In re Abigail L. CA2/7

Filed 2/10/22 In re Abigail L. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re ABIGAIL L., a Person B310601
Coming Under the Juvenile
Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 19CCJP00630A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
HEATHER W.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Stephen C. Marpet, Juvenile Court Referee.
Reversed with directions.
Deborah Dentler for Defendant and Appellant.
Janet G. Sherwood for Advokids as Amicus Curiae on
behalf of Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jane E. Kwon, Principal Deputy
County Counsel, for Plaintiff and Respondent.
____________________________________
INTRODUCTION
Heather W., the former foster parent of Abigail L., appeals
from the juvenile court’s order denying her request for de facto
parent status. Because the juvenile court erred in ruling
Heather’s request was moot, we reverse the order and direct the
juvenile court to enter a new order granting the request.
FACTUAL AND PROCEDURAL BACKGROUND
A. Abigail Is Placed with Heather
After the juvenile court removed her from her parents,
Abigail lived with Heather for almost two years, from February 1,
2019, when Abigail was eight weeks old, to November 24, 2020,
the date of the hearing that prompted this appeal.
In April 2019 the juvenile court declared Abigail a
dependent child of the court under section 300 of the Welfare and
Institutions Code1 and denied her parents family reunification
services.
Heather previously adopted two daughters from foster care
and had another child placed with her when Abigail arrived.
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
Heather provided for all of Abigail’s “physical and essential
needs” and was the only parental figure in Abigail’s life. Heather
stated that Abigail called her “MaMa” and each of Heather’s
daughters “Sissy” and that Abigail was “deeply bonded” with
Heather and her children. Heather committed to adopting
Abigail if reunification failed.
B. Heather’s Relationship with Abigail’s Half-sister
Deteriorates
At a juvenile court hearing, Heather learned Abigail had a
12-year-old half-sister, Anahi L. Anahi was also a dependent of
the juvenile court, but had never lived with Abigail. The juvenile
court ordered visitation for Anahi and Abigail beginning in May
2019, which Heather facilitated. Heather described Anahi as
“disengaged,” “uninterested,” and “depressed” during Anahi’s
visits with her toddler half-sister. At Anahi’s request, in June
2019 Heather agreed to let Anahi move in with her and Abigail.
According to Heather, the Los Angeles County Department of
Children and Family Services said Anahi’s placement with
Heather would not be for very long and would end when Anahi
moved to Arizona to live with her aunt and uncle (who were
unrelated to Abigail). Anahi began living with Heather in
August 2019.
Heather claimed that Anahi “spiraled downhill
psychologically” after the juvenile court terminated the parental
rights of Anahi’s parents. Anahi began “lashing out” at Heather
and her children and threatened to “kidnap” Abigail and “run
away to Arizona.” In March 2020 Anahi told her social worker
3
that Heather slapped her. Heather denied the allegation and
asked the Department to remove Anahi from her home. The
Department’s investigation of physical abuse “was closed as
inconclusive but the investigation led to an additional allegation
of general neglect and this allegation was closed as
substantiated.” The Department briefly placed Anahi in another
foster home before placing her with her aunt and uncle in
Arizona.
C. Heather Requests De Facto Parent Status, and the
Department Files Its Section 366.26 Report
Meanwhile, on January 28, 2020, Heather filed a request
for de facto parent status. Heather stated that she provided for
all of Abigail’s daily physical, emotional, social, and
developmental needs and that she knew Abigail’s nap and
bedtime routines, her likes and dislikes, and how to soothe her.
Heather also said she took Abigail to her doctor appointments,
attended court hearings in Abigail’s dependency case, and
provided written reports to the court about Abigail.
At a February 4, 2020 hearing on Heather’s request for
de facto parent status, the juvenile court stated: “I don’t see
somebody’s trying to take the child away from you. You do get
additional rights, once we do terminate parental rights, so you
don’t need a de facto motion for that. So, if we terminate
parental rights 90 days from today in May then we don’t need it.”
The court continued the hearing on Heather’s request to May 20,
2020 to coincide with the selection and implementation hearing
under section 366.26.2
2 Heather asserts that she originally requested de facto
parent status before January 28, 2020, but that the clerk’s
4
Heather filed another request for de facto parent status on
May 13, 2020. She reiterated she had cared for Abigail
continuously since Abigail was an infant, provided for all of
Abigail’s needs, attended juvenile court hearings involving
Abigail, and facilitated Abigail’s visits with her older half-sister.
Heather also stated she had recently learned the Department
had conferred with Anahi’s attorney and her court-appointed
special advocate “about whether to move [Abigail] to Arizona.”
Heather stated Anahi’s aunt and uncle in Arizona were “total
strangers to [Abigail],” did not visit or contact her, and did not
contribute to her support.
On May 14, 2020 the Department filed its section 366.26
report. The Department detailed its concerns with Abigail’s
continued placement with Heather. In particular, the report
stated the Department had “some doubts about the
appropriateness” of Heather as Abigail’s prospective parent
because of Heather’s “swift decision” to ask the Department to
remove Anahi from her home. The Department stated that it had
to consider “whether this could happen again with Abigail” and
that placing Abigail with Anahi was “most likely in the best
interest of” Abigail.
transcript does not include any documents concerning that
request and that the reporter’s transcript does not include
proceedings from the date Heather claims the juvenile court
denied that request. According to Heather, the court denied the
prior request for the same reason it denied the January 28, 2020
request: Heather did not need de facto parent status because no
one was trying to place Abigail with anyone other than Heather.
Heather did not appeal from either of these orders.
5
The Department also reported that, because of the
substantiated allegation Heather had neglected Anahi,
Community Care Licensing was going to investigate whether to
rescind Heather’s foster home certification. The Department
stated that, because of “the current circumstances and pending
investigations,” it could not recommend Heather as the
prospective adoptive parent of Abigail. Instead, the Department
reported it would evaluate placing Abigail with Anahi’s relatives
in Arizona.
The record does not indicate what transpired at the hearing
scheduled for May 20, 2020, but on June 10, 2020 the juvenile
court continued the section 366.26 hearing and the hearing on
Heather’s request for de facto parent status to November 24,
2020. Heather did not receive notice the juvenile court would
hear her request on November 24, 2020, but she did receive
notice the court would have a hearing designated “Other” on that
date.3 The notice informed Heather the social worker
recommended Abigail remain in foster care with a permanent
plan of “return home, adoption, . . . legal guardianship, or
placement with a fit and willing relative, as appropriate.”
On July 14, 2020 the Department notified Heather it
intended to remove Abigail from Heather’s home in 14 days and
place Abigail with her sister in Arizona because Heather “was
unwilling to let Abigail visit [the] caretakers of her half-sister
3 We grant Heather’s motion for judicial notice of a document
titled “Notice of Review Hearing – Juvenile,” served on Heather
on October 26, 2020. (See Evid. Code, §§ 452, 459.) We otherwise
deny Heather’s motions for judicial notice filed on July 19, 2021
and October 25, 2021.
6
during a planned sibling visit.” The notice prompted counsel for
Abigail to ask the court to prevent the Department from
removing Abigail without a hearing. Counsel for Abigail stated
Department social workers were “frustrated with [Heather’s]
communication with them, among other issues, but nothing
pertaining to the health and well-being of Abigail.”4 The
Department rescinded the 14-day notice because it had not yet
approved the home of Anahi’s aunt and uncle as a potential
placement for Abigail. On November 18, 2020 the Department
requested another 120 days to approve Abigail’s placement with
Anahi’s relatives.
D. The Juvenile Court Denies Heather’s Request for
De Facto Parent Status and Places Abigail with
Anahi’s Relatives in Arizona
Heather attended the November 24, 2020 hearing remotely
and was represented by pro bono counsel. The Department
opposed Heather’s request for de facto parent status,
recommended the court place Abigail with her sister in Arizona,
and asked the court to continue the section 366.26 hearing until
4 Heather filed a declaration in support of counsel for
Abigail’s request, claiming the Department’s notice may have
been motivated by Heather’s involvement in a civil lawsuit she
had filed against the Department in August 2014 regarding the
procedural rights of foster parents. Although Heather and the
other plaintiffs in that case settled the lawsuit in 2017, there
were still compliance proceedings in court. Heather received the
Department’s 14-day notice of its intent to remove Abigail a few
hours after counsel for Heather in the civil action appeared in
court to request a compliance hearing.
7
the Department could assess Abigail’s placement in Arizona.
Counsel for the Department argued that Heather’s request for de
facto parent status would be moot after the court placed Abigail
in a different home and that the court should deny the request
because of “the incident that occurred with [Anahi] in the home.”
Counsel for Abigail agreed with the Department and said she did
not believe Heather was “sincere with regards to pursuing sibling
visitation.” Counsel for Abigail described several incidents where
Heather reportedly “thwarted” Abigail’s visits with Anahi.
Counsel for Heather denied the allegations against Heather
and observed that Heather, as a nonparty, did not have access to
the Department’s report providing the details of those allegations
and that the Department had not discussed any of the allegations
with Heather. Counsel for Heather asked the court to allow
Heather to make a statement refuting the allegations. On the
merits of the request, counsel argued that Heather met all of the
criteria for de facto parent status, that Abigail was “profoundly
bonded” with Heather, that Abigail regarded Heather as her
mother, and that removing Abigail from Heather would interfere
with the psychological bond between them. Counsel for Heather
explained Abigail’s visits with Anahi were short because Abigail
was only two years old and cell phone calls with a child that age
“are difficult.” Counsel said Heather would enter into a post-
adoption contact agreement to ensure visits with Anahi
continued.
The juvenile court did not rule on the request to allow
Heather to make a statement. The court, stating that the
“primary goal” is “placing children together,” placed Abigail on an
extended visit with Anahi in Arizona. The court explained
Abigail’s placement in Arizona was “not for anything [Heather]
8
has done” and said Anahi’s removal from Heather’s home was a
“secondary issue.” The court denied Heather’s request for de
facto parent status, stating: “I think I did indicate that the
primary goal in this is to [place] this child with her sibling. It
puts your motion for de facto [parent status] moot.” The court
continued the section 366.26 hearing to February 2021. Heather
timely appealed.
Following Heather’s appeal, the juvenile court identified
adoption as the permanent plan for Abigail and continued the
section 366.26 hearing to March 2022 and the permanency
planning review hearing to May 2022.5 Abigail has been placed
with Anahi’s relatives in Arizona since November 24, 2020.
DISCUSSION
Heather contends the juvenile court erred in denying her
request for de facto parent status, arguing that the request was
not moot and that she did not receive proper notice of the
November 24, 2020 hearing. We agree with Heather’s first
argument and need not address the second.6
5 We take judicial notice under Evidence Code sections 452
and 459 of the juvenile court’s November 16, 2021 and
December 8, 2021 orders.
6 Heather also argues the juvenile court misunderstood the
law when the court stated that the “primary goal” was to place
Abigail with Anahi. This appeal, however, does not involve the
merits of the court’s decision to place Abigail with Anahi in
Arizona. Even as a de facto parent, Heather would not have
standing to argue the trial court erred in selecting Abigail’s
9
A. Applicable Law and Standard of Review
“‘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 [a] child’s physical and
psychological needs.’” (In re Justin O. (2020) 45 Cal.App.5th
1006, 1015; see In re R.J. (2008) 164 Cal.App.4th 219, 223;
Cal. Rules of Court, rule 5.502(10).) In discussing when the
juvenile court should allow foster parents to participate as
parties in the proceedings, the Supreme Court in In re B.G.
(1974) 11 Cal.3d 679 stated that “a person who assumes the role
of parent, raising the child in his [or her] own home, may in time
acquire an interest in the ‘companionship, care, custody and
management’ of that child.” (Id. at p. 692, fn. omitted.) Such
de facto parents “should be permitted to appear as parties in
juvenile court proceedings . . . to assert and protect their own
interest in the companionship, care, custody and management of
the child.” (Id. at p. 693; accord, In re B.S. (2021) 65 Cal.App.5th
888, 893-894.) Consistent with the Supreme Court’s holding in
B.G., rule 5.534(a) of the California Rules of Court provides:
placement. (See In re B.S. (2021) 65 Cal.App.5th 888, 897
[a de facto parent’s legal rights are not injuriously affected by an
erroneous placement decision]; In re P.L. (2005) 134 Cal.App.4th
1357, 1361 [a de facto parent does not have standing to appeal a
placement decision]; but see In re Vincent M. (2008)
161 Cal.App.4th 943, 953 [de facto parents had standing to
appeal an order granting a section 388 petition by the presumed
father for reunification services, where the juvenile court allowed
the de facto parents to file an opposition to the petition and told
them they could appeal an adverse decision].)
10
“On a sufficient showing, the court may recognize the child’s
present or previous custodian as a de facto parent and grant him
or her standing to participate as a party in the dispositional
hearing and any hearing thereafter at which the status of the
dependent child is at issue. The de facto parent may: [¶] (1) Be
present at the hearing; [¶] (2) Be represented by retained counsel
or, at the discretion of the court, by appointed counsel; and [¶]
(3) Present evidence.” (See In re B.S., at p. 894.)
“‘The decision to grant de facto parent status depends on an
assessment of the particular individual and the facts of the case.’”
(In re Justin O., supra, 45 Cal.App.5th at p. 1015; see In re
Bryan D. (2011) 199 Cal.App.4th 127, 141.) “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 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 Justin O., at p. 1015; see In re Bryan D.,
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.’” (In re Justin O.,
at p. 1015; see In re Bryan D., at p. 141.)
A de facto parent has “no right to reunification services,
visitation, custody, [or] continued placement of the child . . . .”
(In re A.F. (2014) 227 Cal.App.4th 692, 700; see In re Bryan D.,
supra, 199 Cal.App.4th at p. 146.) “De facto parent status merely
allows a person who has assumed the role of parent of a child to
11
participate in the court hearings and share their ‘legitimate
interests and perspectives’ with the juvenile court as it makes
decisions about the child’s future care and welfare. [Citation.]
Granting de facto parent status does not mean the child will be
placed with the de facto parents. The 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., at
p. 146; accord, In re A.F., at p. 700; see In re Brianna S. (2021)
60 Cal.App.5th 303, 314 [“Designating a person as a de facto
parent gives that person ‘procedural rights’ in the ongoing
dependency proceedings, such as the right to be present at
hearings, to be heard and to retain counsel, but de facto parent
status does not grant the person any substantive rights to
‘reunification services, . . . custody, [or] continued placement of
the child.’”].)
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 Justin O., supra, 45 Cal.App.5th at p. 1015.)
We review a juvenile court’s decision denying a request for
de facto parent status for an abuse of discretion. (Ibid.; In re
Bryan D., supra, 199 Cal.App.4th at p. 141.)
B. The Juvenile Court Abused Its Discretion in Denying
Heather’s Request for De Facto Parent Status
No one disputed that Heather met the requirements for
de facto parent status or argued that her conduct disqualified her
from that designation.7 And nothing contradicted Heather’s
7 The allegations about Heather’s difficulties with Anahi did
not disqualify Heather from de facto parent status for Abigail.
(See In re Bryan D., supra, 199 Cal.App.4th at pp. 142-144, 146
12
statements that she had a strong bond with Abigail, that she had
assumed the role of Abigail’s parent for a substantial period of
time, that she possessed unique information about Abigail, and
that she attended Abigail’s juvenile court hearings. Thus, the
juvenile court should have granted Heather’s request for de facto
parent status. (See In re Justin O., supra, 45 Cal.App.5th at
p. 1016 [juvenile court abused its discretion in denying a
grandmother’s request for de facto parent status where the court
“failed to consider the relevant criteria and identified no factual
support for its conclusion that Grandmother did not qualify”];
In re Bryan D., supra, 199 Cal.App.4th at pp. 142, 146 [juvenile
court abused its discretion in denying a grandmother de facto
parent status where all the factors supported granting her that
status].)
The juvenile court’s order placing Abigail with Anahi’s aunt
and uncle in Arizona did not make Heather’s request for de facto
parent status moot. California Rules of Court, rule 5.534(a)
allows a juvenile court to recognize a child’s “present or previous
[a person who qualifies for de facto parent status does not become
ineligible unless the person “directly or indirectly cause[d] the
initiation of dependency proceedings” and “betrayed or
abandoned the parental role,” subjected the child “to serious
abuse,” inflicted “substantial harm” on the child, or acted “in a
manner fundamentally inconsistent with the parental role”];
cf. In re Kieshia E. (1993) 6 Cal.4th 68, 78 [“any adult who causes
the onset of dependency proceedings by committing sexual or
other serious physical abuse upon a child in his charge has
betrayed and abandoned, not embraced, ‘the role of a parent,’”
and by “acting in a manner so fundamentally inconsistent with
the parental role, the perpetrator forfeits any opportunity to
attain the legal status of de facto parent and its attendant
privilege of participation and advocacy”].)
13
custodian” as a de facto parent. (Italics added; see In re
Patricia L. (1992) 9 Cal.App.4th 61, 67 [if the factors for
determining de facto parent status apply, “it is immaterial
whether the adult was the ‘child’s current or immediately
succeeding custodian’”].) In light of Abigail’s lengthy placement
with Heather and Heather’s experience with Anahi, Heather
likely would have had unique and relevant information to provide
the court at the continued hearing in February 2021, and the
record leaves no doubt Heather and Abigail still would have had
a psychological bond. Indeed, the court ordered the Department
to “set up video visits with [Heather] to smooth [Abigail’s]
transition to her new home.” Thus, Heather’s request for de facto
parent status, even after the court placed Abigail with Anahi’s
relatives, was not moot.
The Department argues any error was harmless because
Heather attended Abigail’s juvenile court hearings, Heather
submitted reports about Abigail, and her attorney argued on her
behalf at the hearings. “Arguably,” the Department asserts,
Heather “exercised all of the rights afforded to a de facto parent,
even without the title.” But she didn’t. The court did not allow
Heather to provide evidence or testify at the November 24, 2020
hearing, which may have deprived the court of relevant
information regarding the best placement for Abigail. (See
In re A.F., supra, 227 Cal.App.4th at p. 701 [“The key reason for
affording de facto parents standing to appear and participate is
so they may provide critical information that assists the court in
determining what disposition is best for the child.”]; see also
In re B.G., supra, 11 Cal.3d at p. 693 [de facto parents aid the
court in making “‘a judicious appraisal of all available evidence
bearing on the child’s best interests’ including an evaluation of
14
the relative merits of alternative custody awards”]; In re B.S.,
supra, 65 Cal.App.5th at p. 894 [same].) In addition, as a de facto
parent, Heather would have been able to ask the court to appoint
counsel for her; that she was represented by pro bono counsel for
some of the proceedings did not preclude her from requesting
court-appointed counsel in the future. And going forward, as a
de facto parent she will be entitled to notice of, and to participate
in, future proceedings involving Abigail, including the hearings
currently scheduled for March 2022 and May 2022.
The Department also argues any error was harmless
because, now that Abigail has been living with Anahi in Arizona
for over a year, Heather can no longer provide the juvenile court
with “current and unique information about Abigail.” Perhaps,
but the Department does not argue Heather’s appeal is moot, and
the juvenile court in future proceedings can determine how much
weight, if any, to give to evidence offered by Heather. (See
In re A.F., supra, 227 Cal.App.4th at p. 700 [the “extent of a de
facto parent’s right to present evidence depends on the relevant
circumstances”]; In re Patricia L., supra, 9 Cal.App.4th at p. 67
[“If the information presented by the de facto parent is not
helpful, the court need not give it much weight in the
decisionmaking process.”].) Once the juvenile court grants
Heather de facto parent status, the Department will have an
opportunity to show by a preponderance of the evidence that “‘the
dependency is terminated or a changed circumstance no longer
supports the status.’” (In re A.F., at p. 700; see In re Brittany K.
(2005) 127 Cal.App.4th 1497, 1513-1514 [“the responsible social
services agency or department must file a noticed motion, and
‘has the burden of establishing a change of circumstances which
no longer support [de facto parent] status, such as when a
15
psychological bond no longer exists between the adult and the
child,’ or when the de facto parent no longer has reliable or
unique information regarding the child that would be useful to
the juvenile court”].) Until the juvenile court grants such a
motion or otherwise rescinds Heather’s de facto parent status,
she retains a limited interest in “the companionship, care,
custody and management” of Abigail. (In re B.G., supra,
11 Cal.3d at p. 693.) That interest was not extinguished when
the juvenile court placed Abigail with Anahi’s relatives in
Arizona.
DISPOSITION
The juvenile court’s order denying Heather’s request for
de facto parent status is reversed, and the court is directed to
enter a new order granting her request.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
16