In re S.L.CA4/1

Filed 5/22/14 In re S.L.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re S.L. et al., Persons Coming Under the
Juvenile Court Law.
D064635
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J518534B-C)
Plaintiff and Respondent,
v.
RAMON L. et al.,
Defendants and Respondents;
S.L. et al.,
Appellants.
In re S.L. et al., Persons Coming Under the
Juvenile Court Law.
D064942
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J518534B-C)
Plaintiff and Respondent,
v.
RAMON L. et al.,
Defendants and Respondents;
MARTHA L.,
Movant and Appellant,
S.L. et al.,
Appellants.
CONSOLIDATED APPEALS from orders of the Superior Court of San Diego County,
Kenneth J. Medel, Judge. Affirmed.
Julie E. Braden, under appointment by the Court of Appeal, for Appellants, Minors.
Martha L., in pro. per., for Movant and Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel,
and Erica R. Cortez, Deputy County Counsel, for Plaintiff and Respondent.
Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and
Respondent Ramon L.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and
Respondent Miriam H.
S.L., born in 1999, and Jose L., born in 2002 (collectively, the children), are minor children
of Ramon L. and Miriam H. The children appeal orders granting Ramon's petitions under Welfare
and Institutions Code section 388 1 to remove them from the custody of their half sister Martha L.,
and an order denying Martha's application for de facto parent status. Martha also filed a notice of
appeal from the order denying her application for de facto parent status and joins in the children's
opening brief. We granted the children's unopposed motion to consolidate the appeals. The
children contend the juvenile court abused its discretion in granting Ramon's section 388 petitions
and removing them from Martha's custody, and in denying Martha's application for defacto parent
status. We affirm.
1 All subsequent statutory references are to the Welfare and Institutions Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
On October 8, 2012, when Jose and S.L. were living with Ramon, Martha called the police
to report that Jose was left at home alone. When police officers arrived at the home at 5:45 p.m.,
Jose told them he had been home alone since 4:30 p.m. and that he burned his right foot when he
took a cup of hot noodles out of the microwave and spilled some on his foot. He said his older
sister W.L., born in 1997, 2 was supposed to pick him up after school but did not, so he decided to
walk home. The police took Jose to the police station, where he met Martha and S.L. He and S.L.
were later admitted into Polinsky Children's Center (PCC).
When social worker Jorge Nunez from the San Diego County Health and Human Services
Agency (the Agency) interviewed S.L. and Jose at PCC the next day, they said they preferred
living with their adult sister Martha and stayed with her about four nights a week due to Ramon's
work schedule. S.L. said Ramon was not meeting their needs and she had to beg him to buy food
and clothing for them. She also stated that about three years earlier, she saw Ramon put his hands
inside W.L.'s pants and grab her buttocks. She said Ramon had a drinking problem and tried to be
inappropriate with her when he got drunk, and had tried to tickle her around her waist and on her
buttocks over her clothing.
Jose told Nunez that he witnessed Ramon put his hand inside W.L.'s pants to touch her
buttocks about five months earlier. He said he was left home alone once about a year ago but had
not been left alone any other time. He knew Ramon drank alcohol because he saw beer in the
refrigerator, but had never seen him drink or seen him drunk. He said he would like Ramon to
change because Ramon drank beer and did not get along with Martha.
2 W.L. was also a dependent of the court in the proceedings below, but is not a party to this
appeal.
3
Nunez met with W.L. at her high school. She told him that she had not picked Jose up after
school because he told her he was going to Martha's home. She did not think twice about it
because Jose and S.L. had been staying with Martha regularly. She said that the allegations about
the inappropriate touching by Ramon were untrue. She believed Jose and S.L. said it happened
because they thought she was in trouble and needed help. She did not feel that Jose and S.L. were
in any danger at home. She acknowledged that Ramon drank beer but did not believe it limited his
ability to take care of them. W.L. later told a police investigator that two years earlier Ramon had
touched her on her butt, and that it he did it only one time. She said she was sometimes afraid of
Ramon when he got drunk and that she noticed his "temptations" and kept her distance.
The next day the child abuse hotline received a report that the police had taken W.L. to PCC
due to sexual abuse. Nunez met with W.L. at PCC and she told him the police came to her home
the night before to ask her about sexual abuse allegations and took her to PCC after she disclosed
some information. She told Nunez she was not comfortable giving him details. When asked if the
allegations were true, she said "something like that happened" and that it was a onetime incident,
but did not elaborate further. She felt that her father's home would be a good place for her and her
siblings as long as he got help with his drinking. She thought that Martha's home would be a bad
placement for her because she did not get along with Martha.
On October 10, 2012, the Agency filed petitions on behalf of S.L. and Jose under section
300, subdivision (b), alleging they were at substantial risk of harm as a result of the parents' failure
to adequately supervise or protect them. The petitions further alleged that the children were found
alone and were detained by the police, and that efforts to contact the parents had been
unsuccessful. At a detention hearing held on October 11 and 12, 2012, the Agency requested that
the petitions be dismissed and the children's counsel opposed the request. The court set an order to
4
show cause (OSC) hearing on the matter for October 19, 2012. The court ordered Jose detained
with Ramon and S.L. detained with Martha.
On October 16, 2012, the child abuse hotline received a report that S.L. and Ramon had
gotten into an argument about S.L.'s returning home, and that Ramon slapped S.L. and pulled her
hair and arm. Nunez interviewed Jose about the incident. Jose told him he had spent the night at
Martha's house with Ramon's consent, and was asleep there with S.L. Martha was not there when
Ramon came over the next morning because she was out jogging. Ramon entered the house without
knocking and told the children to get ready for church. S.L. refused and began to argue with
Ramon. Ramon told her that the court did not prohibit her from going to church with him and that
he was going to take her home with him as well. He grabbed her by the hair and pulled it
once, and then grabbed her by the arm. S.L. resisted and he slapped her across the face once. Jose
told him to leave S.L. alone. Ramon and Jose then left and went to Ramon's home.
According to S.L., she was asleep at Martha's house when Ramon walked in and told her
she needed to go back home with him. Ramon was upset and yelling throughout the incident. She
refused to go with him so he grabbed her by the hair and dragged her by the arm, and then slapped
her across the face twice. He left with Jose and she went to a neighbor's house. Martha arrived
shortly after Ramon and Jose left. S.L. told Nunez she was afraid of Ramon and that her cheek
was swollen.
On October 18, 2012, a police officer questioned S.L. after receiving a call regarding
possible child abuse. S.L. told the officer she went to see Jose at his elementary school, where
Ramon was picking him up. In Ramon's presence, she told Jose to call her as soon as he got home
and to call the social worker if anything happened. Ramon mocked her by repeating what she said
to Jose and then slapped her on the left side of her face with his right hand.
5
At the OSC hearing on October 19, 2012, the Agency withdrew its request to dismiss the
petitions. The court removed the children from Ramon's custody and ordered them detained. The
Agency placed them with Martha.
On October 31, 2012, the Agency filed amended petitions alleging under section 300,
subdivision (b), that Ramon used alcohol to excess and did not provide food, clothing, and other
necessities for the children because he bought alcohol, and that he had touched W.L. on the
buttocks under her clothing. The petition concerning S.L., also included allegations under section
300, subdivision (a), that Ramon had slapped her on the face on two occasions and had dragged her
by the arm and attempted to drag her by kicking her with his knee; and allegations under
subdivisions (d) and (j) that Ramon had touched W.L. on the buttocks on more than one occasion
over the course of two years and tried to tickle S.L. and move his hands towards her buttocks. At a
detention hearing on November 1, 2012, the court authorized the children's continued detention with
Martha and found a prima facie showing had been made under section 300, subdivisions (a), (b),
and (j) as to S.L., and under subdivision (b) as to Jose. 3 The court set the matter for trial on
behalf of both parents. As to Ramon, the issues for trial were the truth of the allegations in the
petitions and disposition. As to Miriam, the issue for trial was placement with her.
The Agency's jurisdiction/disposition report prepared by social worker Vilma Martinez
included summaries of Martinez's interviews of the children and Ramon. S.L. said that her mother
(Miriam) sold marijuana in Tijuana, Mexico, when S.L. was in her care and that she would not feel
safe with Miriam in Tijuana. She thought it was worse now at Miriam's house because Miriam's
current boyfriend was in a gang and said to be the boss of drug dealers. When asked if she was
3 W.L. opted out of being placed with Martha because of their strenuous relationship. She
was placed with a nonrelative extended family member.
6
aware of the "case about her sister [W.L.]," S.L. said that Ramon was touching W.L. and that W.L.
needed to tell the truth and needed therapy. She said Ramon kept denying everything and needed to
figure out what he was doing wrong.
Jose said that he did not want to return to Ramon's care but would like to visit him. He felt
uncomfortable with Ramon because Ramon left them alone and people would peek through the
windows. He said Ramon got upset with Martha because she would pick them up when Ramon
wanted them to go to his Jehovah's Witnesses church with a neighbor. Jose did not want to go to
Ramon's church because he did not share its beliefs. Jose saw Ramon touch W.L. three or four
times.
Ramon denied slapping S.L. at Martha's house. He said he just attempted to lift her off the
bed and she threw herself on the floor. He put his arms under her underarms to pick her up and her
hair got stuck under a chair or sofa. He did not hit her in the face; he cupped his hands around her
face to get her to look at him. He also denied slapping her at Jose's school. He said S.L. ran in
front of him as Jose was walking toward them and he just attempted to push her back.
Ramon denied that he had ever touched W.L. inappropriately. He said that every day when
W.L. came home from school, he hugged and kissed her to show his parental love as his church
had taught him. Regarding S.L.'s and Jose's allegations of inappropriate touching, he said W.L. had
entered the home through the front door and while he had his arms around her to hug her, Jose and
S.L. came in through the back door and misinterpreted what he was doing. He denied the
children's allegations that he and W.L. were lying down when the alleged touching occurred. He
believed that Martha told the children to make up the allegations. He did not believe he had ever
made W.L. feel uncomfortable or that she had misinterpreted his love towards her.
7
Ramon also denied the children's allegations that he failed to provide for them, stating he
worked as a cook and always made sure there was food in the home already prepared for them. He
believed that the children made those allegations to appease Martha and that Martha directed the
children to make them because she was upset about him not wanting her to have contact with the
children. He said he drinks only once in a while when his oldest son visits and brings a couple of
beers. He used to drink and smoke cigarettes frequently but quit doing so about eight years ago
with the help of his church
Ramon wanted the children placed with members of his church or PCC instead of Martha if
they could not be placed with him. He stated Martha "puts things" in the children's heads and did
not want the children to go to his church; she wanted them to follow her faith or lack thereof. He
thought Martha just wanted the children so she could get financial aid from the Agency and prove
her independence. Jose and S.L. said they wanted to stay with Martha because she was
responsible and bought them clothes and took them out. Jose added that Martha did not leave
them home alone.
Social worker Martinez's assessment was that Ramon and Martha's relationship affected the
children, and that all parties involved needed to learn to work together for the children's well-
being. Both Ramon and Martha were informed that if the children's placement conflicted with the
goal of reunifying them with Ramon, they could be moved.
In an addendum report prepared for a pretrial settlement conference on January 3, 2013, the
Agency recommended that the children not be returned to their parents' care. Miriam had
disclosed a criminal record with "some type of drug history/involvement" and had not parented the
children for years. The children did not feel safe in her care and refused visitation with her, and
they did not want to go to school in Mexico. Martinez had been unable to interview Miriam
8
because she had not made herself available despite Martinez's numerous efforts to contact Miriam.
Ramon was participating in all of the services in his case plan, but the children continued to refuse
visitation with him. They said they wanted him to continue in his services so they could trust him
and feel safe with him. Jose and W.L. wanted to make progress in their own therapy to deal with
conflicting feelings about their parents before beginning visitation.
At the pretrial hearing on January 3, 2013, the court sustained the children's petitions and
made true findings on the counts under section 300, subdivisions (a) and (b) in S.L.'s petition and
subdivision (b) in Jose's petition. The court dismissed the count under subdivision (j) in S.L.'s
petition. The court removed the children from parental custody, ordered supervised visitation with
the parents, and continued their detention in an approved home of a relative pending placement.
The Agency continued their placement with Martha.
In May 2013, Ramon requested a special hearing "[t]o bring to the court's attention
[Martha's] role in obstacles to visitation and request changes in visitation plan: additional visits
and therapeutic setting should be offered to the family." The Agency prepared an addendum report
for the special hearing, which was set for May 8, 2013. The report noted that S.L. and Jose had
refused visits since they were removed from Ramon's care whereas W.L., who was placed in the
home of a nonrelative, had visited the parents consistently.
The Agency reported that Martha had not facilitated in helping visitation with the children
and that the Agency believed she may be "sabotaging reunification services." Although Martha
lately had been more receptive to aiding the reunification process, the Agency thought it was likely
she did not encourage the children to attend visits even though she said otherwise. She had
recently said her main concern was that the children would return to Ramon's care and she would
not be able to see them again. The Agency believed removing the children from Martha's care
9
would cause them trauma and was "conflicted in assessing whether removal . . . would remove the
barrier of the children visiting with their parents."
Martha complained that social worker Martinez had been rude to her and the children and
was "useless," and that the children refused to speak to Martinez during monthly in-person visits.
The Agency's assessment was that when Martha had issues with a person, the children followed
her lead. Therefore, "in a last attempt to not remove the children from [Martha's] care, the Agency
assigned the family a new [social worker (Hazael Lopez) on April 17, 2013]."
Martinez had arranged and asked the children to attend numerous visits with their parents
and with W.L., and had attempted to work with Martha in enrolling the children in therapy and
making sure they had physical and dental examinations. Martha said it was too much and shortly
thereafter, the children did too. W.L. attended all visits arranged for her with both her siblings and
her parents. She became upset and cried when Martha did not bring the children to the visits with
her. W.L. believed the children cancelled the visits because she and Martha did not get along. She
said Martha previously tried to convince her that her parents were not good people. She and Martha
stopped getting along when she stopped listening to Martha. She believed Martha was influencing
the children to refuse visitation with her and the parents.
The Agency's conclusion that Martha had not helped facilitate visitation and may be
sabotaging reunification services was based, among other things, on a number of reported
incidents where Martha failed to answer or return calls from Martinez to set up visits, which
required Martinez to seek the help of the children's counsel; the children's continued refusal to visit
Ramon, even when Martha brought them to the visitation center; Martha's unwillingness to
transport the children to sibling visits; the children's stating they did not want to be pulled out of
school 10 minutes early to be transported to visits on Friday when the visitation center could not
10
provide a later pick up time; and the visitation center's decision to cancel sibling visits because it
could not accommodate Martha's schedule and she refused to transport the children.
Because of the continued difficulties in working with Martha and the children's failure to
attend scheduled visits with W.L. and Ramon, the Agency scheduled a team decision meeting
(TDM) to discuss the importance of Martha's aiding in the reunification process and maintaining
communication with the social worker. Although Martha twice confirmed in a telephone
conversation with social worker Lopez that she would attend the scheduled TDM, she did not
show up at the meeting. When Lopez called Martha, she said she missed the meeting because she
had two other scheduled appointments that she "forgot" about when she confirmed she would
attend. Lopez rescheduled the meeting for the next day and Martha confirmed she would attend at
the scheduled time or would call Lopez if she could not attend. Lopez told her that her attendance
was crucial. However, Martha arrived at the meeting about 30 minutes late and said she could
only stay about another 30 minutes because she had other engagements.
At the TDM it was explained to Martha that it was important she transport the children to
each scheduled visit; that the court ordered reunification services for the parents and it was the
Agency's duty to provide those services; that visitation was a crucial part of the services; that the
children would not be forced to visit Ramon, but they needed to be brought to the scheduled visits
and asked if they wanted to visit; and that if she did not comply with the Agency, the Agency
would have no choice but to inform the court. Martha was also told that the Agency did not want
to remove the children from her home and the purpose of the TDM was to attempt to prevent their
removal, but there may be no other option if she continued to not work with the Agency.
Following the TDM, Martha cancelled the children's next scheduled visit with W.L., stating
the children had to attend ceremonies at school. However, the children's schools informed the
11
Agency that the ceremonies in question took place during school hours and later in the evening,
which would have allowed time for the visit. W.L. was upset by her siblings' failure to visit her
and believed it was because of Martha. Martha also failed to bring the children to a scheduled visit
with Miriam. When Miriam later telephoned Martha to talk to the children, Martha discussed the
sexual abuse allegations against Ramon with her in the children's presence.
Ramon told Lopez that he wanted the children removed from Martha because he had not
seen any progress with them, whereas he had seen significant improvement with W.L., who had
been visiting him. He felt that as long as the children were with Martha, he would never see them.
He told Lopez he had been trying to contact the children by telephone, but Martha did not pick up
his calls. The Agency noted that at the TDM, Martha had agreed to accept phone calls from
Ramon and said she had no problem with him calling to speak to the children.
The children arrived at the next scheduled visit with Ramon, but refused to visit with him.
When asked why they did not want to see their father, neither S.L. nor Jose gave a reason. S.L.
began to cry and said she was not ready to forgive Ramon. The children told Lopez that Ramon
had not called or attempted to see them in almost five months. When Lopez told the children
Ramon had been calling and coming to the visitation center every week to see them, they said they
still did not feel ready to see him, but would be willing to take a letter from him. They said they
did not think he had changed. Lopez responded that although he would not force them to visit
Ramon, the only way they could find out if Ramon had changed was to talk with or visit him.
Ramon wrote letters to the children and they wrote back, but continued to say they were not
ready to see him in person. Martha told Lopez that the children did not want to visit Ramon
because they were emotionally hurt, which she knew because Ramon had emotionally abused her
as a child. Lopez told Martha that Ramon was participating in services, including parenting
12
classes to learn about his past mistakes and to parent the children in the future. Martha said Ramon
was a "fake" and would never change and that he used to drink, do drugs, and beat the children.
She said she would not allow the children to visit Ramon until she saw a "genuine" change in him.
Lopez reminded Martha that she was not the person who determines who can visit the children and
that there was a court order allowing Ramon to have supervised visitation with them. Lopez told
Martha he did not believe it was beneficial for the children's well-being that they had not seen
Ramon in five months. Martha responded that it was the children who were refusing to see Ramon
and she was protecting them.
W.L. told Lopez that Jose and S.L. would never see her or her parents as long as they were
living with Martha, and that Martha was abusive and manipulative and always talked bad about
Ramon and Miriam. She said Ramon used to be very strict and had anger issues, but she had seen a
change in him since she had been visiting him. When asked what change, W.L. cried and said, "He
is more sensitive now and he tells me that he loves me and cares for me. He never said that to me
before."
On May 8, 2013, the court continued the special hearing to June 5, 2013, and ordered: "The
caregivers are admonished by the court to work with the social worker, the minor[s] and minor[s']
parents regarding visitation, and [the court] requests that all work together to meet the goals of the
court."
In an addendum report for the June 5 hearing, the Agency reported there had been "little to
no change" regarding visits between the children and Ramon or Martha's cooperation with
visitation since the May 8 hearing. Ramon had written the children two letters expressing his
feelings toward them and the children had written back. However, their letters contained
statements "that appeared to be of an adult matter." The children mentioned property that Ramon
13
owned in Mexico and questioned why he was not selling the property and why he was not giving
Martha money. Although the children were open to receiving phone calls from Ramon and he had
been calling every Thursday and Friday, social worker Lopez observed that the children lacked
interest in Ramon's letters and the supervised telephone calls had lasted only a couple of minutes.
Lopez supervised a telephone call that was put on speakerphone. When Ramon greeted
S.L., she immediately said, "I don't want to talk to you because you misbehaved at court on
Wednesday." S.L. then passed the phone to Jose. After Ramon and Jose exchanged greetings,
Ramon asked Jose what he was doing. Jose said, "I don't want to talk to you[;] I'm doing my
homework." Ramon told Lopez it was the same result every time he called the children. He said,
"They are always rude and direct . . . [b]efore they lived with Martha they never acted this way."
Lopez made several calls to Martha to attempt to schedule another TDM, but Martha said
she could not attend because she was busy with other appointments. She was inflexible and her
tone was discourteous. Martha finally agreed to a meeting date after Lopez told her she was being
inflexible and reminded her that the court made it clear she needed to work with the parents and the
social worker. However, it took several weeks to organize the TDM, mostly due to Martha's
inflexibility and unwillingness to cooperate.
In a second addendum report for the June 5 hearing, the Agency reported that one day
before the TDM, social worker Lopez reminded Martha of the meeting and Martha confirmed that
she would attend. On the day of the meeting, Lopez again contacted Martha to remind her of the
meeting and Martha said she would be there. However, she arrived about 30 minutes late for the
meeting. Lopez informed Martha that the meeting had been cancelled due to her tardiness.
Martha did not ask to be heard or make an excuse for her tardiness; she simply stood up and said,
"Ok, I'm leaving now."
14
On May 10, 2013, Martha brought the children to a scheduled visit with Ramon and W.L.
35 minutes late. S.L. told Lopez to "make it quick because we are going out with Martha." When
Lopez asked her why they made plans to go out on a day and time reserved for visitation, S.L. did
not answer. Lopez then asked S.L. if she wanted to visit Ramon. She said she wanted to be
present at the next court hearing so she could tell the judge that she did not want anything to do
with her father.
Lopez asked Martha why she had planned an outing with the children on the day and time
reserved for visitation with W.L. and Ramon. Martha said she scheduled the outing because the
children told her they would not be meeting with Ramon. Lopez told Martha she should not make
plans during the time of visitation, noting that S.L. asked to accelerate the visitation because she
wanted to go on her outing. Lopez informed Martha that by planning the outing, she was
impeding Ramon's reunification services.
The Agency reported that it was seriously contemplating removing the children from
Martha's home. W.L. had benefitted from living in a neutral setting and was consistently visiting
Ramon, whereas S.L. and Jose had not been willing to meet with their parents since being removed
from Ramon in December 2012. The Agency's assessment was that Martha had made up her mind
Ramon was not a fit father and would never change, and she negatively influenced the children.
The children were well aware how Martha felt about Ramon and, like Martha, they said Ramon
would never change. The Agency believed that even if the children wanted to visit with Ramon, as
long as they were placed with Martha they would never feel safe to admit it for fear of her
reaction. The Agency concluded that the placement with Martha was not a neutral setting where
the children could express anything positive about visitation or reunification with Ramon.
15
At the special hearing on June 5, 2013, Ramon's counsel informed the court that she would
be filing section 388 petitions on behalf of Ramon. The court stated it would hear the petitions on
the same day as the six-month review hearing. The court's minute order from the June 5 special
hearing stated: "The court admonishes all parties regarding the importance of visitation and the
court's ultimate goal of reunifying parents with their children; as stated on the record. The court
orders the visitation to remain as it was previously set and stresses to all parties that the court will
look unfavorably upon anyone that makes any effort to block or subvert the court's order regarding
visitation."
A report prepared for the six-month review hearing, stated: "At the time of this writing, the
Agency does not recommend that the children be returned home with their parents, however, it is
[social worker] Lopez's professional opinion and the Agency's assessment that [S.L.] and Jose
would benefit from a change of placement and should be placed in a neutral setting in which the
children's parents are not poorly spoken of and where encouragement regarding reunification
services is provided to the children. It is the Agency's assessment that the children are being placed
in a complicated situation as they seem to find it difficult to be loyal to either the father or [Martha]
as the children appear unsettled and confused. It is the Agency's assessment that as long as the
children remain living and placed with [Martha], reunification will continue to be interfered with."
On June 25, 2013, Ramon filed section 388 petitions requesting that the children be
removed from Martha's care. In an addendum report prepared for a pretrial settlement conference
set for July 17, 2013, the Agency recommended that S.L. and Jose be placed in a licensed foster
home and that the Agency have discretion to place them in the approved home of a nonrelative
extended family member. The Agency had cleared and approved the home of Ramon's friend for
16
the children's placement. The children said they would not be comfortable being placed with a
friend of their father and would rather be placed in a foster home.
At the hearing on July 17, 2013, the court found Ramon had made a prima facie showing on
his section 388 petitions. The court set an evidentiary hearing on the petitions to be held on the
day of the contested six-month review hearing.
The contested six-month review hearing and section 388 hearing took place over several
days in August and September 2013. The court considered all of the Agency's reports and heard
testimony from the children's therapists, the children, Martha, and social worker Lopez. On
September 16, the final day of the hearing, the court granted Ramon's section 388 petitions and
removed the children from their placement with Martha.
Martha submitted an application for de facto parent status at the September 16 hearing. The
court set a hearing on Martha's application and returned the application to her so she could
properly serve it on all parties. On November 7, 2013, the court held a hearing on Martha's
application and heard testimony from Martha. After taking the matter under submission, the court
denied the application as to both children.
DISCUSSION
I. Ramon's Section 388 Petitions
The children contend the court abused its discretion in granting Ramon's section 388
petitions and removing them from Martha's care.
"Section 388 allows a parent or other person with an interest in a dependent child to petition
the juvenile court to change, modify, or set aside any previous order. (§ 388, subd. (a).) 'Section
388 provides the "escape mechanism" that . . . must be built into the process to allow the court to
consider new information.' [Citations.] The petitioner has the burden of showing by a
17
preponderance of the evidence (1) that there is new evidence or a change of circumstances and (2)
that the proposed modification would be in the best interests of the child. [Citations.] That is, '[i]t
is not enough for [the petitioner] to show just a genuine change of circumstances under the statute.
The [petitioner] must show that the undoing of the prior order would be in the best interests of the
child.' " (In re Mickel O. (2011) 197 Cal. App. 4th 586, 615, italics omitted.) "In considering
whether the petitioner has made the requisite showing, the juvenile court may consider the entire
factual and procedural history of the case." (Id. at p. 616.) We review a juvenile court's order
granting or denying a section 388 petition for abuse of discretion. (In re B.D. (2008) 159
Cal. App. 4th 1218, 1228.) We will not disturb the juvenile court's decision "unless that court has
exceeded the limits of judicial discretion by making an arbitrary, capricious, or patently absurd
determination." (In re E.S. (2011) 196 Cal. App. 4th 1329, 1335.)
The critical issue the court had to decide in ruling on Ramon's section 388 petitions was
whether the children's placement with Martha was undermining the reunification process mandated
by California's juvenile dependency scheme. "It is difficult, if not impossible, to exaggerate the
importance of reunification in the dependency system. With but few exceptions, whenever a
minor is removed from parental custody, the juvenile court is required to provide services to the
parent for the purpose of facilitating reunification of the family. [Citation.] Each reunification
plan must be appropriate to the parent's circumstances. [Citation.] The plan should be specific and
internally consistent, with the overall goal of resumption of a family relationship. [Citations.] The
agency must make reasonable efforts to provide suitable services, 'in spite of the difficulties of
doing so or the prospects of success.' [Citation.]
"Among its components, the reunification plan must include visitation. [Citation.] That
visitation must be as frequent as possible, consistent with the well-being of the minor. [Citation.]
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Absent a showing of detriment caused by visitation, ordinarily it is improper to suspend or halt
visits even after the end of the reunification period. [Citations.] Visitation may be seen as an
element critical to promotion of the parents' interest in the care and management of their children,
even if actual physical custody is not the outcome." (In re Luke L. (1996) 44 Cal. App. 4th 670,
678-679.)
We conclude the court acted well within its discretion in granting Ramon's section 388
petitions on the ground Martha was frustrating the statutory goal of family reunification by
influencing the children to refuse visitation. The court reasonably found by clear and convincing
evidence that Ramon met his burden of showing changed circumstances. The court cited evidence
that Ramon had not seen the children in visitation during the entire eight-month period they had
been in Martha's care; the children had persistently refused to see Ramon and had refused to get in
the car when the social worker came to transport them to visitation; and they had consistently
refused to engage in any meaningful conversation with him when he called them by phone. The
court found there had been "an alarming number of irregularities involving Martha . . . [pertaining]
to visitation[,]" including the fact that although she was the caretaker responsible for promoting
reunification, she had "not had a true conversation with her father since the case began."
The court noted that Martha's lack of cooperation with the first social worker assigned to
the case caused the Agency to assign a new social worker to the case, but the second social worker
had "not been able to work with her on important issues and problems such as the issue and
problem of visitation." The court found that Martha had "persistently expressed her negative and
hostile feelings to the social workers involved in the case." The court also found there had been
significant problems with the children's visitation with W.L. that were "directly assignable
to . . . Martha[,]" and that as W.L. was making "positive strides toward reunifying with the
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father, . . . Martha . . . continue[d] to be unable and unwilling to comply with the full scope of the
visitation order."
The court found that Martha influenced the children's thoughts about visitation with Ramon.
The court viewed the children's testimony about visitation as reflecting "an adult strategy of
permanently blocking the visitation. It went like this: 'We won't see the father at all. When he
calls, we'll just hang up. When we're asked why we hung up, we'll just say we didn't like what he
had to say,' thus they're effectively eliminating any avenues to visitation. [¶] But then to appease
the court, they testify, 'But you know what? Telephone calls are an important first step toward
actually seeing our father,' meaning 'we won't have any good telephone calls' but that's somehow an
important step toward seeing their father."
The court noted that when Martha testified, she admitted that Ramon's calls to the children
were a "disaster"; however, she then "used the exact same language that the kids used, 'But the
telephone calls were an important first step leading to face-to-face visitation.' " The court
concluded that Martha "has either directly or indirectly influenced the refusal of [the children] to
visit their father. She has not promoted or assisted this visitation. Her involvement as caretaker
for [the children] represents a significant impediment towards successful reunification between
these children and their father."
Regarding the children's best interests, the court acknowledged the positive aspects of
Martha's care of the children, and that the children would suffer "some degree of trauma" if
removed from Martha. However, the court viewed Martha's negative attitude toward the children's
visitation with Ramon as being "totally contrary to the basic assumptions underlying the
dependency system. It does not promote visitation; it is not consistent with reunification. If
visitation and reunification are in the best interest of the children, then this placement with
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Martha . . . is not." Thus, the court found that the children's placement with Martha did not
promote the overall goal of visitation as an integral component of the reunification process. The
court concluded: "[A]t this point in time the placement with Martha . . . is inconsistent with even
the short-term analysis of best interest, and it's much more inconsistent with the long-term analysis
of best interest. [¶] Consequently, the court concludes by clear and convincing evidence that it is
in the best interest of [the children] to be removed from the care of Martha . . . ."
The court's finding that removal of the children from Martha's care was in their best interests
because Martha was subverting the statutorily-mandated reunification process was amply
supported by the Agency's reports and social worker Lopez's testimony regarding Martha's negative
attitude toward Ramon and her lack of cooperation with the Agency, particularly with respect to
visitation. The children's and Martha's testimony further supported the court's finding that Martha
had negatively influenced the children's attitude toward visitation. The court's determination that
circumstances had changed and removal of the children from Martha's care was in the children's
best interests was not an arbitrary, capricious, or patently absurd determination that exceeded the
limits of judicial discretion. (In re E.S., supra, 196 Cal.App.4th at p. 1335.)
II. Martha's Application for De Facto Parent Status
The children contend the court abused its discretion in denying Martha's application for de
facto parent status. We find no abuse of discretion.
" ' "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.' [Citation.] 'On a
sufficient showing the court may recognize the child's present or previous custodians as de facto
parents and grant standing to participate as parties in disposition hearings and any hearing
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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.' (Cal. Rules of Court, rule 5.534(e).)
"A determination of whether or not a person qualifies as a de facto parent is a fact-based
assessment, and '[t]he decision to grant de facto parent status depends on an assessment of the
particular individual and the facts of the case.' [Citation.] Factors courts generally consider in
making this assessment include (1) whether the minor is psychologically bonded to the adult; (2)
whether the adult has assumed the role of a parent on a day-to-day basis for a substantial period of
time; (3) whether the adult possesses information about the minor unique from other participants in
the process; (4) whether the adult has regularly attended juvenile court hearings; and (5) whether
any proceeding may result in an order permanently foreclosing any future contact between the
adult and the child." (In re R.J. (2008) 164 Cal. App. 4th 219, 223.)
"The denial of a petition for de facto parent status is reviewed for abuse of discretion.
[Citation.] '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 Jacob E. (2004) 121
Cal. App. 4th 909, 919.)
In its oral ruling denying Martha's application, the court incorporated by reference its oral
ruling granting Ramon's section 388 petitions. The court explained that in light of its decision that
the children's placement with Martha was detrimental to them and not in their best interests, it
would be inconsistent to grant Martha de facto parent status. Specifically, the court stated that
granting Martha de facto parent status made no "logical sense" or "legal sense" in light of its ruling
and the facts it had found regarding "impediments to appropriate visitation and appropriate attitude
of the [children] toward their father as influenced by [Martha] either directly or indirectly."
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The court analogized this case to In re Michael R. (1998) 67 Cal. App. 4th 150 (Michael R.),
in which the appellate court upheld the juvenile court's denial of de facto parent status to the
grandmother of the dependent children. The grandmother had engaged in conduct that the court
viewed as being " 'fundamentally at odds with the role of a parent,' " including kidnapping the
children and keeping them in hiding from the social services agency and allowing an abusing
parent access to them. (Id. at p. 158.) The appellate court observed that " '[w]hen a nonparent
caretaker commits "a substantial harm" to the child, a harm that is fundamentally at odds with the
role of a parent, that person's protectible interest in dispositional decisions is extinguished,
including whatever right he might otherwise have had to de facto parent status.' " (Ibid.)
Here, the court acknowledged that Michael R. was "not exactly spot-on in terms of our
case," but the court viewed it as being "parallel," in that the grandmother in Michael R. met many
of the criteria for de facto parent status but was denied that status because she had behaved in a
way that was "contradictory to the parental role." Applying that reasoning, the court denied
Martha de facto parent status because it viewed her conduct that negatively influenced the
children's attitude toward Ramon and visitation as inconsistent with a parental role.
We find no fault with the court's reasoning. As the California Supreme Court stated, "the
key to the privileged status of de facto parenthood is adherence to 'the role of parent,' both physical
and psychological." (In re Kieshia E. (1993) 6 Cal. 4th 68, 78.) Although to a great extent Martha
had assumed a parental role with the children, the court essentially found she had acted contrary to
that role by persistently engaging in conduct that was detrimental to the children because it
undermined their relationship with Ramon and the statutory goal of reunification.
There was substantial evidence to support that finding. Based on Martha's history of
uncooperativeness regarding the children's visitation with Ramon, the Agency reasonably
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concluded that Martha had made up her mind Ramon was not a fit father and would never change,
and that she influenced the children to adopt the same view. The children's and Martha's testimony
at the hearing on Ramon's section 388 petitions further supported the finding that Martha had
negatively influenced the children. Although their testimony showed that the Ramon's telephone
calls to the children had not gone well because the children resisted Ramon's efforts to engage
them in conversation, all three essentially testified that the calls had to go well before the children
would be willing to visit Ramon in person. Based on the totality of the evidence, the court
reasonably found that Martha's involvement as the children's caretaker represented "a significant
impediment towards successful reunification between these children and their father," and that by
influencing the children to refuse visitation, Martha had acted contrary to the role of a parent.
Accordingly, the court did not abuse its discretion in denying Martha's application for de facto
parent status.
DISPOSITION
The orders granting Ramon's section 388 petitions are affirmed. The order denying
Martha's application for de facto parent status is affirmed.
O'ROURKE, J.
I CONCUR:
BENKE, Acting P. J.
I CONCUR IN THE RESULT:
HUFFMAN, J.
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