In re U.S. CA2/8 ( 2024 )

Filed 1/25/24 In re U.S. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re U.S., a Person Coming B322175
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 22CCJP00126B)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
M.N.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County. Jean M. Nelson, Judge. Affirmed.
Vincent W. Davis, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyne R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jessica Buckelew, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________________
Appellant M.N., former caregiver, appeals from the juvenile
court orders denying her Welfare and Institutions Code1 section
388 petition and request for de facto parent status for baby U.S.
We conclude the juvenile court did not abuse its discretion in
denying M.N.’s section 388 petition because returning U.S. to
M.N.’s care would not be in U.S.’s best interest. We further
conclude that the juvenile court did not abuse its discretion in
denying M.N. de facto parent status for the same reasons it
denied her section 388 petition. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Baby U.S. came to the attention of the Los Angeles County
Department of Children and Family Services (DCFS) when she
was born in November 2021. The juvenile court declared U.S. a
dependent of the court under section 300 and removed U.S. from
Mother’s care.
Following U.S.’s discharge from the hospital, the juvenile
court temporarily placed U.S. with M.N., a Non-Relative
Extended Family Member (NREFM). M.N. lived in the same
building as U.S.’s Mother. M.N. then applied for Los Angeles
County Resource Family Approval (RFA) to have her home
approved for U.S.’s placement.
On February 18, 2022, DCFS learned that M.N. did not
bring U.S. to a February 17, 2022 medical exam. M.N. did not
bring U.S. to the first-scheduled appointment on December 9,
2021. M.N also did not bring U.S. to three Los Angeles County
Medical Hub clinic appointments.
The RFA division informed DCFS that it had concerns
about M.N.’s initial home assessment. The RFA division observed
1 All further statutory references are to the Welfare and
Institutions Code.
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the home to be cluttered, with furniture blocking windows and
emergency exits.
On March 8, 2022, the RFA division informed DCFS that
M.N. and the adults living with her, M.N.’s mother and adult
daughter, had not submitted to livescan fingerprinting despite
U.S. residing with them for 61 days. DCFS stated that although
M.N. reported “that a final walkthrough was completed, to our
knowledge, the home had not yet been approved [or] denied.”
On March 10, 2022, the Regional Center intake coordinator
notified DCFS that she attempted to contact M.N. and Mother by
voicemail and letter. DCFS then asked M.N. to call back because
otherwise the Regional Center would send an inactivation letter.
On March 15, 2022, the Regional Center informed DCFS that it
closed the referral for U.S. because they received no response from
Mother and M.N. M.N. reported to DCFS that she had contacted
the Regional Center and they told her she did not qualify for
services. DCFS contacted the Regional Center to clarify if they
had spoken to M.N. The Regional Center told DCFS that they
“had not spoken to [M.N.] and that it was concerning that the
caregiver would say that she did.”
On April 15, 2022, the juvenile court ordered DCFS to
conduct three unannounced home visits and to require M.N. to
take at least three random drugs tests. On April 20, 2022, M.N.
refused to test. On April 21, 2022, M.N. tested positive for
amphetamine, methamphetamine, and marijuana. On April 26,
2022, M.N. did not appear for her third test. After receiving her
April 21, 2022 lab results, DCFS removed U.S. from M.N.’s
custody and placed her with a new caregiver.
On May 5, 2022, M.N. requested to be withdrawn from the
RFA approval process. The RFA division provided M.N. with
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“a withdrawal letter with details on how to re-apply for RFA,
should she desire or the need arise.”
On May 16, 2022, M.N. reported that Mother sent M.N. a
video of one of Mother’s visits with U.S. M.N. told DCFS that
Mother “was high” in the video.
The new caregiver reported to DCFS that Mother called
M.N. during her visits with U.S. The new caregiver reported that
on May 23, 2022, Mother video called M.N. for forty minutes
during one of her visits with U.S. On the video call, M.N.
repeatedly told U.S. “that she is coming home.” The new
caregiver also reported that Mother and M.N. talked about the
DCFS social worker during the call.
On May 10, 2022, M.N. filed a section 388 petition to have
U.S. returned to her care. M.N. contended that she took care of
U.S. since birth, and that she had the “means, ability and capacity
to provide [U.S.] with a sa[f]e, healthy and loving home, just as we
have done so for [her] siblings.” She also contended that she
would be willing to facilitate reunification efforts for U.S. and her
parents. Further, M.N. stated she would adopt U.S. if the parents
did not reunify. On the same day, M.N. also filed a petition for de
facto parent status.
On May 27, 2022, the juvenile court held a hearing on
M.N.’s section 388 petition and request for de facto parent status.
The juvenile court admitted M.N.’s section 388 petition into
evidence. The court also admitted the jurisdiction and detention
reports. The court further admitted DCFS’s Last Minute
Information filed that day. In the Last Minute Information,
DCFS stated that M.N. was not an appropriate caregiver. “At the
tender age of the child, [DCFS] needs for the child’s caregiver to
be consistent and reliable.” The Last Minute Information detailed
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M.N.’s toxicology results, her difficulties with other service
providers, and her involvement with Mother.
The juvenile court stated that its tentative ruling was that
M.N. failed to make a prima facie showing on her section 388
petition. The juvenile court primarily based its ruling on M.N.
testing positive for methamphetamine and initially refusing to
test. The court further observed that M.N. also missed the next
test and then continued to test positive for marijuana.
While the juvenile court did not allow M.N. to testify, it
allowed counsel to present argument. However, counsel argued
facts that were not included in the petition. M.N.’s counsel
argued that M.N. believed that the marijuana she smoked may
have been laced with methamphetamine. Counsel also stated
that M.N. drug tested twice for her older child’s dependency case
and that “there were no issues coming from those test results.”
In contrast, the petition made no mention of M.N.’s drug use or
drug tests. Moreover, the petition contained no information about
M.N.’s own child being subjected to dependency proceedings, such
as whether M.N.’s child was removed from her care, what the
basis was for the removal, or that M.N.’s case plan for her own
child required her to drug test.
The juvenile court stated that its tentative ruling remained.
The court explained that it did not find credible that M.N. did not
know the marijuana was laced with methamphetamine. The
court also noted that M.N. had a long history of not being
responsive and cooperative with DCFS. The court stated, “and
I don’t even think regular use of marijuana is really appropriate
here with such a young child and she won’t be protective because
she is too close to the mother. It is not in the best interest of the
child, so the 388 is denied.” The court then ruled that it was
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denying the petition for de facto parent status for the same
reasons that it denied the section 388 petition.
M.N. timely appealed.
DISCUSSION
I. The juvenile court did not abuse its discretion in
denying the section 388 petition
DCFS argues that M.N. lacks standing to appeal the denial
of her section 388 petition because she is a NREFM. DCFS claims
under the language of section 388, even though any interested
party may file a section 388 petition, that does not necessarily
entitle the party to appeal the decision. We assume, without
deciding, that M.N. has standing to appeal the denial of the
section 388 petition. Even considering the merits, we conclude
that the juvenile court did not abuse its discretion in finding M.N.
failed to make a prima facie showing that returning U.S. to her
care would be in U.S.’s best interest.
A party may petition the court under section 388 to change,
modify or set aside a previous court order. The petitioning party
has the burden of showing, by a preponderance of the evidence,
that (1) there is a change of circumstances or new evidence, and
(2) the proposed change is in the child’s best interests. (§ 388;
In re Jasmon O. (1994) 8 Cal.4th 398, 415, 33.)
“The parent need only make a prima facie showing to
trigger the right to proceed by way of a full hearing.” (In re
Marilyn H. (1993) 5 Cal.4th 295, 309–310.) “ ‘[I]f the petition
presents any evidence that a hearing would promote the best
interests of the child, the court will order the hearing.’ ” (In re
Jasmon O., supra, 8 Cal.4th at p. 415.) “However, if the liberally
construed allegations of the petition do not make a prima facie
showing of changed circumstances and that the proposed change
would promote the best interests of the child, the court need not
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order a hearing on the petition. [Citations.] The prima facie
requirement is not met unless the facts alleged, if supported by
evidence given credit at the hearing, would sustain a favorable
decision on the petition.” (In re Zachary G. (1999) 77 Cal.App.4th
799, 806.) In determining whether the petition makes the
necessary showing, the court may consider the entire factual and
procedural history of the case. (In re Justice P. (2004) 123
Cal.App.4th 181, 188–189.)
“The conditional language of section 388 makes clear that
the hearing is only to be held if it appears that the best interests
of the child may be promoted by the proposed change of order,
which necessarily contemplates that a court need not order a
hearing if this element is absent from the showing made by the
petition.” (In re Zachary G., supra, 77 Cal.App.4th at pp. 806–
807.)
Conclusory allegations are insufficient to make a prima
facie showing. “If a petitioner could get by with general,
conclusory allegations, there would be no need for an initial
determination by the juvenile court about whether an evidentiary
hearing was warranted. In such circumstances, the decision to
grant a hearing on a section 388 petition would be nothing more
than a pointless formality.” (In re Edward H. (1996) 43
Cal.App.4th 584, 593.)
On appeal, M.N. argues that the juvenile court erred in
denying an evidentiary hearing because “she repeatedly requested
that the minor be placed with her.” Without citing to the record,
M.N. further argues that “her children had been returned to her
care.” M.N.’s repeated requests that U.S. be placed with her is
not evidence of changed circumstances or that placement with
M.N. would be in the best interest of U.S. (See In re Edward H.,
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supra, 43 Cal.App.4th at p. 593.) Further, the petition did not
contain any allegations regarding M.N.’s children being subjected
to dependency proceedings. M.N. provided no context regarding
her children’s dependency cases, such as the age of the children,
date of removal, and when they were returned to M.N.’s care.
M.N. thus fails to demonstrate on appeal a change in
circumstances that would promote the best interests of U.S. (See
In re Zachary G., supra, 77 Cal.Ap.4th at p. 808.)
Moreover, the juvenile court did not err in concluding there
was no prima facie showing that returning seven-month-old U.S.
to M.N.’s care was in the child’s best interests, because M.N.
refused to test prior to testing positive for methamphetamine
while U.S. was in her care, and then missed her third test. M.N.
tested positive for methamphetamine on April 21, 2022, and filed
her petition on May 10, 2022, less than a month after her positive
drug test. M.N.’s petition did not contain any claims about her
drug use. Her counsel argued for the first time at the hearing
that M.N.’s marijuana was laced with methamphetamine. M.N.
does not argue on appeal that counsel’s argument on this point
should be a basis for reversing the juvenile court’s prima facie
finding. Further, the record established that M.N. was enmeshed
with Mother. Mother called M.N. during visits with U.S., and
M.N. told U.S. that “she was coming home.” Mother and M.N.
also lived next to each other in the same apartment building.
While the court did not specify that U.S.’s missed medical
appointments were also a basis for its ruling, it noted that M.N.
had a long history of not being responsive or cooperative with
DCFS. As such, there was no abuse of discretion when the court
concluded that M.N. was not reliable enough to care for a seven-
month-old infant. Moreover, the petition was conclusory because
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it merely asserted that returning U.S. to M.N.’s care would be in
her best interest, and did not state a basis for any change in
circumstances. (See In re Edward H., supra, 43 Cal.App.4th at
p. 593.) Thus, the juvenile court did not abuse its discretion in
ruling that the section 388 petition failed to make a prima facie
showing that returning U.S. to M.N’s care would be in U.S.’s best
interest. (See In re Zachary G., supra, 77 Cal.Ap.4th at p. 808.)
Accordingly, the juvenile court was not required to conduct a full
evidentiary hearing on M.N.’s section 388 petition. (Ibid.)
II. The juvenile court did not abuse its discretion in
denying de facto parent status to M.N.
M.N. asks that we reverse the juvenile court’s ruling
denying her de facto parent status. Again, we find no abuse of
discretion.
“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.” (In re Leticia S. (2001) 92 Cal.App.4th 378,
381.) A de facto parent is not entitled “to reunification services,
visitation, custody, [or] continued placement of the child.” (In re
A.F. (2014) 227 Cal.App.4th 692, 700.) Rather, de facto parent
status “merely provides a way for the de facto parent to stay
involved in the dependency process and provide information to the
court.” (In re Bryan D. (2011) 199 Cal.App.4th 127, 146.)
“The factors courts generally consider for determining de
facto parent status 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
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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
[between the adult and the child.]’ ” (In re Bryan D., supra,
199 Cal.App.4th at p. 141.) “De facto parent status is ordinarily
liberally granted on the theory that a court only benefits from
having all relevant information on the best interests of the child.
However, the determination depends on the specific
circumstances of each case.” (Ibid.)
“A person requesting de facto parent status has the burden
to show by a preponderance of the evidence he or she qualifies for
that status.” (In re Abigail L. (2022) 75 Cal.App.5th 169, 178.)
“We review a juvenile court’s decision denying a request for de
facto parent status for an abuse of discretion.” (Ibid.) “ ‘ “In most
cases, the lower court does not abuse its discretion if substantial
evidence supports its determination to grant or deny de facto
parent status.” ’ ” (In re Bryan D., supra, 199 Cal.App.4th at
p. 141.)
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.) An adult may
become ineligible for de facto parent status if they have “act[ed] in
a manner that is fundamentally inconsistent with the role of a
parent” by acting in an unsuitable manner. (In re Bryan D.,
supra, 199 Cal.App.4th at p. 142.)
In re Merrick V. (2004) 122 Cal.App.4th 235 is instructive.
Although the grandmother in that case assumed daily care and
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was psychologically bonded with two-year-old twins, she left them
in the care of their mother, “whom she knew used drugs and had
an unstable lifestyle.” (Id. at p. 257.) As such, our colleagues in
the Fourth District concluded that the juvenile court did not
abuse its discretion in denying de facto parent status to the
grandmother. (Ibid.)
Further, in In re Jacob E. (2004) 121 Cal.App.4th 909,
a grandmother failed to take her grandson to routine medical and
dental appointments, failed to enroll him in school, and
misrepresented to the court, DCFS, and her grandson’s lawyer
that she had done so. (Id. at p. 923.) After her grandson was
removed from her care, her grandson revealed she would hit him
with a stick and that he had been exposed to domestic violence.
(Id. at p. 920.) Our colleagues in Division Three of this district
held that even though the grandmother cared for her grandson for
five years, during the latter part of that period she was no longer
cooperating with DCFS, and her recent care of her grandson was
“inadequate and fundamentally at odds with the role of a parent.”
(Id. at pp 920–921.)
Here, even assuming that M.N. otherwise qualifies for de
facto parent status, there is substantial evidence to support that
M.N. “abandoned the parental role.” (In re Bryan D. supra,
199 Cal.App.4th at p. 146.) The juvenile court stated that it
denied M.N.’s petition for de facto parent status for the same
reasons it denied her section 388 petition. Like In re Merrick V.,
supra, 122 Cal.App.4th, the record shows that M.N. was
enmeshed with Mother, who was the reason for U.S.’s initial
removal. The risk of harm to U.S. is higher given that there is
evidence to support that M.N., who was supposed to be U.S.’s
caretaker, was using drugs. U.S. was only five months old at the
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time DCFS removed her from M.N.’s care. This division has
observed that infants or toddlers are at higher risk for substantial
harm. (See In re Bryan D., at p. 144.) Thus, U.S. was particularly
vulnerable at a tender age.
Similar to In re Jacob E., there is evidence to support that
M.N. was unreliable and failed to take U.S. to medical
appointments. M.N. also failed to follow up with service providers
and complete her home approval process. M.N. further made
misrepresentations to DCFS regarding her contact with service
providers. Finally, M.N. defied court orders by initially refusing
to drug test then testing positive for methamphetamine. M.N.
then did not attend her third random drug test. As such, there
was substantial evidence to support that M.N.’s conduct during
the period she cared for U.S. “was inadequate and fundamentally
at odds with the role of a parent.” (In re Jacob E., supra,
121 Cal.App.4th at p. 921.)
Accordingly, the juvenile court did not abuse its discretion
in denying M.N. de facto parent status.
DISPOSITION
The juvenile court orders are affirmed.
VIRAMONTES, J.
WE CONCUR:
GRIMES, Acting P. J.
WILEY, J.
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