In re D v. CA3 ( 2021 )

Filed 3/26/21 In re D.V. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Butte)
----
In re D. V., a Person Coming Under the Juvenile C091368
Court Law.
BUTTE COUNTY DEPARTMENT OF (Super. Ct. No. 19DP00120)
EMPLOYMENT AND SOCIAL SERVICES,
Plaintiff and Respondent,
v.
N. S.,
Defendant and Appellant.
N. S., the minor’s former foster parent, appeals from the juvenile court’s order
denying her petition for de facto parent status. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The minor was born in May 2019 and placed with N. S. as a foster child. While
the minor was in the hospital, N. S. visited the nursery to hold and interact with her. The
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minor was released to go home with N. S. and stayed at N. S.’s home for approximately
five months. The minor was then placed with a prospective adoptive family.
N. S. filed a statement with the court protesting the minor’s removal. In the
statement, N. S. explained that removing the minor was harmful both to the minor and to
N. S.’s older daughter, because the three of them had been a family for five months at
that point. N. S. explained the girls got along well and that N. S. was qualified to adopt
the minor. N. S. discussed conversations she had with the Hmong Cultural Center and
other Hmong acquaintances to prepare herself to help the minor understand the minor’s
Hmong heritage. N. S. also detailed her daily activities, including holding and singing to
the minor, and playing games with her older daughter and the minor to make the minor
laugh. N. S.’s older daughter cried after dropping the minor off with the prospective
parents, and N. S. “wanted to cry but . . . couldn’t for [the older daughter’s] sake.”
N. S. then filed a request for prospective adoptive parent designation. In the
request, N. S. wrote she had first asked to be designated as the minor’s permanent
placement when the minor had been released from the hospital. She made the request
again at a family meeting the next month. In September 2019, Lynette Dornon, an
adoption social worker, interviewed N. S. at home. Dornon expressed concern about
N. S.’s ability to help the minor learn about the minor’s Hmong heritage and the
possibility that the minor would have to compete with N. S.’s older daughter, who had
special needs, for attention. N. S. was ultimately told a different family had been chosen.
In November 2019, N. S. filed a request to be designated a de facto parent. N. S.
explained the minor had lived with her for approximately five months, she had not
attended any of the minor’s court hearings, and had not sent any written reports to the
court about the minor. She described her daily activities with the minor, including taking
the minor for walks outdoors in her baby carrier. She left blank the section on the request
asking for any unique information she possessed about the minor.
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The juvenile court held a hearing on both of N. S.’s requests in January 2020.
Social worker Jose Medrano-Santos and N. S. testified at the hearing. Medrano-Santos
explained he was responsible for determining the minor’s placement, while Dornon was
responsible for determining the adoptable home. After N. S. took the minor home from
the hospital, Medrano-Santos observed them interacting on three separate occasions when
he performed home visits. During each visit, he saw the minor making eye contact with
and cooing at N. S. He believed N. S. responded appropriately to the minor’s cues and
did not have any concerns the two were not bonding well. He did not believe the minor
was bonded to N. S.’s older daughter. On one occasion, he saw N. S.’s older daughter
acting “a little hyperactive,” but N. S. asked her to calm down, which Medrano-Santos
thought was appropriate. He did not have any concerns about the rate of the minor’s
development in N. S.’s care. He testified N. S. had provided him various information
about the minor, including that she did not like riding in a car seat or being placed on the
floor, but enjoyed being carried in a Moby wrap.
In December 2019, Medrano-Santos and N. S. participated in a family meeting
where they discussed how to facilitate visits between N. S. and the minor. They
determined N. S. could visit the minor at an adoption agency office in the Bay Area, but
N. S. did not want to discuss the issue and said, “Well, that can be settled in court.” N. S.
did not request any visits after this meeting and no visits had taken place by the time of
the hearing. Medrano-Santos assessed the minor after her placement with the prospective
adoptive family and reported she was doing “really well.”
N. S. testified the minor was in her care from May to October 2019. She was
aware when court hearings regarding the minor were occurring, but did not attend any
because she did not know she “was supposed to be at any of them.” She decided she
wanted to be the permanent placement for the minor when the minor was still in the
hospital. She testified that when she first brought the minor home, the minor was not
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eating well, so she carried the minor strapped to her body so the minor could feel her
heat. She also sang to the minor, rocked her in a rocking chair, and talked to her.
After she was informed she would not be the permanent placement for the minor,
N. S. hosted visitations for the prospective adoptive family. If N. S. were a de facto
parent, she would provide information about the minor’s development and medical
history. On cross-examination, she acknowledged she had already provided all the
information she had about the minor to the county. She agreed she did not have any new
information about the minor’s developmental needs. She explained the only unique
information she had was about the minor’s emotional and psychological status, but
admitted that information had likely changed by the time of the hearing. As of the
hearing date, N. S. had “no information to provide to the Court on how [the minor’s]
doing presently, or whether or not she’s developing normally.”
The juvenile court denied the request for de facto parent status, saying: “All right,
the Court is going to rule that she does not qualify as a defacto parent. She might have
qualified back in September, but she clearly doesn’t qualify now. [¶] . . . . [¶] Has no
independent information about the child’s feeding schedule, the child[’s] sleeping
schedule, what the child’s current needs are. Unfortunately, a couple of those things
happened when I was on vacation, I guess her asking for -- and a couple of the documents
being filed. But I have looked back, and the record I think is clear, I just don’t see that
she can offer anything to qualify as a defacto parent, and the Court is going to deny that
request.” The court later issued a short written order finding “as of the time and date of
this hearing, the former caregiver does not possess unique information with respect to the
child; that the child has no current special needs with respect to which the former
caregiver would be able to provide input to the court or to the agency; that, at this time,
the former caregiver does not meet the requirements of being designated as a de facto
parent.”
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DISCUSSION
N. S. contends the juvenile court abused its discretion when it denied her petition
because: (1) N. S. met the criteria for de facto parent status, and (2) the court improperly
used the fact N. S. was no longer the minor’s caretaker as a factor in the analysis. We
disagree.
“ ‘De facto parent’ means 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).) If the juvenile court finds that
a person meets this standard, the court may grant him or her standing to participate as a
party to the proceeding, with the rights to be present at any hearing at which the status of
the dependent child is at issue, to be represented by retained or appointed counsel, and to
present evidence. (Cal. Rules of Court, rule 5.534(a).)
“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. However, the courts have identified several factors relevant to the decision.
Those considerations 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.] . . . Because a court can only
benefit from having all relevant information, a court should liberally grant de facto parent
status.” (In re Patricia L. (1992) 9 Cal.App.4th 61, 66-67, fns. omitted.)
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
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unless the court “has exceeded the limits of legal discretion by making an arbitrary,
capricious, or patently absurd determination.” (Ibid.)
The juvenile court’s decision was based on evidence that N. S. did not meet the
third factor in the de facto parent analysis: she did not possess unique information about
the minor. This finding was supported by N. S.’s testimony acknowledging she had
already provided all the information she had about the minor to adoption services. N. S.
identified the minor’s “emotional” and “psychological” status as unique information she
had about the minor, but did not point to any specific details or facts she knew. And, by
the time of the hearing, the minor was approximately eight months old and had been out
of N. S.’s care for three months. N. S. agreed that three months was a significant period
of time for an eight-month-old child, and that any information she did have would have
changed in that time. Assuming N. S. originally had unique information to provide to the
juvenile court, the court concluded the information was stale and would not be relevant or
helpful. Thus, one of the purposes of de facto parent status -- providing the court with
“ ‘critical information’ ” resulting from the de facto parent’s “ ‘close and continuing
relationship with [the] child’ ” -- was not met. (In re Brittany K. (2005) 127 Cal.App.4th
1497, 1513, fn. 19.)
The other four Patricia L. factors were evenly split: N. S. and the minor were
psychologically bonded and N. S. did assume the role of parent for a substantial period of
time. But N. S. had not attended any juvenile court hearings and would not be precluded
from contacting the minor in the future. Given this split, it was reasonable for the court
to treat the unique information factor as the primary factor informing the decision.
N. S. argues the juvenile court inappropriately denied her request simply because
she was not the minor’s current caretaker, pointing to the court’s comment that she
“might have qualified [as a de facto parent] back in September, but she clearly doesn’t
qualify now.” But this argument relies on a misreading of the court’s statement. In
context, the statement meant only that N. S.’s knowledge of the minor, while current in
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September, had become dated by the time of the hearing in January. And, because N. S.
had chosen not to visit the minor in the interim, she had no way of independently
updating any information she had about the minor. The court was not denying the
request because of N. S.’s status as a former caretaker, but rather commenting on N. S.’s
ability to provide information that could assist the court. Because one of the primary
purposes of de facto parent status is the provision of such information, we see no error in
the court’s decision to deny N. S. de facto parent status.
DISPOSITION
The order denying de facto parent status is affirmed.
/s/
Robie, J.
We concur:
/s/
Blease, Acting P. J.
/s/
Murray, J.
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