Opinion
E078000
08-08-2022
In re L.R., a Person Coming Under the Juvenile Court Law. v. M.B. et al., Appellants. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Jesse J. McGowan, under appointment by the Court of Appeal, for Appellants. Tom Bunton, County Counsel, and Dawn M. Martin, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J280738. Annemarie G. Pace, Judge. Affirmed in part, reversed in part, with directions.
Jesse J. McGowan, under appointment by the Court of Appeal, for Appellants.
Tom Bunton, County Counsel, and Dawn M. Martin, Deputy County Counsel for Plaintiff and Respondent.
OPINION
RAPHAEL J.
Appellants M.B. and M.B. Jr. are mother and daughter to one another, and for more than two years they served as the foster parents of the dependent child L.R. They had been certified as foster parents through a foster family agency. They lost that certification, however, so plaintiff and respondent San Bernardino County Children and Family Services (CFS) had to move L.R. to a different placement.
Within about two months, appellants were recertified as foster parents through a different foster family agency. Nevertheless, CFS decided not to return L.R. to their care. Here, appellants challenge trial court rulings denying their request for an order that L.R. be placed back with them and denying their request for de facto parent status. We affirm the trial court's decision regarding L.R's placement, but find it was error to deny appellants de facto parent status.
Undesignated statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
In April 2019, when L.R. was about six months old, she was removed from parental care and placed with appellants. Reunification efforts were unsuccessful. In a March 2021 unpublished opinion, we dismissed L.R.'s mother's appeal from the juvenile court's order terminating parental rights. (In re L.R. (Mar. 9, 2021, E075537 [nonpub. opn.].)
On April 29, 2021, CFS received a child abuse referral regarding two other foster children placed in appellants' home, alleging "emotional abuse, general neglect, physical abuse, and sexual abuse."
On May 25, 2021, the director of the foster family agency that had certified appellants contacted a CFS social worker, stating that appellants were "being decertified as an approved home." The director stated that it had been "discovered" that M.B. had allowed "her boyfriend" to move into the home without informing or obtaining approval from CFS or the foster family agency. Due to "this and many other concerns," the administrator was decertifying appellants. Moreover, when the social worker tried to contact appellants to have them bring L.R. to the CFS office to place her in another home, she learned that appellants were in Mexico and L.R. was in respite care. Appellants had not informed the foster family agency or CFS of the trip, or where L.R. would be during the trip. Due to the decertification, L.R. and the other foster children who had been placed with appellants needed to be removed and placed elsewhere.
On May 25, 2021, CFS removed L.R. (and the other foster children placed in the home) from appellants' care. Appellants objected, and a contested removal hearing was held, after a continuance, on July 7, 2021. On that date, appellants' counsel represented that appellants were working on approval by a new foster care agency, but they had not yet been recertified. The juvenile court granted CFS's removal request and gave CFS authorization to place L.R. in "any appropriate placement." The court specified that CFS had the authority to return L.R. to appellants' home if they were recertified.
CFS's most serious concerns were allayed by further investigation, though appellants had violated some rules. The allegations of sexual abuse, emotional abuse, and physical abuse were determined to be unfounded. The general neglect allegations were found only inconclusive, not unfounded, based in part on there being some evidence that M.B. "'yells'" at the children. That information was disputed, however, by some of the children and by appellants.
Additionally, appellants had not obtained prior clearance for a "man" named Jose who was "in the home" to have contact with the children. It was "reported that Jose transported one of the teenage dependents living in the home unaccompanied," which L.R.'s social worker viewed as a "major concern as this man was never cleared to care [for] any dependents." It is unclear from our record, however, whether that report was ever confirmed. Regardless, the children told an investigator that Jose "did not abuse or neglect them." Moreover, Jose, it turned out, was not M.B.'s boyfriend, as the foster family agency director had stated, but instead a close (platonic) family friend. He was not living in appellants' home-he is married, and lives with his wife and children-but he had stayed overnight a handful of times with appellants when visits ran late, because he lives a substantial distance away.
A social worker employed by the foster family agency, who did not have "any concerns" about appellants, had been aware Jose "would frequently visit" the home. Appellants had agreed to the social worker's suggestion that Jose undergo a background check. On May 10, 2021, Jose submitted to Live Scan fingerprinting, which appellants' counsel represented to the juvenile court he passed.
"Live Scan" refers to an electronic fingerprinting system used to check an individual's criminal background. (In re M.L. (2012) 205 Cal.App.4th 210, 215, fn. 3.) Jose's actual background check results are not in our record. Appellants had been instructed that the agency should be given advance notice of the "name and information" of overnight visitors, which they had not done. The Live Scan background check was not required unless the visitor was staying for a month.
As to the events of May 25, 2021, when CFS and the foster care agency were surprised to learn that the children were in respite care and appellants were in Mexico, the children had been left with "an approved alternative caregiver," the son of M.B. and brother of M.B. Jr., who was also a licensed foster care provider. Appellants had traveled to Tijuana, Mexico for an appointment and returned home the same day.
Appellants had been instructed that someone could "babysit the foster child for a few hour[s] and maybe overnight and the person does not have to be fingerprinted . . . But you would have to first inform the agency and the county social worker and give a name and identification of the person." Thus, it seems the rules violation was the lack of notice to the agency and CFS that the children were being left with an alternate caregiver, rather than the choice of alternate caregiver.
On July 26, 2021, appellants were recertified to care for foster children through a new foster family agency. On July 27, 2021, appellants filed a section 388 petition, requesting that L.R. be returned to their care. On the same date, they also filed a request to be recognized as de facto parents of L.R.
See In re Cynthia C. (1997) 58 Cal.App.4th 1479, 1481, 1485, 1489-1490, fn. 8 [§ 388 petition is proper procedure to use when foster parent seeks return of dependent child; it seeks change of court order giving social service agency discretion to decide placement]; c.f. In re P.L. (2005) 134 Cal.App.4th 1357, 1359 [foster mother, who was de facto parent, lacked standing to appeal from court order removing child from her home and placing the child in a prospective adoptive home].)
On August 9, 2021, L.R. was placed in a new prospective adoptive home, her second placement since removal from appellants' care.
On August 18, 2021, CFS returned to appellants' care another child who had been removed from them on May 25, 2021, a teenager on a plan of legal guardianship. That child had been vehemently opposed to removal from appellants' home, to the point of refusing any interim placement and staying at the CFS office while appellants were seeking approval by a new foster family agency. That child's social worker agreed that, under the circumstances, it was "in [the child's] best interest, and in line with her desire, to remain in [appellants'] home and continue with their plan of legal guardianship."
In an interim report, and again at an August 30, 2021 hearing, L.R.'s social worker opposed appellants' section 388 petition. Notwithstanding appellants' recertification as foster parents, the report expressed continued "major concern" regarding appellants "ability to make decisions and to follow not only their agency rules, but CFS requirements to ensure the safety and well-being of all dependents in their home." At the hearing, CFS asked that the court make no orders regarding placement because it had not completed its investigation of appellants' assertions in their section 388 petition. The court continued the matter, ordering appellants to have visitation with L.R. in the meantime.
In subsequent briefing, CFS continued to oppose returning L.R. to appellants' care, citing appellants' "lapses in judgment and inability to follow the rules, despite [signing] paperwork to abide." CFS also cited appellants' failure to express "remorse" or "take any responsibility" for their roles in their decertification. CFS noted that L.R.'s needs were different from those of the teenager who had been placed back with appellants in a legal guardianship, at her own insistence, while L.R. "needs an adoptive home and she is of an age where she cannot speak for herself in the [event] of any future judgment lapses" by appellants.
At the hearing on appellants' requests on October 29, 2021, appellants' counsel attributed appellants' loss of certification primarily to "inappropriate conduct" by the director of their first foster family agency, emphasizing that the allegations against appellants had been found, for the most part, "absolutely unjustified and unfounded."Appellants' counsel argued that the best interests of the child required returning her to "the place where she still believes is home." Minor's counsel took no position, stating that there was "no indication that anything was wrong in [appellants'] home," but also finding nothing wrong with her current placement. CFS continued to oppose returning her to appellants' care and represented that L.R. "appears to be doing fine" in her current placement. The juvenile court denied appellants' section 388 petition, finding that CFS had not abused its discretion regarding L.R.'s placement.
The evidence submitted by appellants in support of the section 388 petition included a letter from a former employee of appellants' first foster family agency, who stated that he had "never had an issue or concerns" about appellants' home or the children in their care. He stated that he was no longer an employee of that foster family agency because of the behavior of the agency's director. The evidence also included several letters testifying to appellants' excellent care of other foster children, but bad experiences with the foster family agency.
After rejecting appellant's section 388 petition, the court heard argument regarding their request for de facto parent status. Appellants' counsel argued that appellants still met "each of the qualifications" for de facto parent status. Both CFS and minor's counsel opposed the request on the ground that L.R. had already been out of appellant's care for four months. The court denied the request, reasoning that "at the time it was filed they probably did qualify as de facto parents. But I think at this stage, with the child having been out of their care now for several months, that they do not occupy that role any longer."
II. DISCUSSION
Appellants contend that the juvenile court abused its discretion by declining to order L.R. to be placed back in their care and by denying their request for de facto parent status. We find the juvenile court did not abuse its discretion when it refrained from disturbing CFS's placement decision. It erred, however, by denying appellants' request for de facto parent status.
A. Placement
Once a dependent child is freed for adoption, the agency to which the child is referred for adoption is responsible for the child's custody and supervision. As a general proposition, the agency-in this case, CFS-is entitled to the "exclusive care and control of the child at all times until a petition for adoption . . . is granted." (§ 366.26, subd. (j); Fam. Code, § 8704, subd. (a); but see § 366.26, subd. (n)(1) [in certain circumstances, juvenile court may designate current caretaker as prospective adoptive parent].) "An interim or adoptive placement may be terminated at the [a]gency's discretion at any time before the petition for adoption is granted." (In re Shirley K. (2006) 140 Cal.App.4th 65, 71; but see § 366.26, subd. (n)(3) [describing process for removing child from caretaker designated as prospective adoptive parent by the juvenile court under § 366.26, subd. (n)(1)].)
"The agency's discretion regarding interim and adoptive placement is not unfettered." (In re Shirley K., supra, 140 Cal.App.4th at p. 72.) The juvenile court retains jurisdiction over the child to, among other things, "ensure the adoption is completed as expeditiously as possible and to determine the appropriateness of the placement." (Ibid.) Nevertheless, the juvenile court should "intervene[] in placement decisions after parental rights have been terminated only in exceptional circumstances." (§ 366.28, subd. (a).) When reviewing the agency's placement decision for abuse of discretion, the trial court decides whether the agency "'acted arbitrarily and capriciously, considering the minor's best interests.'" (In re Shirley K., 140 Cal.App.4th at p. 72, italics omitted.) The juvenile court does not make an "independent judgment" of the minor's best interests. (Ibid.) Rather, the issue is whether the agency abused its discretion by making a placement decision that "is patently absurd or unquestionably not in the minor's best interests." (Department of Social Services v. Superior Court (1997) 58 Cal.App.4th 721, 734.) Absent such a showing, "the juvenile court may not interfere and disapprove of the minor's placement, thereby requiring that the minor be relocated to another home." (Ibid.) We review the juvenile court's order denying a section 388 petition to change the dependent child's placement for abuse of discretion. (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1444-1445.)
There are various grounds to question whether CFS correctly evaluated L.R.'s best interests. Although appellants broke certain rules that are (appropriately) in place to facilitate the oversight of foster parents, CFS's investigations concluded L.R. had never in fact been abused or neglected while in appellants' care. L.R.'s counsel observed "no indication that anything was wrong in [appellants'] home," and there is scant evidence in support for any other inference. L.R. was in appellants' care for more than two years, and thus the vast majority of her life. (See In re Shirley K., supra, 140 Cal.App.4th at p. 72 [acknowledging child's "compelling interest in remaining with the only family she had ever known and with whom she had a reciprocal bonded relationship of unconditional love and affection"].) It would have been reasonable for CFS to have concluded that L.R. could safely be placed back with appellants, and that such a course of action would be in her best interests in light of their previously established bond, the existence of which is undisputed.
Nevertheless, we cannot say that CFS's decision to leave L.R. with her current prospective adoptive parents was "patently absurd or unquestionably not in [her] best interests." (Department of Social Services, supra, 58 Cal.App.4th at p. 734.) It is undisputed that when appellants were decertified by the foster family agency, no matter the reason, CFS had to remove all foster children from their care. (See § 361.2, subd. (e)(8) [after removal, child may be placed "[w]ith a foster family agency . . . to be placed in a suitable family home certified or approved by the agency, with prior approval of the county placing agency" (Italics added.)] By the time the juvenile court heard appellants' section 388 petition, L.R. had already been settled into her new placement for several months and was, according to the limited information in the record, doing well. Thus, to grant appellants' request would mean disturbing a current, stable placement with prospective adoptive parents in favor of a return to a previous placement that had already proven to be unstable once. (See In re Marilyn H. (1993) 5 Cal.4th 295, 309 ["Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability"].) And it was not unreasonable for CFS to lose some trust in appellants, given the rules violations that it discovered, even though concerns about abuse proved to be unfounded. Thus, the trial court did not act outside its discretion when it refrained from disturbing CFS's exercise of discretion regarding L.R.'s placement, and we thereby cannot reverse its decision.
Appellants' arguments to the contrary notwithstanding, In re Shirley K does not require a different result. In that case, the agency removed Shirley K. from the care of grandparents with whom she had lived for about 20 months, since she was six weeks old, even though the record showed the grandmother took prompt and appropriate action to protect her from the substance abuse issues of a teenager (the grandparents' daughter and thus Shirley K.'s's aunt) who lived in the house. (In re Shirley K., supra, 140 Cal.App.4th at p. 74.) A bonding study showed that Shirley K. was significantly attached to her grandparents and would experience "a psychologically damaging loss" if she did not at least maintain visitation with them. (Id. at p. 70.) Both the psychologist who conducted the bonding study and minor's counsel found the social worker to be unfairly biased against the grandparents, "overstat[ing]" problems in the house and, even after one adoptive placement with a non-relative fell through, refusing to consider any information that might have shown the grandparents could safely resume caring for the child. (Id. at pp. 69, 73-74.) Moreover, the trial court apparently failed to recognize that the grandparents were not asking for a delay in permanency to allow a period of reunification, but rather a determination of whether their circumstances were already "sufficiently changed to permit Shirley's return or to permit liberal, unsupervised visitation." (Id. at p. 73.) Thus, the Court of Appeal found the trial court "underplayed its role in determining whether the [a]gency properly considered the child's best interest in making critically important posttermination placement decisions," and remanded for the trial court to consider whether the grandchild's "interests are best served by an order returning her to [the g]randparents' care or, in the alternative, by a grant of liberal visitation." (Id. at pp. 74-75)
The circumstances here are different. CFS had no choice but to remove L.R. from appellants' care when they were decertified as foster parents. Even though allegations of abuse were determined to be unfounded, some of the same factors that led to the decertification arguably remained concerns, given what CFS perceived as appellants' failure to express "remorse" or "take any responsibility" for breaking foster family agency and CFS rules designed to protect foster children. Although it is reasonably inferred that L.R. must have undergone a period of adjustment after her removal from appellants' care, there is no basis in evidence to conclude either (1) she must have suffered the same sort of psychological trauma from removal as Shirley K., or (2) that removing her from her current placement with different prospective adoptive parents would not inflict yet another trauma. The juvenile court correctly rejected appellants' contention that it should independently determine what placement would be in L.R.'s best interests. Its conclusion that CFS did not abuse its discretion properly rested on consideration of whether CFS acted arbitrarily or capriciously, considering L.R.'s best interests (without quite putting it in those words). The record does not support the conclusion that CFS refused even to consider the possibility of returning L.R. to appellants' care, as did the social worker in In re Shirley K., only that it decided that would not be the best course of action.
The trial court commented: "I believe that the standard is the [abuse of] discretion based on all of the case law which I reviewed.[¶] Because we are past that removal hearing [. . .] at this point it is in the discretion of the [d]epartment to choose the placement. And I need to review that exercise of discretion for abuse, and I just can't find it on the facts of this case that [L.R.] . . . is in a concurrent planning home for adoption. She seems to be doing fine in that placement. And I think she was doing fine in the [placement with appellants] as well. [¶] I wish it hadn't come to this, but I can't find on this record an [abuse of] discretion. [...] So I will deny the 388 and leave [L.R.] in her current placement as I find no [abuse of] discretion."
We also are not persuaded by appellants' arguments based on CFS's placement decisions regarding children other than L.R. who were previously in appellants' care. As the juvenile court observed, a teenager in a legal guardianship who has strong views of her own about where she wants live is different from a three year old who needs a permanent adoptive home. The circumstance that CFS returned the teenager to appellants' care does not show that the different decision regarding L.R. was arbitrary or capricious.
We find that the juvenile court did not abuse its discretion by deciding to refrain from disturbing CFS's placement decision regarding L.R. On that basis, we will affirm the denial of appellants' section 388 petition.
B. De Facto Parent Status
"The concept of de facto parent has been judicially created to recognize limited rights in dependency cases for a person who has been found by the juvenile court to have assumed, on a day-to-day basis, the role of a parent, fulfilling the child's physical and psychological needs." (In re Leticia S. (2001) 92 Cal.App.4th 378, 381.) Our Supreme Court has acknowledged that a de facto parent "may, in time, acquire an 'interest' which is 'substantial' in the 'companionship, care, custody, and management' of the child." (In re Kieshia E. (1993) 6 Cal.4th 68, 75.) Nevertheless, a de facto parent is not entitled "to reunification services, visitation, custody, [or] continued placement of the child." (In re A.F. (2014) 227 Cal.App.4th 692, 700.) Rather, de facto parent 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 Brianna S. (2021) 60 Cal.App.5th 303, 314 ["Designating a person as a de facto parent gives that person 'procedural rights' in the ongoing dependency proceedings, such as the right to be present at hearings, to be heard and to retain counsel, but de facto parent status does not grant the person any substantive rights to 'reunification services, . . . custody, [or] continued placement of the child'"].)
"The factors courts generally consider for determining 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 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 [between the adult and the child.]'" (In re Bryan D., supra, 199 Cal.App.4th at p. 141.) "De facto parent status is ordinarily liberally granted on the theory that a court only benefits from having all relevant information on the best interests of the child. However, the determination depends on the specific circumstances of each case." (Ibid.)
"A person requesting de facto parent status has the burden to show by a preponderance of the evidence he or she qualifies for that status." (In re Abigail L. (2022) 75 Cal.App.5th 169, 178.) "We review a juvenile court's decision denying a request for de facto parent status for an abuse of discretion." (Ibid.)
CFS has not disputed the juvenile court's observation that appellants "probably did qualify" as de facto parents when they filed their request. But it was several months before the juvenile court heard the matter, and during that time L.R. was not in appellants' care. On that basis, the juvenile court concluded appellants "do not occupy that role [of de facto parent] any longer." Recent authority suggests that it was error for the juvenile court to assume, based on the passage of only a few months' time, that appellants no longer qualified as de facto parents. In In re Abigail L., supra, 75 Cal.App.5th at p. 169, the child had been out of the care of the former foster parent seeking de facto parent status for more than a year before the denial of her request for de facto parent status could be considered on appeal. (Id. at pp. 179-180.) Nevertheless, the Court of Appeal reversed the juvenile court, directing it to grant the request. (Id. at p. 180.) In rejecting the argument that the passage of time rendered any error harmless because of the time the child had been out of the former foster parent's care, the Court reasoned that the juvenile court could decide how much weight, if any, to give any evidence offered by the former foster parent in light of that circumstance. (Id. at pp. 179180.) In the Court's view, however, unless and until the responsible department proves, on a noticed motion and by a preponderance of the evidence, that the dependency was terminated or a changed circumstance no longer supported the status, the former foster parent had the right to present her evidence, along with the other procedural rights afforded de facto parents. (Id. at p. 180.) Similarly, the juvenile court here should not have assumed that the factors that qualified appellants as de facto parents when they filed their request no longer applied, just because some time had passed since L.R. was in their care.
The juvenile court did not have the benefit of In re Abigail L.'s reasoning, as the opinion issued after the ruling on appellants' request for de facto parent status.
CFS argues that In re Abigail L. is distinguishable on the ground that the former foster parent there filed requested de facto parent status before the child was removed from her care. It is not apparent, however, why this distinction should make a difference. (See Cal. Rules of Court, rule 5.534(a) ["On a sufficient showing, the court may recognize the child's present or previous custodian as a de facto parent . . ." (Italics added)]; In re Abigail L., supra, 75 Cal.App.5th at p. 177 [quoting rule 5.534].) CFS suggests that L.R., unlike Abigail L., must not have a continuing bond with appellants since the evidence shows she "has had no difficulties adjusting to her new placement." In our view, CFS's conclusion here does not follow from its premise; as many a child with a beloved stepparent would attest, bonds that develop with a new parent do not necessarily diminish previously established parental bonds, and the same goes for de facto parents. (See also Fam. Code, § 7612, subd. (c) [allowing recognition of more than two parents in appropriate situations].) CFS names as the "most important distinction in the two cases" the circumstance that "appellants' actions warranted the removal of [L.R.] from their care," whereas Abigail L.'s new placement "was not the result of any actions by the foster mother other than a preference to place [her] with her sibling." The most serious allegations against appellants, however, were determined to be unfounded, and only serious misconduct, not mere negligence, will disqualify a person from de facto parent status. (See In re Bryan D., supra, 199 Cal.App.4th at pp. 142-146 [distinguishing behavior "fundamentally inconsistent with the role of a parent" from merely negligent behavior].)
We conclude that the juvenile court abused its discretion by denying appellants' request for de facto parent status. Of course, our ruling is based on the record before us, and the trial court is not precluded from revisiting the matter based on later circumstances.
III. DISPOSITION
The denial of appellants' section 388 petition regarding L.R.'s placement is affirmed. The order denying appellants' request for de facto parent status is reversed, and the trial court is directed to enter a new order granting the request.
We concur: RAMIREZ P. J., McKINSTER J.