In re A.G. CA4/2

• Court: California Court of Appeal
• Decided: October 21, 2022
• Docket: E078294
• Status: Unpublished

Opinion

Filed 10/21/22 In re A.G. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re A.G., a Person Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E078294

Plaintiff and Respondent, (Super.Ct.No. RIJ2000589)

v. OPINION

L.D. et al.,

Appellants.

APPEAL from the Superior Court of Riverside County. Cheryl C. Murphy, Judge.

Affirmed.

John Vega for Appellants.

Minh Tran, County Counsel, Teresa K.B. Beecham and Larisa R-McKenna,

Deputy County Counsel for Plaintiff and Respondent.

1 Appellants L.D. and R.D. (Cousins) are the maternal cousins of A.G. (female,

born December 2019; Minor). Cousins appeal from the juvenile court’s order denying

their request for de facto parent status under Welfare and Institutions Code1 section 395.

For the reasons set forth post, we affirm the trial court’s order denying Cousins’ request.

FACTUAL AND PROCEDURAL HISTORY

On September 30, 2020, Minor was detained from A.F. (Mother) and A.G.

(Father; collectively, Parents). Riverside County Department of Public Social Services

(the Department) placed Minor in Cousins’ care.

Minor came to the attention of the Department due to allegations of physical abuse

and general neglect by Parents. Due to an incident of domestic violence between Parents,

law enforcement intervened; Mother was arrested and the Department detained Minor

due to Parents’ unresolved domestic violence and substance abuse issues.2

At the contested adjudication hearing on January 7, 2021, the juvenile found the

allegations in the petition true and ordered reunification services and monitored visits for

Parents. Minor remained in Cousins’ care.

1 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

2 Because this is an appeal by Cousins from the court’s denial of their petition for de facto parent status, the record does not contain the initial petition for detention and other documents.

2 On July 8, 2021, at the contested six-month review hearing, Cousins were present.

The juvenile court terminated Mother’s reunification services and reduced her monthly

visits to once a month. The court continued father’s reunification services for an

additional six months. The court also granted the Department discretion to liberalize

Father’s visits with Minor, including placement with father.

Moreover, the court found Minor’s placement with Cousins to be appropriate. The

Department reported that Minor was stable, safe, and loved by Cousins, who met her

daily needs.

On October 27, 2021, the Department filed a report for the 12-month status

hearing on November 10, 2021. In the report, the Department stated that on October 29,

2020, a Mental Health Screening Tool was completed on behalf of Minor; Minor did not

meet the medical necessity for mental health services. Cousins, however, enrolled Minor

in therapy due to nightmares; they claimed that Minor had nightmares on the days she

visited with Father. The report stated that Father reported completing most of his

services on his case plan. He had been cooperative and communicative with the

Department. On September 30, 2021, a home evaluation was completed for Father. His

visits with Minor progressed to unsupervised visits on October 18, 2021. The

Department, based on Father’s case plan compliance and stable housing, recommended

that Father receive an additional six months of reunification services with a transition

plan to return Minor to his care. The Department also noted that Minor was in a stable

placement with Cousins. Minor was attached to and strongly bonded with both of them.

Minor had a regular routine with Cousins, and her immediate medical, social, emotional,

3 and physical needs were met. Cousins also expressed their commitment to provide Minor

with permanency should Father fail to reunify with her. A Child Family Team Meeting

was initiated.

On November 10, 2021, at the 12-month review hearing, Cousins were present.

Cousins filed a petition for de facto parent status. In the petition, Cousins stated that they

had unilaterally decided to enroll Minor in therapy on September 20, 2021, after Minor

was diagnosed with post-traumatic stress disorder (PTSD). The diagnosis was based on

Cousins’ reports to the therapist that Minor had strong emotional reactions and meltdown

after visiting with Father. Cousins also reported that Minor returned from visits with

Father hungry, thirsty, and with soiled diapers and clothing. Cousins hired a private

investigator who informed Cousins that Father had been in contact with Mother.

However, Father reported that Mother moved to Nevada, and the Department was not in

contact with Mother. Cousins stated that they informed the Department about their

concerns but the Department brushed them off and did not take their concerns seriously.

In an unannounced visit to Father’s residence on November 12, 2021, the social

worker observed that Minor appeared happy, affectionate, comfortable, and content with

Father. The social worker observed that Father changed Minor’s diapers twice during the

visit. Moreover, Father provided crackers, chicken nuggets, and juice for Minor’s lunch.

At the end of the visit, Minor cried and reached out to Father.

4 On November 15, 2021, Cousins refused to take Minor to a scheduled visit with

Father; Cousins stated that Minor had bug bites after returning from a visit with Father on

November 12, 2021. Father denied any knowledge of having bugs in his home. He,

however, set up a fumigation of his home that day. When the social worker attempted to

arrange a visit between Minor and Father at the Department’s office, Cousins became

argumentative and rude. They eventually brought Minor to the visit but refused to

transition Minor to the social worker. Moreover, Cousins asked the Department to

reimburse them to fumigate their home. Father was only able to visit with Minor for half

a day during the afternoon, even though he was scheduled to visit for a full day.

Social worker Tiffany Ross informed her supervisor, Rhonda Cordova, that Ross

had conducted the supervised visits between Father and Minor for several months at the

Department’s office. Ross reported that Father was always attentive to Minor’s needs,

and had a strong bond with her. Ross also stated that Minor always looked comfortable

when she was with Father. Ross told Cordova that Ross never observed any negative

reactions from Minor when she was visiting with Father.

On November 4, 2021, the social worker spoke with Karlee Ohm, the therapist

hired by Cousins. Ohm stated that based on Cousins’ description of Minor’s behaviors,

Minor showed signs of PTSD. Ohm stated that Father needed to learn how to respond to

Minor’s trauma through his own therapist.

On November 18, 2021, at the contested 12-month status review hearing, the court

continued the hearing to December 20, 2021. The juvenile court admonished Cousins for

taking Minor to a therapist who was not approved by the Department or the court. The

5 court stated: “I wanted to speak with you briefly, because when I read the report for

today and saw that the minor had been taken to a therapist, I had to reread it to see if that

was a therapist that was approved by the Department or initiated by the Department for

the need of the Minor. [¶] So I do want to remind you that with regard to the therapist,

that would have to be approved by the Department or an order of the Court. And so it

really—if you felt there was need to have the minor seen, it could be something that’s

spoken with with the child’s social worker, and then a determination could be made if

there needed to be an assessment to determine if the minor needed to have therapy.” The

court went on to tell the Cousins: “So I’m just reminding you that anything that you feel

needs to be done with the minor child in terms of medical, any area, that does go through

the Department and the social worker. And just a reminder too, that the parents are

still—at least father is still in reunification. So that needs to be kept in mind, as well.”

The court then went on to reiterate that “reunification is in progress for the [Father]. And

so the caregivers must abide by all of the orders and directive of the Department. [¶] So

I will indicate that the caregiver cannot make a decision on their own to not allow for

visitation that’s been ordered by this Court.”

On December 14, 2021, the juvenile court heard Cousins’ request for de facto

parent status, and denied their request.

DISCUSSION

Cousins argue that “the court abused its discretion in denying [Cousins’] de facto

parent status when it had very little evidence to deny their request.”

6 “ ‘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. [Citations.] The decision to grant de facto parent status depends on

an assessment of the particular individual and the facts of the case.’ ” (In re Justin O.

(2020) 45 Cal.App.5th 1006, 1015; see also Cal Rules of Court, rules 5.502(10) & 5.534.)

Courts have identified several factors relevant to whether a person falls within the

definition of a de facto parent. Those factors 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.] If some or

all of these factors apply, it is immaterial whether the adult was the ‘child’s current or

immediately succeeding custodian.’ ” (In re Patricia L. (1992) 9 Cal.App.4th 61, 66-67,

fn. omitted; see also In re Bryan D. (2011) 199 Cal.App.4th 127, 141; In re Justin O.,

supra, 45 Cal.App.5th at p. 1015.)

The juvenile court makes its findings as to de facto parenthood by a

preponderance of the evidence, and we review its findings for abuse of discretion. (In re

Leticia S. (2001) 92 Cal.App.4th 378, 381.) We will not find an abuse of discretion

unless the court “has exceeded the limits of legal discretion by making an arbitrary,

capricious, or patently absurd determination.” (Ibid.) “ ‘In most cases, the lower court

7 does not abuse its discretion if substantial evidence supports its determination to grant or

deny de facto parent status.’ ” (In re Jacob E. (2004) 121 Cal.App.4th 909, 919.)

In this case, the parties and the juvenile court agreed that Cousins technically meet

the requirements for de facto parent status. However, even where an individual may meet

the requirements for de facto parent status, courts have found that in order “to qualify as a

de facto parent, one must demonstrate that he or she cares about the child’s well-being,

desires to fulfill the child’s needs, and intends to act in the child’s best interests.” (In re

Jody R. (1990) 218 Cal.App.3d 1615, 1627, boldface and italics added.)

Here, when Cousins filed their request for de facto parent status, they included

unreliable and self-serving reports that Minor was having mental health issues and

meltdowns after visiting with Father. Moreover, Cousins alleged that Minor returned

from visits with Father with soiled clothing and diapers, hungry, and thirsty.

Furthermore, Cousins accused Father of living in a bug-infested home because Minor

suffered from bug bites after coming home from Father’s home.

Contrary to Cousins’ allegations, the social worker observed Minor enjoying her

visits with Father, and noticed that Minor was both comfortable and bonded with Father.

Additionally, during an unannounced visit by the social worker, the social worker

observed Father as being prepared and appropriate with Minor, even though he had no

notice that a social worker would be coming to the visit. The social worker also observed

that Minor did not want to leave Father at the conclusion of the visit. Furthermore, there

was no evidence of a bug infestation at Father’s home. Nonetheless, Father fumigated his

home.

8 The court and parties also observed that Cousins engaged in questionable activities

that were not in the Minor’s best interest. Cousins took Minor to their own therapist, not

a therapist recommended by the Department or the court. Cousins told the therapist their

own and personal observations of Minor. Based on Cousins’ observations, their therapist

diagnosed Minor with PTSD. Moreover, Cousins hired a private investigator to observe

Father’s activities.

At the hearing on December 14, 2021, the following transpired :

First, Father’s counsel asked the court to deny the request. Father’s counsel

argued that the request “was filed with several pages of information that has no bearing

whatsoever as to the health of the child.” Moreover, counsel argued that “not only is the

information not supportive of the request for de facto parent standing, which would really

be just for the opportunity to have standing, limited standing, for the purpose of providing

information as to health and safety of the minor[.] [¶] The motion goes well beyond that

scope. And I believe based on the information, it shows that the de facto parents are

actually making efforts to frustrate and prevent the reunification services process.”

Father’s counsel went on to add that the information came “from sources that had not

been vetted from the Department, including therapists that the [Cousins] did not have

authorization to take the minor to.”

Mother’s counsel was present but stated that he had “no contact with [Mother] in

quite sometime.” Counsel, therefore, offered no comment.

Thereafter, the Department’s counsel also asked the court to deny the motion.

Counsel stated: “Yes, I believe the parents—the foster parents may qualify as a de facto

9 parent. But in this case, I believe the actions of the caretakers are that they’re trying to

stop the reunification or family maintenance of this father with his child.” Counsel went

on to note that although Cousins have stated that Father has failed to feed or care for

Minor during visits, the social worker provided contrary information. “So I think at this

time their action[s] are that they want to keep this child with them and not—and father

not to have family maintenance services.”

Minor’s counsel then clarified that she believed that Cousins met the requirements

for de facto parent status. She, however, agreed with the Department’s counsel “that the

paperwork [Cousins] filed goes well beyond the scope of what is necessary for de facto

parent request. [¶] I think if the Court is to grant them de facto parent status, they need

to be admonished and reminded of the fact that we are in reunification. Father has done a

lot. There have been some issues that have come up that I’ve addressed with [Father’s

counsel] and with county counsel. I think they’re working on that.” Minor’s counsel

then asked for clarification that Minor should attend therapy “with the Department’s

therapist.”

Thereafter, Cousins’ counsel argued that Cousins should be granted de facto

status. She stated that Cousins “have had the child in their care for most of the child’s

life. The child is bonded to them. They have provided information to the Court that no

one else has. And the reason no one else has it is that they keep telling the social worker

about things that are happening, and the social worker happens to dismiss them. This is

what everybody [] else is call thwarting reunification.” Counsel then went on state that

her clients have informed the Department about Father having contact with Mother and

10 about his live-in girlfriend, because of their concern for the safety of Minor. Counsel

also argued that “in their placement agreement, it says that they can get therapy for the

minor. So they have not acted beyond what they are supposed to do. They have

provided excellent care for this child.”

The Department’s counsel responded: “I think counsel’s argument goes directly

to the point made, that their interest here goes beyond the scope of being de facto parents,

which is very limited. They can only give information regarding their knowledge of this

minor’s health in their care.”

After continued argument from counsel, the court stated : “I think I heard quite a

bit from all counsel on this matter.” After going through the facts discussed regarding

Cousins’ request, the court stated: “So while this Court believes that in a general respect

the caregivers do meet the de facto parent status, the Court does not find it to be in the

best interest of the minor child to actually grant the status and believes that if I do, that

would provide more impetus to the caregivers to continue on their path of trying to do

what they can to ensure that father perhaps does not reunify with this minor child, and

that minor could remain in their care and perhaps have permanency with the caregivers.”

Therefore, the court denied Cousins’ request and set a contested hearing for December

20, 2021. Moreover, the court directed that Minor continue therapy with a therapist

chosen by the Department, if necessary.

Based on the above, we find that there is substantial evidence to support the

court’s finding it was not in Minor’s best interest to grant Cousins’ request for de facto

parent status. We can see that Cousins love Minor and did what they believed to be in

11 their best interest—the combine interests of Cousins and Minor. However, there was

ample evidence that showed Cousins were not looking out for the best interest of Minor’s

reunification with Father. Under the Welfare and Institutions Code, “the purpose of the

provisions of this chapter relating to dependent children, is to provide maximum safety

and protection for children who are [abused and neglected] . . . the focus shall be on the

preservation of the family as well as the safety, protection, and physical and emotional

wellbeing of the child.” (§ 300.2.) Here, substantial evidence supports the court’s

finding that Cousins were “trying to do what they can to ensure that father perhaps does

not reunify with this minor child, and that minor could remain in their care and perhaps

have permanency with the caregivers.”

We note that Cousins argue there was no “clear evidence” that they tried to thwart

father’s reunification efforts. As a reviewing court, however, we do not rely on “clear

evidence.” The California Supreme Court stated when a reviewing court is determining

whether the lower court’s decision exceeded the bounds of reason, “[w]hen two or more

inferences can reasonably be deduced from the facts, the reviewing court has no authority

to substitute its decision for that of the trial court.” (In In re Stephanie M. (1994) 7

Cal.4th, 295, 318-319.) Here, there was ample evidence for the juvenile court to make its

finding.

Based on the foregoing, we find that the juvenile court did not abuse its discretion

in denying Cousins’ request for de facto parent status.

12 DISPOSITION

The juvenile court’s order denying Cousins’ request for de facto parent status is

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER Acting P. J.

We concur:

CODRINGTON J.

RAPHAEL J.