Opinion
E066062
02-07-2017
In re Q.K. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. T.T. et al., Defendants and Respondents; T.S. et al., Movants and Appellants.
Diana W. Prince, under appointment by the Court of Appeal, for Movants and Appellants T.S. and Z.W. No appearance by Defendants and Respondents T.T. and C.K. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWJ1401016) OPINION APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge. Dismissed. Diana W. Prince, under appointment by the Court of Appeal, for Movants and Appellants T.S. and Z.W. No appearance by Defendants and Respondents T.T. and C.K. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
Movants and appellants T.S. and Z.W., former foster parents to Q.K., J.K., and K.K. (the children), appeal from an order denying their petitions under section 388 of the Welfare and Institutions Code, which sought orders placing the children in appellants' care under a direct placement order. The juvenile court granted appellants de facto parent status. However, the juvenile court concluded placement with appellants would not be in the children's best interest, and it upheld the decision by the Riverside County Department of Public Social Services (DPSS) to remove the children and place them with a prospective adoptive family.
Appellants argue the trial court erred by not considering caretaker preference when it denied their petitions. DPSS contends, inter alia, de facto parents lack standing on appeal to challenge a placement order and requests that we dismiss the appeal. We agree that de facto parents lack standing to challenge placement orders on appeal and, therefore, we dismiss the appeal.
I.
FACTS AND PROCEDURAL BACKGROUND
DPSS responded to a referral when the children's mother was arrested and booked into county jail for attempted check fraud. The children's fathers were noncustodial and failed to provide for the children. DPSS therefore placed the children in protective custody. In a petition filed with the juvenile court, DPSS alleged the children were dependent children within the meaning of Welfare and Institutions Code section 300, subdivisions (b) and (g). The petition alleged mother and the children's fathers failed to protect the children due to their substance abuse and criminal histories, and that the fathers were unable or unwilling to provide care and support for the children. The juvenile court found the children were in substantial danger to their physical and emotional health, and ordered the children be detained and placed in the custody of DPSS.
All additional undesignated statutory references are to the Welfare and Institutions Code.
Initially, all three children were placed together in one foster family home. However, due to his challenging behaviors, Q.K., who was five years old at the time, was later placed in a separate foster family home. Q.K.'s caregivers reported that he: engaged in destructive behavior when playing with toys; had enuresis (involuntary urination); was aggressive toward other children in the home; was impatient and very demanding of attention; and displayed no boundaries while at school and had placed a pair of scissors to another child's face. The social worker reported Q.K. could only count to four and had trouble identifying basic colors.
At the jurisdiction and disposition hearing, the juvenile court sustained the allegations in the amended petition, ordered that the children remain in foster care under the supervision of DPSS, and set a six-month review hearing. In a report filed for the six-month review hearing, the social worker reported J.K. and K.K. continued to be placed together in a foster home, and Q.K. remained in a separate foster home. Q.K.'s second foster family reported Q.K. continued to have behavioral problems, and the foster parents "had done all they could" for the child. Q.K. was then placed with another foster family. Q.K.'s third foster mother reported similar behaviors, but "she had put forth the effort to help stabilize the child" and agreed to provide Q.K. with "wraparound services" and to complete a medical evaluation. The social worker reported mother failed to participate in substance abuse treatment, tested positive for drugs, failed to participate in counseling and parenting courses, and had been arrested on an outstanding warrant and placed on probation. The social worker recommended the juvenile court terminate reunification services to mother and set a hearing under section 366.26 for termination of parental rights and selection and implementation of a permanent plan.
In an addendum report, the social worker reported that Q.K.'s third foster family had requested the child be placed in another home based on his behavior toward other children in the home and his need for one-on-one attention. Q.K. was then placed with T.S. and Z.W., which was the same foster home as his siblings. The social worker recommended the juvenile court appoint T.S. and Z.W. as the child's educational representatives so they could have him evaluated for special education needs.
At a contested six-month status review hearing, the juvenile court found mother had failed to make substantive progress on her case plan, it terminated mother's reunification services, and set a hearing under section 366.26 for selection and implementation of a permanent plan for the children. The court also appointed T.S. and Z.W. as Q.K.'s educational rights holders. Mother filed a notice of intent to file a petition for writ of mandate challenging the setting order (Cal. Rules of Court, rule 8.450(e)), but this court dismissed the petition when mother failed to timely file her petition and did not timely move for relief from her default.
In a report filed for the permanency hearing, the social worker reported Q.K. had been assessed and found eligible for special education services, but T.S. and K.W. had refused to sign the Individualized Education Plan (IEP). The education liaison at Q.K.'s school recommended Q.K. attend half days. The social worker recommended the juvenile court transfer Q.K.'s educational rights from his caregivers to the education liaison. The social worker expressed a concern that T.S. and K.W. had refused to sign Q.K.'s IEP. In addition, the social worker reported that, although T.S. and K.W. had expressed a willingness to adopt the children, a prospective adoptive family had been matched for all three children and was being assessed.
T.S. and Z.W. applied for de facto parent status as to all three children. The juvenile court continued the permanency hearing and conducted a postpermanency status review hearing. During the review hearing, counsel for the children informed the court that T.S. and K.W. were interested in adopting the children, but expressed her concern that Q.K.'s IEP had not yet been signed. K.W. informed the court that she had requested the IEP be revised. The court found adoption was the appropriate permanent plan for the children, set another review hearing, and set a hearing on T.S. and K.W.'s requests for de facto parent status.
DPSS filed an ex parte application for an order transferring education rights over Q.K. from his caregivers to an education representative. The social worker again expressed a concern that the caregivers had refused to sign Q.K.'s IEP. The social worker reported the caregivers had hired a paralegal who advised them to sign the IEP, but also advised they should disagree with its implementation. When the social worker asked K.W. why she would not sign the IEP, K.W. said she wanted to ensure Q.K. received all of the services he was entitled to, and not merely the services offered in the IEP. But K.W. was vague on what additional services she believed were needed. The social worker also filed an addendum report, which recommended the juvenile court deny T.S. and K.W.'s requests for de facto parent status. The social worker again expressed a concern that Q.K.'s caregivers had refused to sign the IEP. The juvenile court denied DPSS's ex parte application, and granted the requests for de facto parent status.
The children were moved from foster care to an approved adoptive home. T.S. and K.W. filed petitions under section 388 seeking an order placing the children in their care under a direct placement order. According to the de facto parents, DPSS decided to place the children with a prospective adoptive family in violation of "caretaker preference" under section 366.21, subdivision (i)(1)(D). They argued the children had already become part of the de facto parents' family, and leaving the children in their care would be in the children's best interests. DPSS opposed the petitions, contending they were moot because the children had already been removed from the de facto parents' home, the de facto parents had not made a prima facie showing that returning the children to their care would be in the children's best interests, and the de facto parents lacked standing to file a petition under section 388 in the first place.
Although the juvenile court expressed skepticism that de facto parents have standing to file a petition under section 388 for a placement order, the court set an evidentiary hearing on the petitions. After hearing testimony, the juvenile court found that placing the children with the de facto parents would not be in their best interests and denied the petitions.
The de facto parents timely appealed.
II.
DISCUSSION
DPSS argues this appeal must be dismissed because de facto parents lack standing on appeal to challenge placement orders. We agree and dismiss the appeal.
"Because the right to appeal is strictly statutory, a judgment or order is not appealable unless a statute expressly makes it appealable. [Citations.] 'Appeals in dependency proceedings are governed by section 395 . . . .' [Citations.] Section 395 provides in pertinent part that '[a] judgment in a proceeding under Section 300 may be appealed in the same manner as any final judgment, and any subsequent order may be appealed as an order after judgment.' (§ 395, subd. (a)(1); [citation].)" (In re Michael H. (2014) 229 Cal.App.4th 1366, 1373, fn. omitted.)
"Code of Civil Procedure section 902 defines 'Who May Appeal' from a judgment. (See Code Commissioners' Notes, 17B West's Ann. Code Civ. Proc. (2009 ed.) foll. § 902, p. 10.) The statute provides '"Any party aggrieved" may appeal from an adverse judgment. (Code Civ. Proc., § 902.) The test is twofold—one must be both a party of record to the action and aggrieved to have standing to appeal.' [Citation.] Thus, notwithstanding an appealable judgment or order, '[a]n appeal may be taken only by a party who has standing to appeal. [Citation.] This rule is jurisdictional. [Citation.]' [Citation.] It cannot be waived. [Citation.]" (Conservatorship of Gregory D. (2013) 214 Cal.App.4th 62, 67, italics omitted.)
"'To be aggrieved, a party must have a legally cognizable immediate and substantial interest which is injuriously affected by the court's decision. A nominal interest or remote consequence of the ruling does not satisfy this requirement.' [Citation.] The ability to appeal does not confer standing on parties not aggrieved by the order from which the appeal is taken. [Citations.]" (In re J.T. (2011) 195 Cal.App.4th 707, 717.)
"[A] de facto parent is 'not considered a parent or guardian for purposes of the dependency law. [Citations.] Therefore, the de facto parent is not entitled to all of the rights accorded to persons who occupy the status of parent or guardian.' [Citations.] A de facto parent is not entitled, as a matter of right, to custody of the child, reunification services, or visitation. [Citations.] De facto parent status merely allows a person who has assumed the role of parent of a child to participate in the court hearings and share their 'legitimate interests and perspectives' with the juvenile court as it makes decisions about the child's future care and welfare. [Citation.] Granting de facto parent status does not mean the child will be placed with the de facto parents. The status merely provides a way for the de facto parent to stay involved in the dependency process and provide information to the court." (In re Bryan D. (2011) 199 Cal.App.4th 127, 146; see In re Kieshia E. (1993) 6 Cal.4th 68, 77-78.)
"The acquisition of de facto parent status does not confer standing to appeal from any juvenile court order; rather, it confers standing to challenge only orders pertaining to those things to which the de facto parent is entitled. [Citation.]" (In re J.T., supra, 195 Cal.App.4th at p. 718.) De facto parents have the right to challenge orders affecting their limited rights in juvenile court proceedings, such as an order denying them the ability to participate in a hearing as de facto parents. (In re Crystal J. (2001) 92 Cal.App.4th 186, 190; In re Hirenia C. (1993) 18 Cal.App.4th 504, 510, fn. 2.) However, because de facto parents do not have the same rights as parents or guardians, the courts have held they lack standing on appeal to challenge various orders of the juvenile court. (E.g., In re Alexandria P. (2014) 228 Cal.App.4th 1322, 1340-1343 [de facto parents do not enjoy the same constitutional protections as parents and lack standing on appeal to challenge constitutionality of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.)]; Clifford S. v. Superior Court (1995) 38 Cal.App.4th 747, 752 [de facto parents have no right to reunification services and lack standing to challenge denial of those services].)
In In re P.L. (2005) 134 Cal.App.4th 1357, a foster mother, who was granted de facto parent status, objected to the county social services agency placing the child with a prospective adoptive family and expressed an interest in adopting the child. The juvenile court concluded the change in placement was in the child's best interest, and the foster mother appealed the placement order. (Id. at pp. 1359-1361.) This court concluded the foster mother lacked standing to appeal the placement order and dismissed the appeal. (Id. at p. 1362.)
"At the disposition hearing, legal custody was given to the director of DCS. The child was ordered physically maintained with appellant as foster mother subject to the court's supervisory powers based on the best interests of the child. [Citations.] [¶] De facto parent status does not confer the rights of a parent or even a legal guardian. [Citations.] De facto parents have limited rights that include: (1) the right to an attorney; (2) the right to be present at hearings; and (3) the right to present evidence and be heard. Specifically, they do not have the right to reunification services, custody, or visitation. [Citations.] While de facto parents are given an opportunity to participate in the proceedings, that status does not give them the rights accorded to a parent or legal guardian. [Citations.] Consequently, appellant has no legal standing to complain of the decision to place the child with the new prospective couple since she has no right to custody or continued placement as a mere de facto parent. The order changing physical custody was within the sound discretion of the court from which appellant cannot appeal because her legal rights were not impacted." (In re P.L., supra, 134 Cal.App.4th at pp. 1361-1362.)
Our decision in In re P.L. is dispositive here. As there, appellants in this case were foster parents to the children and were granted de facto parent status by the juvenile court. That status afforded them certain procedural rights to participate in the juvenile court proceedings, but it did not grant them the same rights as parents or guardians. Appellants had no right to continued placement of the children in their care and, therefore, they were not aggrieved by the order denying their petition for placement under a permanent plan. Because appellants lack standing to challenge the order, we must dismiss the appeal.
We assume without deciding that a petition under section 388 is the appropriate vehicle in the juvenile court for de facto parents to request a placement order. (See In re Matthew P. (1999) 71 Cal.App.4th 841, 848-849; In re Cynthia C. (1997) 58 Cal.App.4th 1479, 1489, fn. 8.) However, a de facto parent's ability to seek a discretionary placement order, to which he or she has no right, does not translate to standing on appeal.
III.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. CODRINGTON
J.