In re A.K. CA4/2

• Court: California Court of Appeal
• Decided: February 19, 2014
• Docket: E058309
• Status: Unpublished

Opinion

Filed 2/19/14 In re A.K. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.K. et al., Persons Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E058309

Plaintiff and Respondent, (Super.Ct.No. RIJ116828)

v. OPINION

L.R. et al.,

Defendants and Appellants.

APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson,

Judge. Affirmed.

Julie E. Braden, under appointment by the Court of Appeal, for Defendants and

Appellants.

Pamela J. Walls, County Counsel, and Julie Koons Jarvi, Deputy County Counsel,

for Plaintiff and Respondent.

1 I

INTRODUCTION1

The subjects of this appeal are two children, A.K., born in 2004, and C.S., born in

2007. L.R., their maternal grandmother (MGM), and her boyfriend, M.P., appeal from an

order denying a hearing on their request for de facto parent status. (Cal. Rules of Court,

rule 5.502(10); § 395.)

The present dependency case was preceded by an earlier referral in 2004 and a

separate dependency case between 2008 and 2010. This second dependency case began

in August 2012. We affirm the trial court’s order.

II

FACTUAL AND PROCEDURAL BACKGROUND

A. Prior Child Welfare History

In December 2004, DPSS2 received a complaint that mother had left A.K., an

infant, with L.R. and that adults in the household were using methamphetamine and

marijuana. No investigation was completed. After mother was arrested in March 2008

for child endangerment, the charges were dropped.

B. 2008 Detention

DPSS filed the first original dependency petition in August 2008. The petition

alleged the parents had failed to protect and support the children and had neglected them

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

2 Department of Public Social Services, County of Riverside.

2 by leaving them with L.R. who had an “extensive CPS History” and was on probation

after being arrested in January 2008 for possession of marijuana for sale and possession

of paraphernalia. (Health & Saf. Code, §§ 11359, 11364.)

L.R. told DPSS that mother was homeless and often left the children with her.

Their fathers had little contact with them and the fathers’ whereabouts were unknown.

L.R.’s boyfriend for eight years was M.P. After their arrest for possession of marijuana

for sale, L.R. and M.P. were on a weekend work release program. They were

unemployed and were living on money from M.P.’s 401K account. L.R. had used both

marijuana and methamphetamine in the past. She admitted that her parental rights to her

own three children, including mother, had been terminated in 1999 based on

methamphetamine use and other neglect.

The criminal record for L.R. extended from August 1999 until January 2008 and

involved 10 offenses, including five that were drug-related. DPSS recommended that

L.R. have supervised visitation with the children who were placed in foster care.

On July 24, 2008, the probate court ordered L.R. to have temporary legal

guardianship of the children. L.R. sought guardianship to provide the children with a

stable environment as opposed to living on the streets with their mother. On July 30,

2008, L.R. told DPSS that mother had left L.R.’s home after being advised of the

guardianship hearing scheduled for August 14, 2008. L.R. had provided primary care for

the children between May and August 2008. Both children had been in and out of her

care since birth. On August 4, 2008, the juvenile court ordered the children removed.

3 C. 2008-2010 Jurisdiction/Disposition

In an interview with DPSS, mother explained that she had left the children with

the MGM because she had no housing and nowhere to go. Mother who was born in

1987, recounted that, after her parents separated, L.R. had a relationship for five or six

years with a man who beat mother and her brothers. L.R. had used drugs until her partner

was incarcerated. L.R. then moved in with another man who abused her. Mother said

L.R. and her partner were using drugs and he made sexual remarks to mother when she

was 16 and 18. After DPSS removed mother, she lived with her paternal grandmother

and great-grandmother. When mother was a pregnant minor, she married A.K.’s father

after L.R. gave her consent. A.K.’s father was abusive and the marriage was soon

annulled. Mother reported using marijuana at 13, methamphetamine at 14, heroin at 20

when she overdosed, and marijuana in 2008.

C.S.’s father reported that mother had lived with his family from December 2006

until he was incarcerated in March 2008. He had a close family life, without violence or

abuse, and frequent church participation. C.S.’s father had started using

methamphetamine at age 16. He had sustained a driving under the influence charge

about 10 years ago. In March 2008, he was convicted of child endangerment after his

daughter from another relationship was found in the presence of drugs and paraphernalia.

In September 2008, mother and C.S.’s father began living in Tulare County and

participating in services there although they could not conduct visitation from that

distance. Mother believed her children were well cared for by L.R. and M.P. who were

4 visiting the children weekly with supervision. The social worker reported the

grandmother’s home was determined inappropriate for the children.

On September 22, 2008, the juvenile court sustained the amended petition,

declared dependency, removed custody, denied services to A.K.’s father, and ordered

services for mother and C.S.’s father. The court transferred the case to Tulare County.

In October 2008, L.R. filed a request for de facto parent status, stating that she had

cared for A.K. from February 2005 until July 2008 and C.S. from February 2008 until

July 2008. The juvenile court denied the request without prejudice due to the transfer to

Tulare County.

In September 2009, the children were returned to mother with family maintenance

services. The parents were stable and sober, and had married. In July 2010, the

dependency was terminated.

D. 2012 Detention

DPSS filed a second original dependency petition in November 2012. It alleged

the parents’ failure to protect and support, primarily because of mother’s substance abuse,

mental health issues, and incarceration. DPSS had received a referral in October 2012

after the mother had seemed erratic and under the influence when she was late picking up

C.S. from school. On October 4, 2012, she kept C.S. at home because she knew DPSS

had been called.

L.R. reported mother had left the children with her for months at a time. A.K. was

living with L.R. Mother had left L.R.’s home, taking C.S. with her, after failing to follow

the house rules. Mother and C.S. were not living with L.R. and she did not know the

5 mother’s whereabouts. L.R. asserted that she and M.P. had completed their probation

and were not engaged in drug use or crime. The home was clean and safe and A.K. was

cared for well.

A.K. said mother had been living with C.S.’s father. A.K. had observed domestic

violence between her mother and C.S.’s father and C.S.’s father smoked “green stuff with

paper.” A.K. liked living with L.R. although she preferred to live with her mother. She

denied any alcohol, drugs, or domestic violence in L.R.’s home. A.K. appeared safe and

healthy.

Mother explained she had returned to L.R.’s home in August 2012, after C.S.’s

father threw a vacuum cleaner at her, hit her, and spanked the children. She took C.S.

with her when L.R. told her to leave. Mother was homeless and using methamphetamine.

She blamed the domestic violence for her relapse. Mother was arrested for vehicle theft,

for possession of stolen property, and for being under the influence of methamphetamine.

C.S., who was very dirty, was found in a one-bedroom apartment where a hypodermic

needle was in his reach and seven adults were under the influence of drugs or were

known drug users.

A.K. confirmed C.S.’s father hit the mother as well as herself and her brother. In

another interview, A.K. said she lived with L.R. because her mother left the home with

C.S. She denied knowing about drug use but she suspected C.S.’s father was using

marijuana. She confirmed that C.S.’s father hurled a vacuum at the mother and injured

her. He barricaded the door if the police were called. He spanked the children with belts

or slippers that did not leave bruises. A.K. wished to return to L.R.’s care.

6 C.S. said his father would get mad and hit mother and the children. His father

fought and threw things like the air conditioner at mother.

L.R. had asked to keep C.S. in her home when the mother left taking C.S. with

her. L.R. asked to be considered for placement, or, in the alternative, M.P.’s sister and

her husband. L.R.’s home was neat and clean and appropriately furnished with plenty of

food. L.R. had chaperoned A.K.’s school trip the previous day.

The juvenile court detained the children and ordered L.R. and M.P. to be assessed

for placement. In December 2012, mother was taken into custody on multiple theft

charges.

In December 2012, DPSS reported about ongoing conflicts between the foster

family and L.R. and M.P. The foster mother wanted to minimize contact between the

children, mother, and L.R. DPSS continued to recommend the children stay in foster

placement and to conclude that L.R.’s home was inappropriate because of her criminal

record and child welfare history.

In January 2013, mother reported L.R. had asked her to leave the home again. The

mother had moved back to Tulare County to live in a house owned by her husband

although they were separated. C.S.’s paternal grandmother wanted to be considered for

placement. The social worker reported mother and the maternal grandparents had been

visiting together and the maternal grandparents interacted more with the children.

On January 22, 2013, the juvenile court sustained the modified dependency

petition, declared dependency, removed custody, and ordered reunification services for

the mother and C.S.’s father.

7 E. De Facto Parent Application

On February 15, 2013, L.R. and M.P. jointly filed requests for de facto parent

status as to both children. In support of their requests, they asserted the children have

lived with them intermittently most of their lives, beginning in infancy. Appellants

participate in family and school activities with the children. Appellants described the

children’s particular medical problems and the trauma they experienced from mother and

C.S.’s father. The juvenile court summarily denied the request without a hearing.

III

DE FACTO PARENT REQUEST

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. Rules of Court, rule 5.502(a)(10).) “The purpose of conferring

de facto parent status is to ‘ensure that all legitimate views, evidence and interests are

considered in dispositional proceedings involving a dependent minor.’ [Citation.]” (In re

Merrick V. (2004) 122 Cal.App.4th 235, 256.)

The denial of a petition for de facto parent status is reviewed for abuse of

discretion. (In re Leticia S. (2001) 92 Cal.App.4th 378, 381; In re Jacob E. (2004) 121

Cal.App.4th 909, 919.) The party seeking de facto parent status has the burden of

proving, by a preponderance of the evidence, that he or she falls within the statutory

definition. (Jacob E., at p. 919.) De facto parent status includes these factors: “(1)

whether the minor is psychologically bonded to the adult; (2) whether the adult has

8 assumed the role of a parent on a day-to-day basis for a substantial period of time; (3)

whether the adult possesses information about the minor unique from other participants in

the process; (4) whether the adult has regularly attended juvenile court hearings; and (5)

whether any proceeding may result in an order permanently foreclosing any future

contact between the adult and the child.” (In re R.J. (2008) 164 Cal.App.4th 219, 223;

Jacob E., at p. 919; Cal. Rules of Court, rule 5.502(10).)

Appellants argue they made a prima facie showing that the juvenile court was

likely to make a favorable decision on their request for de facto parent status. Appellants

claim that, in applying the relevant criteria, the juvenile court abused its discretion when

it denied appellants an evidentiary hearing. (In re R.J., supra, 164 Cal.App.4th at pp.

223-224.) The latter case specifically held that no authority exists “for the proposition

that a party requesting de facto parent status is entitled to a hearing upon making a ‘prima

facie showing.’” (Ibid.) Furthermore, even assuming that a party requesting de facto

parent status is entitled to an evidentiary hearing upon making a prima facie showing,

appellants failed to make such a showing here.

An applicant may be precluded from de facto parent status if his or her misconduct

led to the dependency. (In re Kieshia E. (1993) 6 Cal.4th 68, 78-79; In re Leticia S.,

supra, 92 Cal.App.4th at pp. 382-383.) Here L.R.’s parental rights to her own children

were terminated in 1999. L.R. was the subject of a dependency referral involving A.K. in

2004, the year she was born. In August 2008, L.R.’s criminal record and dependency

history made her unsuitable to have placement of the children.

9 Furthermore, the children were mostly out of L.R. and M.P.’s care since August

2008. L.R claimed they had custody of A.K. between June and August 2009 and both

children from October 2010 to January 2011 and from August 2012 until November

2012. But even if L.R. and M.P. had the children intermittently, they only cared for them

for 11 months between August 2008 and November 2012, more than four years.

Appellants cannot satisfy most of the five factors to be considered in assessing an

application for de facto parent status. (In re R.J., supra, 164 Cal.App.4th at p. 223.)

Although the children may have a psychological bond to appellants, L.R. and M.P. did

not assume parental roles for a substantial period of time and they did not offer any

unique information about the children. As to the fifth consideration, it is speculation at

this point in the dependency proceedings to say that parental rights will be terminated.

Appellants rely heavily on In re Bryan D. (2011) 199 Cal.App.4th 127, a case

significantly different from this one. The child in Bryan D. was 12 years old and had

lived with his grandmother his whole life. The court noted the grandmother’s conduct

was not equivalent to “sexual or other serious physical abuse” but constituted only

inadequate childcare arrangements. (Id., at p. 144.) The Court held the grandmother’s

conduct was “not fundamentally at odds with the role of parent” and therefore the

juvenile court abused its discretion in denying de facto status because the decision was

unsupported by substantial evidence. (Id. at pp. 146-147.) The court stated that, in the

absence of evidence of serious abuse or risk, the juvenile court should liberally grant de

facto parent status to the qualifying applicant. (Id. at p. 147.)

10 Here L.R. had a history of inadequate parenting from 1999 to 2008. Actually,

L.R.’s parenting failures began long before 1999 during mother’s early childhood.

Although the children lived with her intermittently until July 2008, she was arrested on

drug charges in January 2008. Between August 2008 and November 2012, more than

four years, the children lived with L.R. and M.P. for only 11 months. In spite of

appellants’ assertion, the record contradicts that they “provided housing, schooling,

medical care, and guidance to both youngsters for large portions of their lives.” Based on

the record, there is no substantial evidence that the juvenile court abused its discretion

when it entered a summary denial of appellants’ application for de facto parent status. (In

re Bryan D., supra, 199 Cal.App.4th at pp. 146-147.)

IV

DISPOSITION

We affirm the denial of a hearing on the appellants’ request for de facto parent

status.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON J.

We concur:

HOLLENHORST Acting P. J.

McKINSTER J.