In re Athena H.
Filed 9/7/07 In re Athena H. CA1/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re ATHENA H., et al., Persons Coming Under the Juvenile Court Law. | |
LAKE COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. CYNTHIA H., Defendant and Appellant. | A116610 (Lake County Super. Ct. No. JV320013) |
Cynthia H., the maternal grandmother of Athena H. and Israel P., appeals from an order denying the second of her two requests for de facto parent status of her grandchildren. We reversed the juvenile courts order denying her first request in In re Athena H. (June 27, 2007, A114477 [nonpub. opn.]) (Athena II). For the following reasons, we reverse the second order as well.
BACKGROUND
The relevant history is discussed at length in our two previous opinions in this matter, which we incorporate by reference. (In re Athena H. (Jan. 22, 2007, A109735, A112506, A111434, A112930, A115422 [nonpub. opn.] review den. May 16, 2007, S150622 (Athena I).)
On December 20, 2006, six months after the juvenile court denied Cynthias first request for de facto parent status and while her appeal from that order was pending, Cynthia filed a second de facto parent petition as to each child. She said she had new information about the children that she obtained from visiting them. She also discussed information provided by childrens appellate counsel that, in her view, showed that neither the Lake County Department of Social Services (the Department) nor the childrens trial counsel was providing the juvenile court with full and accurate information about the childrens welfare and best interests. Cynthia also disputed various statements the Department had made about her and provided updated information about the status of her relationships with her former boyfriend and her daughter which figured significantly in the dependency proceedings. The juvenile court summarily denied these petitions the day they were filed, with the written notation: Note: Previously Rule[d] Upon. . . .
Cynthia timely appealed. The Department declined to file a respondents brief, but in an informal letter to this court requested, without providing either authority or analysis, that we dismiss this appeal as moot in light of our decision in Athena II. Both Cynthia and the minors opposed that request. The remittitur issued in Athena II on August 28, 2007.
DISCUSSION
Because the decision on an application for de facto parent status is dependent upon factual determinations, including resolution of disputed facts and credibility, we usually review the juvenile courts ruling under a deferential abuse of discretion standard. (In re Michael R. (1998) 67 Cal.App.4th 150, 156.) This, however, is not a usual case. Instead of exercising its discretion on the basis of the facts before it, the court summarily denied the petition on the ground that it had been previously ruled upon. It was error to do so. Although Cynthias second petition for de facto parent status incorporated some of the information she had provided as grounds in support of her first petition for de facto status, it provided more current information as well. The trial court was obligated to exercise its discretion and consider this information; it did not do so. Its failure is a reversible abuse of discretion. (Richards, Watson & Gershon v. King (1995) 39 Cal.App.4th 1176, 1180.)
The Department does not oppose Cynthias appeal on the merits, but urges us to dismiss for mootness in light of our reversal of the prior order denying de facto parent status. We decline to do so. This was a new application for de facto parent status, not a mere replication of the former petition. In light of the confusion and error that has marked this case from nearly the start, we think it best to clearly address the courts second order denying Cynthia de facto parent status. The order, therefore, is reversed.
DISPOSITION
The order is reversed.
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Siggins, J.
We concur:
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McGuiness, P.J.
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Pollak, J.
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