In re A.S.

Filed 11/12/09 In re A.S. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

I.

INTRODUCTION

Appellant Maria S. appeals the juvenile courts summary denial of her petition to be declared the de facto parent of her granddaughter, A.S.[1], who was adjudged a dependent child of the juvenile court. Appellant maintains that the juvenile court abused its discretion in not awarding her de facto parent status because she cared for A.S. in the first year of her life; she has established a psychological bond with her; she attended the juvenile court hearings; and if not granted de facto parent status, she might lose her relationship with A.S. through the termination of parental rights. We affirm.

II.

FACTS AND PROCEDURAL HISTORY

A.S. was born in December 2004 to appellants son, Jorge S., and his girlfriend, Lili C. A.S. lived at appellants residence with her parents immediately after her birth. Jorge S. and Lili C.s relationship ended approximately four months later in April 2005, and Lili C. moved out of appellants home, taking A.S. with her. After her parents separated, A.S. split time with Lili C. and Jorge S., who still lived with appellant in her home.

Jorge S. was murdered on September 3, 2006. Thereafter, appellant had an informal arrangement with Lili C. for A.S. to stay with appellant two to three days per week.

On July 22, 2007, Lili C. and her domestic partner Michael D. were involved in a domestic violence incident that resulted in their arrests. Lili C. and Michael D. had been drinking before the mutual assault. Lili C. stabbed Michael D. in the back with a broken beer bottle and Michael D. threw a beer bottle that hit Lili C. in the face. Michael D. held M.D., their infant child, during some of the incident. Two-year-old A.S. was also present. A.S. was dirty, had marks on her face, and a painful nose that was caused by Lili C. hitting her with a stroller.

On July 24, 2007, respondent Alameda County Social Services Agency (the Agency) filed a dependency petition under section 300 of the Welfare and Institutions Code[2] on behalf of A.S. and M.D. The Agency recommended removal of the children from Lili C. and Michael D.s custody because continued parental custody put the children at risk for physical and emotional damage. On July 28, 2007, the Agency placed both A.S. and M.D. with Dora R., their maternal grandmother. On August 8, 2007, A.S. and M.D. were declared dependent children of the Alameda County Juvenile Court.

In response to A.S.s placement with Dora R., appellant filed a petition in the Alameda County probate court on August 9, 2007, seeking guardianship of A.S. Eventually, the probate court directed appellant to handle the matter through the juvenile court, which had exclusive jurisdiction over custody and visitation with A.S. Appellant then petitioned the juvenile court to allow unsupervised visitation. Dora R. had expressed concern about inappropriate activities taking place at appellants home and did not allow appellant to visit A.S. without supervision. The Agency established supervised visitation with appellant every two weeks. It was reported that A.S. enjoyed these visits with appellant.

During subsequent hearings, the court determined that neither Lili C. nor Michael D. had completed their case plans and reunification could not proceed. At the February 27, 2008 hearing, the Agency recommended termination of reunification services and the setting of a section 366.26 hearing to free the minors for adoption. Dora R.s home was identified as the prospective adoptive home for both children. By all accounts, the children have made an excellent adjustment to this home and are attached to Dora R. Their older sister also lives with Dora R., so all three siblings are together.

Five days prior to the section 366.26 hearing scheduled for June 25, 2008, appellant requested a continuance, complaining that the court had not furnished her with notice of the hearing. She also requested an order granting unsupervised weekend visitation.

At the section 366.26 hearing held on June 25, 2008, the juvenile court ordered the termination of Michael D. and Lili C.s parental rights and designated Dora R. as the prospective adoptive parent. At the hearing, the court found that notice had been given as required by law. The court also stated that appellants request for a continuance had not come across her desk in time for the hearing. Regardless, had she received the request earlier she would have been inclined to deny it because appellant lacked standing. The court further indicated that she would never consider placing A.S. and M.D. in separate homes and expressed confidence in the continuing care of Dora R. The court expressed optimism that appellant could work out visitation with Dora R. without court involvement.[3]

On September 10, 2008, several months after the termination of the biological parents parental rights, appellant filed a motion to be declared A.S.s de facto parent, arguing she had maintained a relationship with the minor since birth, had played a significant role in her life and had provided parental-type care to her. On September 25, 2008, the court issued an order summarily denying the request. Appellant filed this appeal, contending the juvenile court erred in denying her petition for de facto parent status.

III.

DISCUSSION

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(10); see In re B.G. (1974) 11 Cal.3d 679, 692, fn. 18; In re Kieshia E. (1993) 6 Cal.4th 68 (Kieshia E.).) In Kieshia E., the California Supreme Court reaffirmed the view that de facto parents have a substantial interest in maintaining the relationship they have forged with the child. (Id. at p. 75.) The court noted that the de facto parenthood doctrine simply recognizes that persons who have provided a child with daily parental concern, affection, and care over substantial time may develop legitimate interests and perspectives, and may also present a custodial alternative, which should not be ignored in a juvenile dependency proceeding. (Id. at p. 77.) The court further explained that the standing accorded de facto parents has no basis independent of these concerns. (Id. at pp. 77-78.)

De facto parent status does not give the de facto parent the right to have the minor placed with him or her, nor does it entitle the de facto parent a right to reunification services or visitation. (Kieshia E., supra, 6 Cal.4th at p. 77, fn. 7; In re Cynthia C. (1997) 58 Cal.App.4th 1479, 1490-1491 & fn. 11; Clifford S. v. Superior Court (1995) 38 Cal.App.4th 747, 752.) A grant of de facto parent status simply gives a person the right to appear as a party at the dependency hearing, to be represented by retained or appointed counsel, and to present evidence. (Cal. Rules of Court, rule 5.534(e); In re Patricia L. (1992) 9 Cal.App.4th 61, 66 (Patricia L.).)

Whether a person falls within the definition of a de facto parent depends strongly on the particular individual seeking such status and the unique circumstances of the case. (Patricia L., supra, 9 Cal.App.4th at p. 66.) Nonetheless, there are several relevant factors for courts to consider including whether: (1) the child is psychologically bonded to the adult; (2) the adult has assumed the role of a parent on a day-to-day basis for a substantial period of time; (3) the adult possesses information about the child unique from other participants in the process; (4) the adult has regularly attended juvenile court hearings; and (5) a future proceeding may result in an order permanently foreclosing any future contact with the adult. [Citations.] (Id. at pp. 66-67.) 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. [Citation.] (In re Jacob E. (2004) 121 Cal.App.4th 909, 919.)

We review the juvenile courts decision to grant or deny a de facto parent petition for abuse of discretion. (In re Michael R. (1998) 67 Cal.App.4th 150, 156.) In most cases, the lower court does not abuse its discretion if substantial evidence supports its determination. (Ibid.)

Here, we cannot say the juvenile court abused its discretion. Insofar as the record shows, the only time that A.S. resided exclusively at appellants home was during the first four months of her life; and during that period, she was primarily in the care of her parents, Lili C. and appellants son, Jorge S. After Lili C. and Jorge S. separated, A.S. continued to reside at appellants home under Jorge S.s care three days per week from April 2005 through September 2006. After Jorge S. was killed, A.S. continued to visit appellant in her home a few days a week pursuant to an informal arrangement with A.S.s mother. After the juvenile court became involved with A.S., appellant was granted supervised visitation with A.S, every two weeks; but by that time A.S. was residing with her maternal grandmother.

Appellants situation is very similar to the paternal grandmothers situation inIn re R.J. (2008) 164 Cal.App.4th 219. In that case, the Third District affirmed the juvenile courts summary denial of the grandmothers request to be appointed a de facto parent for her grandchildren. The appellate panel could find no authority for the grandmothers contention that a party seeking de facto parent status is entitled to an evidentiary hearing on making a prima facie showing. (Id. at pp. 223-224.)

But even if such authority existed, the appellate court concluded there was no abuse of discretion in summarily denying the grandmothers request. (In re R.J., supra, 164 Cal.App.4th at p. 225.) In a supporting declaration, the grandmother described her involvement in the childrens lives, which included driving them between their parents homes, accompanying them to different activities, communicating with their teachers, and participating in their school activities. (Id. at p. 222.) The Third District noted that the grandmothers positive, nurturing, and loving relationship with her grandchildren, while invaluable, was insufficient to rise to de facto parent status. (Id. at pp. 224-225.) Because there was no evidence the grandmother had assumed a parental role on a day-to-day basis  fulfilling both the childs physical and psychological need for care and affection,  the juvenile court had not erred by summarily denying her request for such status. (Ibid.)

Similarly, here there is no evidence that appellant functioned as A.S.s primary day-to-day caregiver for any period of time, much less a substantial period of time. Furthermore, there was no evidence showing that A.S. viewed appellant as a parental figure. Instead, the evidence is consistent with the conclusion that appellant has acted as a loving grandmother to A.S., not as a de facto parent. Under these circumstances, we cannot say the court abused its discretion by summarily denying appellants petition for de facto parent status.

We also believe the court was entitled to consider appellants delay in seeking de facto parent status. Although appellant attended many of the juvenile court hearings and was undoubtedly aware that the proceedings were moving toward terminating reunification services and freeing A.S. for adoption by her maternal grandmother, appellant waited until after parental rights had been terminated to seek de facto parent status.

As we have seen, a grant of de facto parent status confers standing upon such persons to assert their own interest in the companionship, care, custody, and management of the child in dependency proceedings. (In re B.G, supra, 11 Cal.3d at p. 693, fn. omitted.) However, by the time the termination of parental rights has taken place and a permanent plan of adoption is being implemented, it is manifestly too late for a relative to assert rights to the companionship, care, custody, and management of the child. (Ibid.) At that point in the dependency proceedings, the focus has shifted from family reunification to the childs interest in a stable and permanent placement. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) Granting appellant de facto parent status at this late stage of the proceedings, and allowing her to assert her right to continue a purported parent-child relationship with A.S., would only serve to unduly delay and impermissibly burden the implementation of A.S.s permanent plan of adoption. (Id. at p. 1348 [after termination of parental rights, it becomes inimical to the interests of the minor to heavily burden efforts to place the child in permanent adoptive home].)[4]

IV.

DISPOSITION

The judgment is affirmed.

_________________________

RUVOLO, P. J.

We concur:

_________________________

SEPULVEDA, J.

_________________________

RIVERA, J.

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[1] Because this minor has an uncommon first name, we will reference the minor using initials only for protective nondisclosure of the minors identity.

[2] All subsequent undesignated statutory references are to the Welfare and Institutions Code.

[3] Subsequent reports indicate appellant continues to have twice monthly supervised visits with A.S.

[4] Because de facto parent status depends on the existence of judicial proceedings relating to custody and visitation, it has been held that such status is automatically extinguished by operation of law whenever the dependency itself is terminated. (See Patricia L., supra, 9 Cal.App.4th at p. 67; In re Brittany K. (2005) 127 Cal.App.4th 1497, 1513; In re Leticia S. (2001) 92 Cal.App.4th 378, 383, fn. 5; but see In re Joel H. (1993) 19 Cal.App.4th 1185, 1196 [termination of dependency proceedings did not terminate de facto parent status].)