In re H.G.

Filed 4/11/07 In re H.G. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Gary M. Bubis, Referee. Affirmed.

Jean B., a maternal aunt of H.G., appeals the denial of her petition for de facto parent status. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

On March 12, 2004, three-year-old H.G. was taken into protective custody by the El Cajon Police Department. H.G. was with her father, Simon G., who was transient and could not provide H.G. with adequate food, shelter and clothing. Shortly after she was detained, the San Diego County Health and Human Services Agency (Agency) temporarily placed H.G. with her aunt, Jean B., and filed a petition under Welfare and Institutions Code section 300, subdivisions (b) and (g).^[1] The factual and procedural background is stated in In re H.G. (2006) 146 Cal.App.4th 1, 4-8, and we need not repeat those details. Here, we focus on the facts pertinent to this appeal.

On April 15, 2004, the court sustained the jurisdiction petition. At disposition, the court removed H.G. from the custody of her parents, Simon and Mary H., and placed her with Jean, whose home was approved by the Agency. Over the next year, the Agency reported that H.G. thrived in Jean's care. She was well-adjusted and happy, and Jean was protective and attentive to her needs. Jean enrolled H.G. in Head Start, identified H.G.'s need for weekly therapy, and attended to her seriously neglected dental and medical needs.

Jean was sharply critical of Simon and Mary and expressed deeply-felt misgivings about the Agency's family reunification plan. In December 2004, the Agency considered removing H.G. from Jean's home in order to facilitate family reunification. The social worker felt that Jean was increasingly difficult, hindering reunification, and exposing H.G. to family hostilities. The court ordered Jean not to discuss the facts of the case with H.G. or make disparaging remarks about the parents, but did not remove H.G. from her care.

In March 2005, the Agency placed H.G. with Mary on a previously authorized 60-day trial visit. At the 12-month review hearing in April, the court returned H.G. to Mary's custody. On August 2, Mary and Simon left their recovery program after Mary tested positive for methamphetamine. The Agency was not able to find H.G. until September 27.

H.G. was detained at Polinsky Children's Center while the Agency evaluated relatives for placement. Jean requested placement and told the Agency she wanted to adopt H.G. H.G.'s paternal grandparents also requested placement. The Agency could not approve Jean's request because her new home had an unfenced swimming pool. The Agency placed H.G. with her grandparents, who were willing to facilitate visitation with "any and all of [H.G.'s] family," including Jean. However, Jean did not visit H.G.

In November 2005, the court terminated reunification efforts and set a section 366.26 hearing. On February 1, 2006, due to concerns about Simon's access to H.G. in the grandparents' home, the Agency abruptly removed H.G. from her grandparents and placed her in a prospective adoptive home. Jean objected to the non-relative placement. She asked the Agency to place H.G. with her as a potential adoptive parent. The Agency opposed Jean's request, citing her lack of contact with H.G., the unfenced pool at her home, her minor son's conviction for driving under the influence, Mary's allegation Jean used drugs, and H.G.'s dislike of Jean's boyfriend.

On February 26, 2005, Jean sent a letter to the trial court expressing support for H.G.'s placement with the paternal grandparents and removing herself from consideration for placement. On February 28, Jean filed an application for de facto parent status. The court set a hearing on the application for de facto parent status; however, Jean did not appear at the hearing.

On April 13, 2005, the court granted the Agency's section 387 petition to change H.G.'s placement from relative care to non-relative foster care. The court proceeded with the section 366.26 hearing, terminated parental rights, and ordered a permanency plan of adoption. Mary and Simon appealed the orders and judgment of the court.^[2]

On June 9, 2006, Jean filed a second application for de facto parent status (application) and a section 388 modification petition requesting custody. The Agency opposed the modification request and stated that H.G. was in a stable, secure and loving prospective adoptive placement. On June 14, after reviewing the record, the court found there had been no change of circumstances and denied an evidentiary hearing on the modification petition. The court set a hearing date on Jean's request for de facto parent status.

In June 2006, M. Bruce Stubbs, Ph.D., conducted a psychological evaluation of H.G. He diagnosed H.G. with reactive attachment disorder. Stubbs explained:

"[H.G.'s] psychological functioning profoundly impacts her day-to-day behavioral functioning. This youngster has been exposed to a profound number of intense and highly emotionally inappropriate

behaviors/experiences in her very young life. There has been little or no stability in her life, even after the involvement of Child [P]rotective [S]ervices . . . [] There is no sense that [H.G.] has any individual or any environment to which she can rely on to be consistent and or safe. Her world is filled with the dangers and threats coming from the very individuals from whom she should be expecting protection."

In an addendum, Stubbs stated, "I do not recommend that [H.G.] have any contact with any of the adults involved in this matter. This is to include family members and friends of the family. It is clear from the records that none of these individuals have had any kind of consistent or appropriate relationship with this child. . . . To again subject this youngster to this kind of inconsistency would be tantamount to further abuse sanctioned by DSS."

In July 2006, the Agency reported that the prospective adoptive family did not want to pursue adoption. H.G. remained in their home while the Agency sought another prospective adoptive placement.

A contested hearing was held on Jean's application on August 29, 2006. The court found Jean provided H.G.'s day-to-day care for one year and, during that time, H.G. was bonded to her. However, more than 17 months had elapsed. H.G. was subjected to multiple placements and removals, and her psychological condition had deteriorated. Jean could not now provide the court with unique information concerning the child. The court determined H.G. would not benefit by Jean's status as de facto parent, and denied the application.

DISCUSSION

Jean contends the court abused its discretion when it denied her application for de facto parent status. She asserts she assumed the role of parent to H.G. for a substantial period of time, H.G. was bonded to her, and she possessed unique information about H.G. Jean argues the court did not construe her application liberally, as required by law, and denied her application on improper grounds. (In re Kieshia E. (1993)6 Cal.4th 68, 76.)

The Agency asserts the court did not abuse its discretion when it determined that Jean's participation in the dependency proceedings, then at the post-termination stage, would not benefit H.G. or assist the court. Minor's counsel joins the Agency's arguments.

A de facto parent is a person who has assumed the role of a parent on a day-to-day basis, fulfilling the child's physical and psychological needs for affection and care. (In re B.G. (1974) 11 Cal.3d 679, 692, fn. 18; In re Leticia S. (2001) 92 Cal.App.4th 378, 381.) De facto parent status does not give the applicant a right to reunification services or visitation with the child. (Clifford S. v. Superior Court (1995) 38 Cal.App.4th 747, 752.) A de facto parent is merely entitled to be present at hearings, have counsel, and introduce relevant evidence. (Cal. Rules of Court, rule 5.534(e).)^[3] De facto parent status does not confer standing to participate in all dependency proceedings. Rather, participation is limited to post-jurisdiction hearings in which the de facto parent asserts his or her interest in the custody, companionship, care, and management of the child. (In re Jody R. (1990) 218 Cal.App.3d 1615, 1627-1628, citing In re B. G. (1974) 11 Cal.3d 679, 693, fn. 18.)

We review the court's approval or denial of an application for de facto parent status for an abuse of discretion. (In re Leticia S., supra, 92 Cal.App.4th at p. 381.) In doing so, we bear in mind that the doctrine of de facto parenthood should be "liberally applied to ensure that all legitimate views, evidence, and interests are considered" in dependency proceedings. (In re Kieshia E., supra, 6 Cal.4th at p. 76.)

Whether a person falls within the definition of de facto parent depends on the circumstances of each case. (In re Patricia L. (1992) 9 Cal.App.4th 61, 66 (Patricia L.).) The Patricia L. court identified five factors the court could consider in determining de facto parent status. Those factors are 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." (Patricia L., supra, 9 Cal.App.4th at pp. 66-67.)

Jean asserts she assumed the role of a parent on a day-to-day basis during the time H.G. was in her custody. Her sister, K., testified H.G. was more securely bonded to Jean than she was to Mary. The court found that Jean provided H.G. a stable, loving home and attended to her needs for one year, and thus recognized the parental nature of her role while H.G. was in her care. As Jean asserts, case law does not limit de facto parent status to those who are current or recent caretakers. (See In re Hirenia C. (1993) 18 Cal.App.4th 504, 514 ["the fact that appellant was not currently acting in [a parental] capacity at the time of the hearing does nothing to defeat her claim of de facto parenthood"]; Patricia L., supra, 9 Cal.App.4th at pp. 67, 69.) However, the record shows the trial court did not deny Jean de facto parent status merely because she no longer provided H.G. day-to-day care. Instead, the court denied the application because H.G. no longer had a beneficial psychological bond to Jean, and Jean no longer possessed unique information about H.G.

The circumstances in this case are similar to those in In re Krystle D. (1994) 30 Cal.App.4th 1778. In that case, as in this one, the child was diagnosed with reactive attachment disorder. The Court of Appeal upheld the trial court's denial of de facto parent status to the child's stepfather because he no longer had current independent, unique information about the child's needs, wants, emotional status, and other issues and, at the time of the hearing, was not a psychological parent to the child. (Id. at p. 1808.)

Here, after March 2005, Jean did not maintain consistent contact with H.G. and was not actively involved in H.G.'s life. During this time, H.G. was subjected to abuse and neglect in Mary's care, and further traumatized by multiple placements and removals. As a result, she was diagnosed with reactive attachment disorder. Dr. Stubbs believed five-year-old H.G. had "virtually no concept of 'home'." H.G.'s needs had changed since she lived with Jean, and the court could reasonably infer by Jean's lack of contact with H.G. that she no longer possessed "current independent, unique information . . . about [the child]'s needs, wants, emotional status . . . ." (In re Krystle D., supra, 30 Cal.App.4th at p. 1808.)

In addition, the court was entitled to rely on the opinion of Dr. Stubbs, who believed H.G. did not have a "consistent or appropriate relationship" with any of her former caretakers. H.G.'s diagnosis of reactive attachment disorder indicates she did not currently have "an adequate and appropriate type of psychological parent-child relationship with an adult caretaker." (In re Krystle D., supra, 30 Cal.App.4th at p. 1808.) Thus, the trial court could draw the reasonable inference that at the time of the hearing, H.G. was not psychologically bonded to Jean. Again, this inference is supported by Jean's lack of consistent, personal contact with H.G. after March 2005.

The court properly evaluated Jean's application in view of H.G.'s acute needs for psychological stability, protection and consistency of care, Dr. Stubbs' current recommendations, and Jean's interest in H.G. Dr. Stubbs believed the less contact H.G. had with her biological family, the more likely she would be able to resolve her attachment deficits. The court was fully aware Jean strongly believed it was in H.G.'s best interests to be placed with her or another relative. Because parental rights had been terminated, the court reasonably concluded Jean's interest in H.G.'s custody, companionship, care and management was already limited by the practical and legal circumstances of the case and would not be affected by future dependency proceedings. (See Patricia L., supra, 9 Cal.App.4th at p. 67.) The court did not abuse its discretion when it found that Jean's participation as a de facto parent would not be of assistance to the court, or to H.G., and denied the application. There is no error.

DISPOSITION

The order is affirmed.

IRION, J.

WE CONCUR:

NARES, Acting P. J.

McDONALD, J.

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^[1] Unless specified, statutory references are to the Welfare and Institutions Code.

^[2] On December 11, 2006, this court reversed the trial court's order removing H.G. from grandparents' custody and necessarily reversed the judgment terminating parental rights. (In re H.G., supra, 146 Cal.App.4th at p. 18-19.)

^[3] Unless specified, rule references are to the California Rules of Court.