because it adds a party to a dependency proceeding who is adverse to a parent's interest in his or her child thus violating a parent's federal and state substantive and procedural due process rights. We hold that mother forfeited review of this issue by failing to object in the trial court on the grounds asserted on appeal and, in any event, mother's argument that the de facto parent status scheme is unconstitutional fails.
"[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] [¶] Dependency matters are not exempt from this rule. [Citations.]" (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted; In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222 ["A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court"].) The forfeiture rule applies to a claim that a party's fundamental constitutional rights were violated. (In re Seaton (2004) 34 Cal.4th 193, 198.)
Mother objected in the juvenile court to the S.'s request for de facto parent status on the ground that it was unnecessary to appoint de facto parents because mother was participating successfully in reunification services and it appeared she would reunify with K.H. The appointment of the S.'s as K.H.'s de facto parents, mother argued, would interfere with her reunification services. Mother argued that the appointment of the S.'s as K.H.'s de facto parents would add parties to the case to whom mother would be compared and who would be presenting a completing view from mother and could "object at every step." Mother did not object in the juvenile court that the "de facto parent status scheme" is unconstitutional because it deprives parents of their substantive and procedural due process rights. Mother's failure to object in the juvenile court on the same grounds asserted on appeal forfeited review of this issue. (In re S.B., supra, 32 Cal.4th at p. 1293; In re Dakota H., supra, 132 Cal.App.4th at pp. 221-222; In re Seaton, supra, 34 Cal.4th at p. 198.)
Even if mother did not forfeit review of this issue, the contention fails. The premise of mother's argument that the de facto parent status scheme violates a parent's substantive and procedural due process rights is that the scheme adds a party to the dependency proceedings who is adverse to a parent's interest. Mother argues, "Adding another party and attorney to the dependency proceeding, which potentially creates one more obstacle for the parent to face, unnecessarily infringes on a parent's fundamental liberty interest in the companionship, care, custody and control of his or her child." Mother's premise is false. "De facto parents have the right to be present at the dependency proceedings, to have retained or, at the discretion of the court, appointed counsel and to present evidence at the hearings. ([California Rules of Court,] [r]ule 1412(e).) However, the status of de facto parenthood does not give de facto parents the rights and responsibilities of parents or guardians. (In re Kieshia E. (1993) 6 Cal.4th 68, 77 [23 Cal.Rptr.2d 775, 859 P.2d 1290].) Specifically, they do not have the right to reunification services, custody, or visitation. (Id. at p. 82 (dis. opn. of Kennard, J.).)" (Clifford S. v. Superior Court (1995) 38 Cal.App.4th 747, 752.) "De facto parents are not part of any adversarial aspect of a dependency case." (In re B.F. (2010) 190 Cal.App.4th 811, 817.) Thus, the appointment of de facto parents does not, in any way, interfere with a parent's right to his or her child and the "de facto parent status scheme" does not violate a parent's substantive and procedural due process rights.
All citations to rules are to the California Rules of Court. Former rule 1412(e) has been renumbered rule 5.534(e).) Rule 5.534(e) provides, "On a sufficient showing the court may recognize the child's present or previous custodians as de facto parents and grant standing to participate as parties in disposition hearings and any hearing thereafter at which the status of the dependent child is at issue. The de facto parent may: [¶] (1) Be present at the hearing; [¶] (2) Be represented by retained counsel or, at the discretion of the court, by appointed counsel; and [¶] (3) Present evidence."
II. The Juvenile Court Did Not Abuse Its Discretion In Granting The S.'s De Facto Parent Status
Mother contends that the juvenile court abused its discretion in granting the S.'s request for de facto parent status. The juvenile court acted within its discretion.
A. Standard of Review
We review a juvenile court's ruling on a request for de facto parent status for an abuse of discretion. (In re Giovanni F. (2010) 184 Cal.App.4th 594, 602.) A juvenile court abuses its discretion when it makes an arbitrary, capricious, or patently absurd determination. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
B. Application of Relevant Principles
Rule 5.502(10) defines 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 child's physical and psychological needs for care and affection, and who has assumed that role for a substantial period." "Whether a person falls within the definition of a 'de facto parent' depends strongly on the particular individual seeking such status and the unique circumstances of the case." (In re Patricia L. (1992) 9 Cal.App.4th 61, 66.) Factors relevant to a juvenile court's determination of de facto parent status include whether "(1) the child is 'psychologically bonded' to the adult; (2) the adult has assumed the role of a parent on a day-to[-]day basis for a substantial period of time; (3) the adult possesses information about the child unique from the other participants in the process; (4) the adult has regularly attended juvenile court hearings; and (5) a future proceeding may result in an order permanently foreclosing any future contact with the adult. [Citations.]" (Id. at pp. 66-67.)
A person seeking de facto parent status must prove, by a preponderance of the evidence, that he or she falls within the statutory definition. (In re Jacob E. (2004) 121 Cal.App.4th 909, 919.) Ordinarily, de facto parent status should be granted liberally because juvenile courts "can only benefit from having all relevant information on the best interests of the child." (Ibid.)
Mother states that the S.'s wanted to be appointed as de facto parents because they believed that the social worker was overburdened with her caseload. Such a reason was an improper basis to grant de facto parent status, mother contends, because it delegated the Department's statutorily mandated reporting duties to K.H.'s caregivers. The juvenile court appointed the S.'s as K.H.'s de facto parents because they met the definition of de facto parents in rule 5.502(10), and not because K.H.'s social worker was overburdened with her caseload. In granting the S.'s de facto parent status, the juvenile court did not delegate to the S.'s any of the Department's reporting duties.
Mother contends that it was too early in the case to appoint the S.'s as K.H.'s de facto parents because mother was still receiving reunification services. De facto parent status is determined with reference to the position the putative de facto parents occupy in a child's life, not with reference to the time period a birth parent has spent in reunification. Moreover, rule 5.502(10)) provides a timeframe for appointing persons de facto parents. Rule 5.502(10) provides that a person has become a de facto parent when the person has assumed the role of parent "for a substantial period." By the time of the March 1, 2011, hearing on the S.'s request to be appointed K.H.'s de facto parents, the S.'s had had custody of K.H. since June 2, 2010, a period of nine months which is a "substantial period."
Mother further contends that it was unnecessary to appoint the S.'s as de facto parents because the S.'s could provide information to the court about K.H. without de facto parent status. De facto parent status is determined under the factors set forth in rule 5.502(10), and not by whether the putative de facto parents have alternative means of providing information to the juvenile court.
The S.'s filed a request to be appointed as K.H.'s de facto parents in which they stated that K.H. was with one of them during the day and with both of them at night. The S.'s and K.H. spent their weekends "together for family time." The S.'s took a great deal of time to ensure that K.H.'s emotional needs were met and that her social development was age-appropriate. The S.'s played with K.H., read to her, talked to her, and enjoyed music and the outdoors with her. The S.'s also spend a lot of family time with extended family. The S.'s stated that as K.H.'s primary caregivers, they had the most knowledge about K.H.'s emotional needs and social development. They knew her feeding habits, sleep schedule, food preferences, favorite toys, and what calmed her and made her laugh. The S.'s were involved in K.H.'s emotional and physical development.
The juvenile court acted within its discretion in finding that the S.'s met the definition of de facto parents. At the time of the hearing on the S.'s request for de facto parent status, the S.'s had assumed the role of K.H.'s parents on a day-to-day basis for a substantial period, fulfilling her physical and psychological needs. (Rule 5.502(10); In re Patricia L., supra, 9 Cal.App.4th at pp. 66-67.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MOSK, J. We concur:
ARMSTRONG, Acting P. J.
KRIEGLER, J.