Opinion
H045306
06-28-2018
In re D.L., a Person Coming Under the Juvenile Court Law. SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. R.K., Defendant and Respondent; D.C., Objector and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 16JU00300)
In September 2016, the Santa Cruz County Human Services Department (Department) filed a petition under Welfare and Institutions Code section 300, subdivisions (b)(1), and (j) relative to an infant boy, D.L. (the minor). The Department alleged that the mother, R.K. (mother), and the father, D.L. (father), had a history of substance abuse, and the minor was born with controlled substances in his system. The Department removed the minor from the custody of mother and father (collectively, parents) and he was placed in a foster home with D.C. and B.C.
Further statutory references are to the Welfare and Institutions Code unless otherwise stated.
The juvenile court sustained the allegations of the petition in November 2016 and ordered that parents receive family reunification services and supervised visitation. At the six-month review hearing in April 2017, the court granted the previously filed request by D.C. and B.C. that they be deemed the minor's de facto parents. (Hereafter, D.C. and B.C. are sometimes referred to collectively as de facto parents.)
At the 12-month review hearing in November 2017, the Department—after originally recommending termination of services for both parents—concluded that mother should be offered additional services, based upon her performance under the case plan. D.C. opposed the continuation of mother's services and inquired of the court as to "when [she] would be [given] the opportunity [to] . . . present evidence to show that this is not an appropriate recommendation." The court, having received the Department's reports, and the caregiver information provided by de facto parents, granted mother additional reunification services, finding that she had made substantial progress in mitigating the causes and concerns that had resulted in the minor's removal. The court set an 18-month review hearing for March 27, 2018.
D.C. appealed the order after the 12-month review hearing. She argues that, as de facto parents, she and B.C. have recognized rights that included the right to participate in an evidentiary hearing and the juvenile court deprived them of their procedural due process rights when it failed to conduct such hearing at the 12-month review stage. The Department and mother respond that D.C. lacks standing to assert her claims of error. Mother asserts further that the issues in the appeal are moot. And both respondents argue that, even were the merits of D.C.'s appeal considered, there was no error.
We conclude, after careful consideration of the parties' respective positions and the record, that it is a close question whether D.C. has standing to bring this appeal. Because, however, we determine that the issues presented are moot, we do not decide whether D.C., under the relevant circumstances presented here, has standing. We therefore dismiss the appeal.
I. FACTS AND PROCEDURAL HISTORY
A. Petition and Detention Order (September 2016)
On September 26, 2016, the Department filed a petition on behalf of the minor under subdivisions (b)(1) and (j) of section 300. The Department alleged, under subdivision (b)(1) of section 300, that the minor was at substantial risk of suffering severe emotional damage due to (1) mother's history of abuse of controlled substances, including benzodiazepines, methamphetamine, and marijuana, (2) father's history of abuse of controlled substances, including methamphetamine, marijuana, and hallucinogens; and (3) mother's untreated mental health issues that impacted her ability to provide adequate food, clothing, shelter, or medical treatment for the minor.
Mother used methamphetamine, marijuana, and nonprescribed valium while pregnant with the minor. She reported that she had used methamphetamine every few days throughout her pregnancy, and that she had "last used methamphetamine and valium 'a few days' before she gave birth to her son." The minor was born with controlled substances in his system and was suffering from withdrawal symptoms that included respiratory distress and an inability to take food. He was placed in the hospital's neonatal intensive care unit. After giving birth to the minor, mother tested positive for benzodiazepine, amphetamines, and cannaboids.
Father used controlled substances with mother while she was pregnant with the minor. Father was homeless at the time of the petition's filing, supported himself through the commission of criminal acts, and was a registered sex offender
The Department alleged further that, under subdivision (j) of section 300, the minor's half-sibling, C.K., was previously abused or neglected within the meaning of section 300; C.K. was adjudicated a dependent child by the Santa Cruz County Superior Court (juvenile court) in September 2009. Mother was provided with court-ordered services. Ultimately, in April 2014, the superior court (family court) awarded sole legal and physical custody of C.K. to her father.
On September 27, 2016, the juvenile court found that a prima facie showing had been made that the minor came within section 300. It ordered the minor detained and that temporary placement be vested with the Department and ordered supervised visitation of at least three times per week for parents.
B. Jurisdiction/Disposition Report and Hearing (November 2016)
In its October 2016 jurisdiction/disposition report, the Department advised that the minor had been discharged from the hospital on October 1, 2016, and he had been placed with a foster family, D.C. and B.C, where he appeared to be adjusting "with no observable mental or emotional changes." Despite having been born drug-exposed, there were no medical or developmental concerns as of the time of the Department's report.
Mother, after testing positive for drugs on September 20 and 21, 2016, had 12 negative blood tests between September 23 and October 19. She was "actively engaged in services at Janus Perinatal inpatient treatment" and had "expressed a strong desire to never use drugs again."
After the minor's discharge from the hospital, father and mother jointly visited him under supervision on nine occasions between October 4 and October 21. Both were actively engaged with their child and were receptive to information about caring for him, but needed little or no ongoing instruction during the visits.
On November 1, 2016, the Department filed an amended petition eliminating the allegation that mother had untreated mental health issues that impacted her ability to care for the minor. On the same date, the court sustained the allegations of the amended petition, and it declared the minor to be a dependent of the court in out-of-home placement. The court found the case plan proposed by the Department to be necessary and appropriate, ordered that family reunification services be provided to parents, and ordered supervised visitation for both mother and father a minimum of three times per week. It further ordered that mother submit to a psychological evaluation.
C. De Facto Parent Status Request (March 2017)
In March 2017, D.C. and B.C. filed a request to be appointed the minor's de facto parents. They explained that they had been the minor's caregivers for the five months since his release from the hospital. B.C. worked full time and D.C. stayed home full time with the baby, allowing her to care for him, to work on his in-home occupational therapy exercises, and to take him to appointments. B.C. and D.C. stated they "would whole-heartedly welcome [the minor] if adoption [became] an option."
D. Six-Month Review Report, Hearing and Order (April 2017)
1. Department's Report
On March 30, 2017, the Department filed a report in anticipation of the six-month review hearing. The Department reported that although parents had "completed a few of their case plan activities, there ha[d] been a lack of follow[-]through with crucial aspects such as substance abuse testing, treatment and individual counseling. [Parents had] also missed a significant [number] of visits with their son throughout this reporting period."
Mother had been referred to Janus Perinatal for her substance abuse issues and had completed the three-month program on December 20, 2016. Thereafter, mother declined the Department's suggestion that she enroll in a sober living environment because she did not want to leave father homeless by himself. Mother advised the Department that she would enroll in Sobriety Works as an outpatient, but had failed to do so. In February 2017, mother again advised the Department that she intended to enroll at Sobriety Works; although she and father had a scheduled intake date thereafter, they did not follow through with it.
Mother drug-tested negative during her stay at Janus Perinatal from September 20 to December 20, 2016. After leaving Janus Perinatal, she was referred to Doctors on Duty for follow-up drug testing, but she had not gone forward with such testing.
It was reported that in October 2016, mother was referred to La Manzana Community Resources. Mother completed a four-week intensive early parenting education class. Mother had also been participating regularly in the Leaps and Bounds program.
Mother had submitted to an evaluation by Deborah Vitullo, Clinical Psychologist, on December 16, 2016. Dr. Vitullo recommended that mother receive drug and alcohol treatment and testing, as well as "individual therapy focused on underlying characterological/personality disorder issues."
The court had previously ordered that parents receive supervised visitation three times per week. The Department reported that parents had visited fairly consistently with the minor up until January 4, 2017. Parents either no-showed or cancelled on 10 occasions between January 4 and February 27, 2017.
The Department reported that the minor was healthy and had appeared to adjust well to his foster home. The foster home was reportedly a concurrent home.
2. Six-Month Review Hearing
The court conducted a six-month review hearing on April 18, 2017. Neither father nor mother appeared at the hearing. The court adopted the recommendations of the Department and found the case plan to be appropriate. It ordered family reunification to continue, cautioning that if parents failed to participate in any court-ordered treatment program or failed to cooperate or use services provided in the case plan, services might be terminated. The court granted the prior request of D.C. and B.C. and found them de facto parents of the minor.
E. Request to Change Order (May 2017)
In May 2017, the Department filed a request to change court order pursuant to section 388. It stated that the March 30, 2017 case plan approved by the court at the six-month review hearing "did not include activities recommended by psychological evaluator." The attached, proposed case plan referenced mother's completed psychological evaluation and required her consistent "[participation] in long-term individual therapy." The court granted the section 388 petition in June 2017, and ordered the case plan "modified to include individual counseling regarding parenting issues to mother and as outlined in the psychological evaluation."
F. 12-Month Review Report, Hearing and Order (November 2017)
1. Department's Report
In its report filed September 26, 2017, the Department advised that mother and father were not at the time an intact couple and that "[i]n the past, their codependence ha[d] stunted their ability to prioritize their child and follow through with their case plan activities." Mother had separated from father in April 2017 and had moved into a sober living environment. She had contact with father in June and had relapsed for two days. She returned to her sober living home after having tested clean, and she reported that she had not had contact with father since her June relapse. Mother completed the Intensive Outpatient Program on September 5, 2017, and had been attending the Aftercare Program each Monday. She also attended 12-step meetings and Codependency Anonymous meetings.
After entering the sober living environment on April 26, 2017, mother had tested negative for all substances, except for the period of her June relapse. She had 28 negative tests between April 30 and August 5, 2017, with one positive test for methamphetamine on June 25.
Mother advised the Department in late August that finding housing was one of her biggest barriers to reunifying with the minor. Mother also stated that finding work had been difficult, but she had obtained a job two evenings a week cleaning a school and also assisted a friend in cleaning houses once a week.
After mother completed a psychological evaluation in December 2016 and after Dr. Vitullo sent her report to the Department in January 2017, mother was referred to the Parents Center for individual counseling. Mother did not inform the Department social worker until April 2017 that she was not comfortable receiving services at the Parents Center and requested a different referral. After being referred to a private therapist, Katherine Zwick, and after missing two appointments, Mother met with Ms. Zwick on June 19 and on five subsequent occasions.
The Department reported that mother had met weekly with a social worker from Families in Transition since early June 2017 and that she continued to work on her parenting skills through the Leaps and Bounds organization. The Children's Services coordinator reported that mother was "very intelligent and [made] good connections between concepts regarding early childhood development [and] . . . respond[ed] quickly to new information and direction."
Until late April 2017, mother and father visited the minor together but missed many visits. Because mother did not confirm her appointment two hours before the scheduled visit, she was considered a no-show on eight occasions between May 8 and July 18, 2017. She was also reported to have had "challenges with regulating herself in visits and prioritizing her son's needs." She became consistent with her visits in late July 2017 and was able to transition in late August to loosely supervised visits. The Department reported that mother had "worked hard to attune to her child's needs and continue[d] to arrive to visits on time, prepared with all of the necessary items for the child and open to feedback from the visit supervisor regarding the child's needs."
The Department reported that the minor was living in a concurrent foster home. It was apparent that he had "adjusted well to his current foster home with no observable mental or emotional challenges. . . . [The foster mother reported] that [the minor] often struggle[d] transitioning from visits back to his regular schedule." The Department stated that it was continuing to contact family members to assess the minor's potential placement with them.
It was concluded by the Department that parents had "become much more engaged in their case plan activities and [had] been visiting more consistently with their child." It noted that, although it had taken time, "[mother had] demonstrated immense behavioral change in this reporting period by recognizing the codependence between her and [father] and separating herself from him in order to better herself and maintain her sobriety." The Department concluded that although mother had made "great strides with her services and visitation," it had been a slow process and it was "unable to confidently report that the child can safely be returned to her care at this time." It stated that notwithstanding mother's progress, it could not be determined whether the positive "changes [could] be sustained by [mother] over time and the safety risks to the child mitigated." The Department therefore recommended that services to mother and father be terminated and that the court set a selection and implementation hearing pursuant to section 366.26.
2. Caregiver Report
De facto parents filed a caregiver information form on October 2, 2017. They reported that the minor was healthy overall and had a healthy appetite. He had progressed in occupational therapy and was scheduled for a final review in October 2017. The minor's parents had attended only one of his medical appointments in the prior six months and had not attended any occupational therapy sessions between January and June 2017.
De facto parents advised that the minor recognized both parents and was "agreeable" when he was left for visits. But, de facto parents reported, the minor "has reacted very negatively to nearly all of his visits over the last 6+ months. . . . [The minor] acts like a totally different child on visit days than on non-visit days. His reactions to visits have gotten worse as time goes by rather than improving."
De facto parents reported further that the Department had been diligent in providing reunification opportunities for parents and that D.C. and B.C. had done their best to support reunification. They requested that reunification services be terminated and that they be given consideration as the permanent home for the minor.
3. 12-Month Review Hearing
The 12-month review hearing, originally set for October 3, 2017, was ultimately continued for a November 7 settlement conference and a contested hearing on November 13. At the November 7 hearing previously scheduled as a settlement conference, the Department advised the court that it had changed its recommendation, concluding that, based upon mother's performance over the prior six months with respect to substance abuse treatment, testing, family counseling, and visitation, she should continue to receive reunification services. The Department reiterated its recommendation that father's services should be terminated, and father agreed to submit the matter.
D.C., who was unrepresented, expressed her opposition to the Department's recommendation to continue services for mother. She questioned "the legality" of a continuation of services and "wonder[ed] what the factual basis" was for doing so given what she and her husband had seen as caregivers of the minor for over one year. Mother's counsel objected, stating, "[T]his is not an evidentiary hearing." D.C. responded: "And that would actually be my question is when would be the opportunity where we could present evidence to show that this is not an appropriate recommendation? Which is what we were expecting to do at the trial."
Mother's counsel then argued that "the de facto parents do not have substantive rights. They do not have a right to request a contested hearing. They're always to provide information to the Court about the child, which they can do with the approved Judicial Council form for caregiver information to the Court." While not expressly agreeing with the statement of mother's counsel, the court effectively agreed by stating: "Yeah. And so, it's really a difficult role that caregivers play in this type of situation. And you heard from [minor's counsel] with respect to what makes it so difficult in terms of removing children from birth parents who are showing substantive progress in their case plans and what a difficult balance it is. I am authorized by statute to do that." The court further acknowledged that it was a "difficult day" for de facto parents. The court stated that it understood their "frustration," expressed sincere gratitude for their sacrifice in caring for the minor, and it recommended that they retain counsel.
The court ordered that mother continue to receive services, finding she had made substantial progress in mitigating the causes and concerns that resulted in the minor's removal and that "the additional evidence concerning mother's sobriety . . . [was] very convincing." The court terminated father's services, finding that he had made minimal progress in his case plan. The court determined that return of the minor to parents would create a substantial risk of detriment to his safety, protection, or physical or emotional well-being; found by clear and convincing evidence that parents had been provided reasonable services to mitigate the concerns that brought the minor to the Department 's attention; and concluded there was a substantial probability the minor could be returned to mother within the next six-month period, i.e., prior to the 18-month hearing. The minor would thus remain a dependent child placed in out-of-home care placed with de facto parents. The court ordered that father receive supervised visitation of the minor every three weeks, and that mother receive supervised visitation three times per week. And the court set an 18-month review hearing for March 27, 2018.
On November 30, 2017, D.C. filed a timely notice of appeal from the court's order after the 12-month review hearing.
D.C. filed two related writ proceedings in this court (D.C. v. Superior Court, denied March 1, 2018, H045411; D.C. v. Superior Court, denied March 1, 2018, H045479) and a related appeal (In re D.L., H045491, app. pending). This court took judicial notice of the records filed in the two writ petitions and in the related appeal.
II. DISCUSSION
A. Applicable Legal Principles
1. Dependency Law Generally
Section 300 et seq. provides "a comprehensive statutory scheme establishing procedures for the juvenile court to follow when and after a child is removed from the home for the child's welfare. [Citations.]" (In re Celine R. (2003) 31 Cal.4th 45, 52.) As our high court has explained, "The objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time. [Citations.] Although a parent's interest in the care, custody and companionship of a child is a liberty interest that may not be interfered with in the absence of a compelling state interest, the welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect. [Citations.] The Legislature has declared that California has an interest in providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with their parents have been unsuccessful. [Citations.] This interest is a compelling one. [Citation.]" (In re Marilyn H. (1993) 5 Cal.4th 295, 307.)
The court at the jurisdictional hearing must first determine whether the child, by a preponderance of the evidence, is a person described under section 300 as coming within the court's jurisdiction. (§ 355, subd. (a).) Once such a finding has been made, the court, at a dispositional hearing, must hear evidence to decide the child's disposition, i.e., whether he or she will remain in, or be removed from, the home, and the nature and extent of any limitations that will be placed upon the parents' control over the child, including educational or developmental decisions. (§ 361, subd. (a).) If at the dispositional hearing, the court determines that removal of the child from the custody of the parent or guardian is appropriate, such removal order must be based upon clear and convincing evidence establishing that one of five statutory circumstances exists. (Id., subd. (c).) One such circumstance is the existence of substantial danger to the dependent child's "physical health, safety, protection, or physical or emotional well-being" were he or she returned to the home. (Id., subd. (c)(1).)
After it has been adjudicated that a child is a dependent of the juvenile court, the exclusive procedure for establishing the permanent plan for the child is the permanency hearing as provided under section 366.26. The essential purpose of the hearing is for the court "to provide stable, permanent homes for these children." (Id., subd. (b); see In re Jose V. (1996) 50 Cal.App.4th 1792, 1797.)
Prior to the permanency hearing, there are periodic status reviews as ordered by the court, but not less frequently than every six months. (§ 366, subd. (a)(1).) "Review hearings are critical because they are the point at which a parent may be denied further reunification services. [Citation.]" (In re Jesse W. (2007) 157 Cal.App.4th 49, 61.)
2. Family Reunification Services
When the dependent child is removed from parental custody, the juvenile court is ordinarily required to provide the parent with services to facilitate the reunification of the family. (§ 361.5, subd. (a); see Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 303.) "The focus during the reunification period is to preserve the family whenever possible. [Citation.] Until services are terminated, family reunification is the goal and the parent is entitled to every presumption in favor of returning the child to parental custody. [Citations.]" (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1423.) As explained by one court: "The importance of reunification services in the dependency system cannot be gainsaid. The law favors reunification whenever possible. [Citation.] To achieve that goal, ordinarily a parent must be granted reasonable reunification services. [Citation.]" (In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1242.)
If reunification services are ordered, they generally (subject to exceptions and instances in which the period may be extended) begin with the dispositional hearing and, for children three years or older, end 12 months thereafter. (§ 361.5, subd. (a)(1)(A).) But where a child is under three at the time of his or her initial removal (id., subd. (a)(1)(B)), reunification services are normally terminated after six months. (See Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1009, fn. 4.) Although a parent may reasonably expect under most circumstances to receive reunification services for at least the periods designated under section 361.5, subdivision (a)(1), "reunification services constitute a benefit; there is no constitutional ' "entitlement" ' to those services. [Citation.]" (In re Aryanna C., supra, 132 Cal.App.4th at pp. 1242; see id. at pp. 1241-1242 [parent of child under three not entitled to minimum of six months of services]; see also In re Derrick S. (2007) 156 Cal.App.4th 436, 445-450 [parent of child over three not entitled to minimum of 12 months of services].)
As the California Supreme Court has explained, for parents of a child under three at the time of removal, the statutory scheme of providing reunification services establishes "three distinct periods and three corresponding distinct escalating standards." (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 845.) In the first period—a phase where services are "presumed"—from the jurisdictional hearing to the six-month review hearing, "services are afforded essentially as a matter of right [citation]." (Ibid.) In the second period—a phase where services are "possible"—from the six-month review hearing to the 12-month review hearing, "a heightened showing is required to continue services." (Ibid.) And in the third period—a phase where services are "disfavored"—from the 12-month review hearing to the 18-month review hearing, "services are available only if the juvenile court finds specifically that the parent has 'consistently and regularly contacted and visited with the child,' made 'significant progress' on the problems that led to removal, and 'demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs.' [Citation.]" (Ibid.; see also M.V. v. Superior Court (2008) 167 Cal.App.4th 166, 175-176.)
The services offered by the agency must be "reasonable 'under the circumstances.' Such circumstances necessarily include the mental condition of the parent, her [or his] insight into the family's problems, and her [or his] willingness to accept and participate in appropriate services." (In re Christina L. (1992) 3 Cal.App.4th 404, 416.) Under section 361.5, the agency is required to make " '[a] good faith effort' to provide reasonable services responding to the unique needs of each family. [Citation.]" (In re Monica C. (1995) 31 Cal.App.4th 296, 306.)
3. De Facto Parent Doctrine
The concept that a person may be recognized as a de facto parent is one that is judicially created. In 1974, our Supreme Court acknowledged that "a person who assumes the role of parent, raising the child in his [or her] own home, may in time acquire an interest in the 'companionship, care, custody and management' of that child. The interest of the 'de facto parent' is a substantial one, recognized by this court . . . and by courts of other jurisdictions and deserving of legal protection. [Citation.]" (In re B.G. (1974) 11 Cal.3d 679, 692-693, fns. omitted.) The high court concluded that because a juvenile court at the dispositional hearing must consider all evidence relevant to the minor's best interests, including alternatives for placement (not limited to awarding custody to de facto parents), persons having de facto parent status "should be permitted to appear as parties in juvenile court proceedings . . . to assert and protect their own interest in the companionship, care, custody and management of the child." (Id. at p. 693, fn. omitted.) The Supreme Court affirmed this principle in In re Kieshia E. (1993) 6 Cal.4th 68, 76, observing that "[w]ithin its limited scope, the doctrine of de facto parenthood has since [the In re B.G. decision] been liberally applied to ensure that all legitimate views, evidence, and interests are considered in dispositional proceedings involving a dependent minor."
As defined by the California Rules of Court, 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." (Cal. Rule of Court, rule 5.502(10).) Status is established through an application to the court in which the prospective de facto parent bears the burden of proof by a preponderance of the evidence. (In re Patricia L. (1992) 9 Cal.App.4th 61, 67; see also In re Joshuia S. (1988) 205 Cal.App.3d 119, 125 [rejecting contention that de facto status must be proved by clear and convincing evidence].) Although each application is decided on "the unique circumstances of the case" (In re Patricia L., supra, at p. 66), issues relevant to 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.) The adult need not have been the "child's current or immediately succeeding custodian" in order to qualify for de facto parent status. (In re Rachael C. (1991) 235 Cal.App.3d 1445, 1453, disapproved on other grounds in In re Kieshia E., supra, 6 Cal.4th at p. 80.)
Further unspecified rule references are to the California Rules of Court.
Although the California Legislature has never incorporated the doctrine of de facto parenthood into the dependency statutes (see Cal. Juvenile Dependency Practice (Cont.Ed.Bar 2018) § 13.1, pp. 1226-1227), decisional authority has established that de facto parents enjoy certain procedural rights as parties in dependency proceedings. (See In re B.G., supra, 11 Cal.3d at pp. 692-693.) De facto parents are permitted "to participate in disposition, review and permanent plan hearings. [Citations.]" (In re Jody R. (1990) 218 Cal.App.3d 1615, 1626, fn. omitted.) Under rule 5.534(a), at "the dispositional hearing and any hearing thereafter at which the status of the dependent child is at issue," de facto parents have the right to (1) be present, (2) be represented by retained counsel (with the court having the discretion to appoint counsel on their behalf), and (3) present evidence. But they do not have full participatory rights and are not accorded the full rights of parents or guardians in dependency proceedings. (In re Jody R., supra, at pp. 1627-1628.) Thus, de facto parents do not have the right to reunification services. (In re Kieshia E., supra, 6 Cal.4th at p. 77, fn. 7; In re Jody R., supra, at p. 1628.) Nor are de facto parents entitled to visitation or custody. (Clifford S. v. Superior Court (1995) 38 Cal.App.4th 747, 752 (Clifford S.).)
B. D.C.'s Standing to Appeal
Both Department and mother raise a procedural hurdle to D.C.'s maintenance of this appeal. They contend that D.C. and B.C., as de facto parents, have no standing to challenge the juvenile court's order granting mother an additional period of reunification services. The Department argues that because de facto parents in dependency proceedings do not have the same substantive rights accorded to parents or guardians, and de facto parents' procedural rights are limited, D.C. and B.C. did not have standing to seek a contested hearing or appeal from the order here that "did not pertain to an issue directly affecting the relationship between the de facto parents and [the minor]." Mother contends that "a de facto parent has the right to appeal an order that directly affects her interest in her status or potential custody of the child," and that, because the order here does not affect D.C.'s status or her custody of the minor, she has no standing to appeal.
"Any party aggrieved may appeal . . . ." (Code. Civ. Proc., § 902.) A party "is considered 'aggrieved' [when his or her] rights or interests are injuriously affected by the judgment. [Citations.]" (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737.) Code of Civil Procedure section 902 "is a remedial statute, which should be 'liberally construed,' with 'any doubts resolved in favor of the right to appeal.' [Citation.]" (Ajida Technologies, Inc. v. Roos Instruments, Inc. (2001) 87 Cal.App.4th 534, 540; see also Vitatech International, Inc. v. Sporn (2017) 16 Cal.App.5th 796, 804.) This rule of standing is "jurisdictional." (Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947.)
In the context of dependency proceedings, it is likewise true that "standing to appeal is construed liberally, and doubts are resolved in its favor." (In re K.C. (2011) 52 Cal.4th 231, 236.) But in a challenge of a judgment or appealable order of the juvenile court, the appellant's injury "must be immediate and substantial, and not nominal or remote. [Citation.]" (In re L. Y. L. (2002) 101 Cal.App.4th 942, 948.) Thus, for instance, "the mere fact a parent takes a position on a matter at issue in a juvenile dependency case that affects his or her child does not alone constitute a sufficient reason to establish standing to challenge an adverse ruling on it." (In re Carissa G. (1999) 76 Cal.App.4th 731, 736.)
We begin with the general proposition that "[t]he 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. (2011) 195 Cal.App.4th 707, 718; see also In re Jody R., supra, 218 Cal.App.3d at p. 1627 ["de facto parent is not accorded standing to take part in all proceedings"].) A primary instance in which a de facto parent does have standing to appeal a juvenile court's decision is where the court has approved the removal of the dependent child from the de facto parent's custody and care. Thus, in one case, de facto parents, who had cared for the child for nearly two years, challenged by a petition for writ of mandate a removal order in which the juvenile court refused to consider the de facto mother's testimony or six letters seeking to rebut the reason for the removal. (Katzoff v. Superior Court (1976) 54 Cal.App.3d 1079, 1081-1083 (Katzoff).) The appellate court held this was error. It found that (1) the de facto parents had standing to challenge the proposed removal of the child from their custody and care, (2) the juvenile court's reliance on only the argument of counsel was inappropriate, and (3) the de facto parents should have been permitted to present competent evidence for the court's consideration before it ruled on the matter. (Id. at pp. 1084-1085.) The Katzoff court found: "It appears that petitioners have been denied the very right reserved to them by [In re] B.G.[, supra, 11 Cal.3d 679]: 'to appear as parties to assert and protect their own interest in the companionship, care, custody, and management of the child.' If the participation of the foster parents, either through their testimony or by their presentation of other evidence, would have provided the court with relevant information as to [the minor's] best interests, the court should have permitted their participation and considered the evidence presented. [Citation.]" (Id. at p. 1084.)
Likewise, in In re Joel H. (1993) 19 Cal.App.4th 1185, the de facto mother who had cared for the minor for over three years appealed an order granting the agency's petition for permanent removal of the minor and his two half-siblings. (Id. at pp. 1189-1192.) The agency challenged her standing to appeal the order. (Id. at pp. 1194-1195.) Relying in part upon Code of Civil Procedure section 902, the court held that the de facto mother had standing to challenge the removal order because "[her] interest was injuriously affected because the trial court ordered that the minors were to be permanently removed from her physical custody." (In re Joel H., supra, at p. 1196; see also In re Jonique W. (1994) 26 Cal.App.4th 685, 690-693 [de facto parent had right to participate in contested hearing on supplemental petition removing child due to de facto parent's alleged failure to protect]; but see In re P.L. (2005) 134 Cal.App.4th 1357, 1361 [de facto parent had no standing to challenge on appeal an order changing custody of minor to prospective adoptive parents because de facto parent had "no right to custody or continued placement"].)
Other instances in which appeals by de facto parents were heard on the merits—thereby determining implicitly that they had standing—include challenges of orders (1) denying de facto parent status (see In re Rachael C., supra, 235 Cal.App.3d 1445); (2) terminating de facto parent status (see In re Patricia L., supra, 9 Cal.App.4th 61); (3) denying without a hearing a de facto parent's section 388 petition seeking visitation rights (see In re Hirenia C. (1993) 18 Cal.App.4th 504); and (4) granting a section 388 petition by a late-appearing father, granting him reunification services and vacating permanency planning that had included anticipated adoption by the de facto parents (see In re Vincent M. (2008) 161 Cal.App.4th 943, 952-953).
The parties to this appeal have identified no cases addressing whether a de facto parent has standing to challenge a 12-month review hearing order that extends a biological parent's period of reunification services and which does not alter the minor's placement. And it appears that the claimed interest of de facto parents has a less direct relationship to the order challenged here as compared with cases where standing has been found because the orders directly impacted the de facto parent's interests, such as orders denying de facto parent status or removing a child from a de facto parent's custody.
De facto parents do not have the same substantive rights as biological parents or legal guardians; they, for example, do not have a right to custody, visitation, continued placement, or reunification services. (In re A.F. (2014) 227 Cal.App.4th 692, 700.) Similarly, while de facto parents have significant procedural rights—the right to be present at hearings, to be represented by retained counsel (and, in the court's discretion, to appointed counsel), and the right to present evidence and be heard (In re P.L., supra, 134 Cal.App.4th at p. 1361; rule 5.534(a))—those rights are more limited than those of biological parents, guardians, or dependent children. (See In re A.F., supra, at p. 700 ["extent of a de facto parent's right to present evidence depends on the relevant circumstances"]; In re Jody R., supra, 218 Cal.App.3d at p. 1627 [de facto parent's participation in dependency proceedings "is limited to disposition and other hearings subsequent to the jurisdiction hearing and is restricted to asserting his or her interest in the custody, companionship, care and management of the child"].) For instance, in addition to the aforementioned procedural rights of de facto parents identified in rule 5.534(a), biological parents, guardians, and dependent children have the right to (1) cross-examine witnesses, (2) use of court process to compel witness testimony, (3) receipt of all court-filed documents, including the social study, and (4) to inspect documents upon which the social study was based. (Rule 5.534(g).) And unlike de facto parents, biological parents, guardians, and dependent children are specifically identified as parties entitled to discovery requirements that are given liberal construction favoring informal disclosure in dependency proceedings. (Rule 5.546(a), (d); see also § 827, subd. (a)(1)(C), (D).) Thus, as urged by the Department and mother, under the relevant circumstances of this case, the limited role of de facto parents in dependency proceedings offers a strong, if not compelling, reason for concluding that D.C. lacks standing to challenge the 12-month review order here.
D.C. cites In re Matthew P. (1999) 71 Cal.App.4th 841, 850 (Matthew P.) in support of the proposition that de facto parents "are entitled to the same procedural rights as natural parents." We disagree. " 'De facto parents are parties,' but they are only 'entitled to procedural due process to the extent necessary and appropriate for them to assert [their] recognizable interest in the child [citations].' " (In re Damion B. (2011) 202 Cal.App.4th 880, 888. quoting Seiser & Kumli, Cal. Juvenile Courts Practice & Procedure (2011) § 2.60A[3], p. 2-130.) And as noted by the authors of the treatise, "while the ultimate holding of the Matthew P. decision that the de facto parents had a right to a contested hearing on their [§ 388] petition [for placement of the minors] was, under the facts of that case, correct, its determination that de facto parents have the same procedural rights as natural parents was incorrect [citations]." (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2017) § 2.60A[3], p. 2-160.)
Further, there are a number of dependency cases in which parties other than de facto parents have been held to have lacked standing. In In re K.C., supra, 52 Cal.4th at page 235, the minor's father challenged an order denying his parents' (the minor's paternal grandparents') section 388 petition seeking placement of the minor in their home; at the same hearing as the section 388 petition, the court selected adoption as the permanent plan and terminated the father's and the mother's parental rights. The Supreme Court held that the father, who had abandoned any challenge to the termination of his parental rights, lacked standing to challenge the denial of the paternal grandparents' section 388 petition, reasoning that "[a] parent's appeal from a judgment terminating parental rights confers standing to appeal an order concerning the dependent child's placement only if the placement order's reversal advances the parent's argument against terminating parental rights." (In re K.C., supra, at p. 238.) In so holding, the Supreme Court rejected the father's contentions that he was afforded standing simply by virtue of being a party (ibid.), and because he had joined in the grandparents' petition and had actively participated in litigating it (id. at p. 239). (See also In re A.K. (2017) 12 Cal.App.5th 492 [where father's reunification services were terminated, he lacked standing to challenge court's failure to consider paternal grandmother for placement of child]; In re Holly B. (2009) 172 Cal.App.4th 1261 [where father's reunification services were terminated, he lacked standing to challenge order rescinding dependent child's psychological evaluation relevant to her placement]; In re Nachelle S. (1996) 41 Cal.App.4th 1557 [where parental rights of both parents had been terminated, they lacked standing to challenge order of visitation between child and his or her siblings]; In re Gary P. (1995) 40 Cal.App.4th 875 [where parental rights had been terminated, parents lacked standing to challenge order severing ties between dependent children and grandmother].)
Moreover, an argument can be made that D.C.'s injury resulting from the 12-month review order continuing services for mother was not "immediate and substantial, [but was, rather,] nominal or remote" (In re L. Y. L., supra, 101 Cal.App.4th at p. 948), since the minor remained in de facto parents' custody and care. Since the order was not one that initially appeared to impact the " 'companionship, care, custody and management' " of de facto parents (Katzoff, supra, 54 Cal.App.3d at p. 1084), it may be argued that D.C. was not aggrieved by its entry. (Cf. ibid. [appellants aggrieved because removal order impacted their recognized rights as de facto parents].) Thus, for instance, the court in Clifford S., supra, 38 Cal.App.4th at page 752 held that, because "de facto parents [do not have] the rights and responsibilities of parents or guardians [citation, and, s]pecifically, they do not have the right to reunification services, custody, or visitation," the petitioner (the de facto father) had no standing to appeal a juvenile court order finding the biological parents had been provided reasonable services and terminating those services. (Id. at pp. 752-754; see also In re Jamie G. (1987) 196 Cal.App.3d 675, 684 [de facto parents not entitled under section 366.2, subd. (e) to reunification services].)
Notwithstanding the above authorities and the limited role of de facto parents in dependency proceedings, we acknowledge that D.C. has a substantial argument that she has standing to appeal the 12-month review order. While we appreciate the argument that, in a narrow sense, the court's order had no direct impact upon de facto parents' interests in the " 'companionship, care, custody and management' " of the minor (Katzoff, supra, 54 Cal.App.3d at p. 1084)—since the minor remained in D.C.'s and B.C.'s custody and care—clearly, the order had an impact upon de facto parents' interests. The court's extending services to mother for an additional six months—founded on the conclusion that there was a substantial probability the minor could be returned to mother within that time—had a significant long-term effect upon de facto parents' interests in the care, custody and management of the minor. And—in further support of D.C.'s position—we acknowledge that the interests of the de facto parent are "substantial" (In re Joel H., supra, 19 Cal.App.4th at p. 1194), and that standing must be construed "liberally" (In re K.C., supra, 52 Cal.4th at p. 236).
We conclude that, under the relevant circumstances of this case, it is a close question whether D.C. has standing as a de facto parent to appeal the juvenile court's 12-month review hearing order continuing services for mother. Because, however, we determine, as discussed, post, that the issues in the appeal are moot, we do not decide whether D.C. has standing to appeal.
C. The Appeal Is Moot
In D.C.'s challenge to the 12-month review hearing order continuing services for mother, she raises the following issues: (1) the denial of her right to a contested hearing contravened rights provided to de facto parents under statute and court rule; (2) such denial deprived her of her right to due process under the Fourteenth Amendment, because she was not given adequate notice of the Department's changed recommendation to continue services and was denied the right to a hearing; (3) the court in any event abused its discretion because there was no substantial evidence supporting the order; and (4) the court failed to make necessary findings under section 366.21, subdivision (g)(1)(C). D.C. seeks an order either terminating services or ordering the trial court to conduct an evidentiary hearing to permit D.C. to present her "important evidence."
Mother asserts that the issues in this appeal are moot. Because mootness is an issue that may be raised by the parties or by the court sua sponte (Bullis Charter School v. Los Altos School Dist. (2011) 200 Cal.App.4th 1022, 1032), we address the issue at this juncture.
In general, appellate courts will neither decide controversies that are moot nor render decisions on abstract propositions. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.) " '[A]n action that originally was based on a justiciable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events.' [Citations.]" (Building a Better Redondo, Inc. v. City of Redondo Beach (2012) 203 Cal.App.4th 852, 866.) And "[a] case is moot when the decision of the reviewing court 'can have no practical impact or provide the parties effectual relief. [Citation.]' [Citation.] 'When no effective relief can be granted, an appeal is moot and will be dismissed.' [Citations.]" (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214 (MHC Operating Limited Partnership).)
Thus, for example, where a city amended a rent control ordinance in compliance with a writ of administrative mandamus granted by the trial court, that postjudgment action rendered moot any appellate challenge by the city to the issuance of the writ. (MHC Operating Limited Partnership, supra, 106 Cal.App.4th at pp. 214-215.) Similarly, an objector's challenge under the California Environmental Quality Act to an environmental impact report issued in connection with a construction project (which included a public park) was held moot where, during the pendency of the appeal, the project was completed and was opened to the public and no effective relief could be granted to the objector. (Santa Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538, 1547-1551.)
The mootness doctrine has been applied in dependency proceedings. For example, in In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315, after the child was detained, reunification services were provided to the mother and her services were ultimately terminated, she petitioned under section 388 to regain custody of her child. After summary denial of her petition, the mother appealed; thereafter, however, the juvenile court terminated her parental rights and she did not challenge that decision. (In re Jessica K., supra, at p. 1315.) The appellate court held that the mother's appeal was moot because no effective relief could be granted (id. at pp. 1315-1316), reasoning that "[b]ecause mother's parental rights cannot be restored even were we to agree with mother that the summary denial [of her petition] was an abuse of discretion, a hearing on mother's petition would be futile" (id. at p. 1315).
The reviewing court examines on a case-by-case basis whether events occurring after an appeal taken in a dependency proceeding have rendered the appeal moot and whether the appellate court's decision may have an effect on subsequent proceedings in the case. (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404.) Thus, for instance, in one case, the agency challenged the mother's appeal of the juvenile court's denial of visitation with her one-year-old son in jail due to his age, contending that the mother's release from incarceration rendered the appeal moot. (In re Dylan T. (1998) 65 Cal.App.4th 765, 768-769.) The appellate court concluded the appeal was not moot. (Id. at pp. 769-770.) It reasoned that if the juvenile court erred in its denial of visitation as part of the reunification process, where reunification services could be terminated after six months, such denial "could infect the outcome of subsequent proceedings." (Id. at p. 770.)
We conclude that the issues in the present appeal (as described at the beginning of this section) are moot. The date set for the 18-month review hearing (March 27, 2018) has passed. Six months have elapsed since the challenged order extending reunification services to mother was made, and mother has received those services and has benefited from them. Further, we are aware, based upon the record in the related appeal of which we have taken judicial notice (see fn. 2, ante), that the 18-month review hearing occurred on April 19, 2018, and the court ordered the minor returned to mother's care and that she receive family maintenance services. Therefore, even were we to conclude that D.C.'s appeal is meritorious, we cannot turn back the clock or in some way rescind the additional six months of services mother has already received as a result of the juvenile court's order after the 12-month review hearing.
In reaching this conclusion, we observe that In re Pablo D. (1998) 67 Cal.App.4th 759 is on point. There, the minor appealed from the juvenile court's order at the 12-month review hearing extending reunification services to his parents to the 18-month review hearing; the minor argued that there was no substantial evidence to support the court's finding that it was likely he would return home by the 18-month review date, which was 10 weeks after the 12-month review hearing. (Id. at p. 760.) The In re Pablo D. court held that the appeal was moot because 10 months had passed since the challenged order and the parents were continuing to receive services. (Id. at p. 761.) The court held: "Obviously, we cannot rescind services that have already been received by the parents. Because we are unable to fashion an effective remedy, the appeal is moot. [Citation.]" (Ibid.; see also In re Brandon M. (1997) 54 Cal.App.4th 1387, 1401 [mother's challenge to order placing minors with de facto father for " 'ninety-day trial home visit' " for the spring of 1996 was "patently moot" since appeal was heard in May 1997].)
D. Conclusion
We acknowledge that the interests of de facto parents in dependency proceedings are substantial and that, because their rights are not delineated by statute, there are instances, such as here, in which disputes will arise as to the nature and extent of those rights. It is obvious to this court that de facto parents here love the minor very much and have completely devoted themselves to ensuring his health, well-being, and happiness. Notwithstanding these observations and recognizing the interests of de facto parents generally, we conclude that, under the relevant circumstances of this case, even if we were to consider the merits and were to find that the trial court had erred, we would be unable to provide any effectual relief to de facto parents. Therefore, following the law, we must dismiss this appeal due to mootness.
The Department filed a motion to augment the record to include records it contends were considered by the juvenile court at the 12-month review hearing but which were "not formally entered into evidence." D.C. opposed the motion to augment, arguing that it would be inappropriate to augment the record to include documents that may not have been filed or lodged with the trial court. Because we do not address the merits of the appeal and instead dismiss it on the basis of mootness, we deny the motion to augment without consideration of the merits of the parties' respective positions concerning the propriety of inclusion of the documents in the appellate record.
III. DISPOSITION
The appeal is dismissed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
GREENWOOD, P.J. /s/_________
GROVER, J.