In re Jessica W.

Filed 10/30/06 In re Jessica W. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Jeremy W. and his wife appeal the juvenile court order denying them de facto parent status in the dependency proceedings of their two nieces and nephew. The trial court denied the request because the aunt and uncle had not assumed the role of the children’s parents on a day-to-day basis for a substantial period of time. We affirm.

Background

Appellant Jeremy W. is the maternal uncle of Cassandra, born in January 1993; Andrew, born in December 1994; and Jessica, born in January 1999. Heather W. (Mother) suffers from bipolar disorder and has a long history of referrals to child protective services. She received voluntary family maintenance services during most of 1999. Services were terminated at her request in December 1999. Mother had four referrals to child protective services in 2001. She received voluntary family maintenance services from October 2001 to June 2002, when she refused further services. She had another referral in June 2003 and four referrals in early 2004.

Finally, in April 2004, all three of Mother’s children were detained. The Mendocino County Department of Social Services (Department) alleged that in January 2004 Mother provided alcohol to two 15- and 16-year-old boys, had sex with one of the boys, and left 11-year-old Cassandra with the other one, who molested her. Cassandra overdosed on pills and made a suicide threat, but Mother ignored advice to take her to counseling. The court found all three minors were dependent children and removed them from Mother’s custody.

Appellants Jeremy W. and his wife seek de facto parent status based on their contact with the minors, which is set out in detail. From September to December 2000, Jeremy and his wife (Appellants) lived with Mother and her children in Fort Bragg and spent considerable time with the minors. Jeremy’s wife cared for them after school and brought order to their lives by establishing an organized schedule for chores, homework, playtime, dinner and bedtime. Jessica became particularly close to Appellants’ own daughter, and Jeremy started to bond with Andrew.

From December 2000 to July 2003, Appellants lived in a separate home north of Fort Bragg. They continued to care for the children while Mother worked. They also taught the children at weekly Sabbath school and spent considerable time with them on weekends, during informal visits and at family gatherings. In August 2003, Appellants moved to Miranda, California, about 80 miles from Fort Bragg,[1] and saw the minors about ten times in the ensuing ten months. While Appellants were still living in Miranda, the Department identified them as the best long-term placement option for Jessica because of her familiarity with Appellants and close bond with their daughter.

When the Department detained the children in April 2004, Appellants offered to provide a home for the minors. The Department rejected immediate placement with Appellants because they were planning to move to Texas, a distance that would make Mother’s reunification efforts difficult. Appellants moved to Texas in June 2004. As of November 2004, the Department was considering Appellants as well as the maternal grandparents and Mother’s other siblings as possible permanent placements for Cassandra and Jessica. The Department initially began the assessment of the grandparents only.

In February 2005, the Department filed a new petition for Andrew, alleging that his father and stepmother could not continue to care for him because he was exhibiting sexualized behavior around their five-year-old daughter. The court sustained the petition, removed Andrew from parental custody and placed him in a foster home. Mother identified Appellants and other relatives as possible placements for Andrew. Appellants confirmed that they would provide a home for the minor. The Department concluded that Andrew needed specialized care and the relatives would only be assessed for placement when Andrew could be moved to a lower level of care. In fact, although the Department referred Andrew for a specialized placement, the agency charged with placing him determined he did not need specialized services and placed him on a working ranch, where his behavior improved significantly.

By April 2005, the Department’s efforts to find permanent placements focused on Appellants and a maternal aunt who also lived in Texas. In April, Appellants asked for contact with the minors. Previously, they were not aware they could have consistent contact with the children or any formal involvement in the dependency proceedings. They had called the Department several times seeking contact with the minors but they did not receive return calls for several months. In May 2005, a social worker gave them Andrew’s mailing address; as of July, they had not written to him. The Department also arranged for Appellants to see the girls at a church camp and arranged for Appellant Jeremy to visit Andrew. Appellant traveled to California for the visit with Andrew but it was cancelled because Andrew’s foster family extended their vacation. In September, a new social worker provided addresses for the minors and Appellants sent letters and presents in October and called the minors in the fall. Appellants visited all of the minors during the Thanksgiving holiday. In preparation for a visit with Andrew, the social worker asked Appellants not to discuss the court proceeding or the children’s future placement. Notwithstanding that caution, Jeremy had Andrew sign a document saying he wanted to live with Appellants. The social worker then recommended that any further contact between Appellants and Andrew be supervised.

The court terminated reunification services for Mother as to Cassandra and Jessica in October 2005 and as to Andrew in January 2006. For Cassandra, the court selected a permanent plan of placement in a group home. For Jessica and Andrew, the court scheduled Welfare and Institutions Code section 366.26 hearings February and May 2006. In the fall of 2005, the Department moved Jessica to the foster home where Andrew was living and asked Texas authorities to assess Appellants for a possible permanent placement for Jessica. By January 2006, Texas authorities had approved Appellants’ home for Jessica and were willing to approve it for Andrew as well. Cassandra did not want to be adopted.

On January 4, 2006, Appellants filed a request to be recognized as de facto parents in all three minors’ cases. They recited their history of caring for the children, their relationships with the children, and their offers to provide a home for the children. The Department opposed the request because it was made late in the proceedings, because Appellants had not intervened earlier to protect the minors from neglect and abuse by Mother, and because they had not acted as parents for the children. The court denied Appellants de facto parent status, pointing out that as relatives, they had the right to attend hearings and address the court.

Discussion

A de facto parent is “a person who has been found by the court to have assumed, on a day-to-day basis, the role of parent, fulfilling both the child’s physical and psychological needs for care and affection, and who has assumed that role for a substantial period.” (Cal. Rules of Court, rule 1401(a)(8).)[2] “Upon a sufficient showing the court may recognize the child’s present or previous custodians as de facto parents. . . .” (Rule 1412(e).) If the juvenile court grants an applicant de facto parent status, the applicant obtains the right to attend hearings; to be represented by retained counsel or, at the discretion of the court, appointed counsel; and to present evidence. (Rule 1412(e).) In contrast, relatives may only attend hearings and address the court upon a “sufficient showing [to] the court.” (Rule 1412(f).) “From these rules we discern the importance of de facto parent status: the status provides a nonbiological parent who has achieved a close and continuing relationship with a child the right to appear as a party . . . . Absent such status, very important persons in the minor’s life would have no vehicle for ‘assert[ing] and protect[ing] their own interest in the companionship, care, custody and management of the child’ and the court would be deprived of critical information relating to the child’s best interests.” (In re Patricia L. (1992) 9 Cal.App.4th 61, 66, internal citations omitted.)

The juvenile court’s determination that a person is a de facto parent depends strongly on the particular individual and the unique circumstances of the case. “[T]he courts have identified several factors relevant to the decision. Those considerations include whether (1) the child is ‘psychologically bonded’ to the adult; (2) the adult has assumed the role of a parent on a day-to day basis for a substantial period of time; (3) the adult possesses information about the child unique from the other participants in the process; (4) the adult has regularly attended juvenile court hearings; and (5) a future proceeding may result in an order permanently foreclosing any future contact with the adult. [Citations.] If some or all of these factors apply, it is immaterial whether the adult was the ‘child’s current or immediately succeeding custodian.’ [Citations.]” (In re Patricia L., supra, 9 Cal.App.4th at pp. 66-67.)

A person seeking recognition as a de facto parent has the burden of establishing by a preponderance of the evidence that he or she falls within the definition. (In re Patricia L., supra, 9 Cal.App.4th at p. 67.) Because a court benefits from having all relevant information, a court should liberally grant de facto parent status. (Ibid.) The denial of a request for de facto parent status is reviewed for abuse of discretion. (In re Michael R. (1998) 67 Cal.App.4th 150, 156.)

The court did not abuse its discretion in denying Appellants de facto parent status. Substantial evidence in the record supports the court’s finding that Appellants did not qualify. We consider the evidence within the framework of the factors discussed in In re Patricia L., supra, 9 Cal.App.4th at pages 66-67.

First, there was no evidence of a psychological bond between Appellants and the minors comparable to a parent-child relationship. Appellants recount the amount of time they spent with the minors over the years and state that they developed a “strong relationship” with them. A strong relationship does not mean that Appellants became parent figures. Illustrative is the fact that when Appellants moved to Miranda in 2003 and Texas in 2004 the minors did not suffer emotionally from the separation as one would expect if they had been separated from parent figures. (Cf. Guardianship of Phillip B. (1983) 139 Cal.App.3d 407, 418.) When asked for their preferences during the dependency proceedings, none of the minors asked to live with Appellants. Cassandra said she wanted to live with Mother or in a foster home; Andrew said he wanted to live with his father, his younger sister, or his aunt Erica; and Jessica said she wanted to live with Mother or Andrew. At the hearing on de facto parent status, minors’ counsel said Jessica had clearly stated she did not want to live with or even visit Appellants, and Andrew never asked to live with Appellants. (Cf. ibid.) We accept Appellants’ assertions that they developed a strong relationship with the minors; that Appellants’ presence in Mother’s home in 2000 was “very beneficial” for the minors; and that Jeremy’s wife was a “true teacher, companion, and authority figure” to the minors while she served as their Sabbath school teacher. The question before the juvenile court, however, was whether Appellants assumed the psychological role of the minors’ parents; there was substantial evidence to support the court’s finding that they did not.

Second, there was insufficient evidence that Appellants ever assumed the practical role of the minors’ parents on a daily basis or that they did so for a substantial period of time. Even assuming Appellants took on the role of parents when they lived with the minors in 2000, the court could reasonably find that this four-month period was not a substantial amount of time in the circumstances of the case. The four-month period in 2000 occurred more than three years before the dependency proceedings commenced, and more than five years before Appellants requested de facto parent status. Moreover, four months was a short period in light of the children’s ages at the time de facto parent status was requested: Cassandra was 13; Andrew, 11; and Jessica, seven. In contrast, the grandmother who was erroneously denied de facto parent status in In re Vincent C. (1997) 53 Cal.App.4th 1347 had cared for her grandchildren for three years; the children were removed from her care only three months before she requested de facto parent status; and they had been in her care from the ages of one to four and two to five, a substantial portion of their young lives. (Id. at pp. 1350, 1353-1355.)

Third, Appellants did not identify any unique information about the minors that would assist the juvenile court. The Department had a lengthy history of contacts with Mother’s family and the record includes information from Mother, the minors, extended family members, foster parents, group home providers, therapists and other community members identifying the minors’ needs. The jurisdictional and dispositional hearings were “very contested,” in the Department’s words, as were hearings on the minors’ placements. Appellants’ contact with the minors had significantly diminished in the years immediately preceding and following the commencement of the dependency proceedings. Given the time that had passed since they had regular contact with the minors, substantial evidence supported a finding that they lacked unique information that would assist the court.

Fourth, Appellants did not attend any of the juvenile dependency hearings, nor did they consistently visit or communicate with the minors during the proceedings. Appellants attribute the lapse in contact to the Department’s neglect and their own ignorance of court procedures, but the court was free to draw different inferences from the evidence. The court may also have considered that Appellants did not intervene with Mother or the minors in response to the incidents that led to the detention of the children. While Appellants had no obligation to take any of the aforementioned actions, the fact of their inaction supported the court’s decision that they did not have the type of psychological bond with the minors and involvement in their lives that would qualify them for de facto parent status.

The final factor, that a future proceeding might result in an order permanently foreclosing any future contact between Appellants and the minors, was insufficient alone to compel a finding that Appellants qualified for de facto parent status. All relatives face the possibility of losing contact with dependent children who become adopted by new parents after reunification efforts fail. However, only relatives who have assumed the role of the children’s parents for a substantial amount of time qualify for the status of parties (de facto parents) in the proceeding who can protect their interests in ongoing contact with the children. For the reasons reviewed above, the juvenile court reasonably found that Appellants did not qualify for this status.

Apparently, Appellant’s primary concern is that they be seriously considered as a permanent placement of Andrew and Jessica. The Department has consistently stated that Appellants are a possible permanent placement for the minors. At the Department’s request, Texas authorities assessed and approved Appellants’ home for Jessica’s placement. The Department forwarded that assessment to State Adoptions and informed Appellants they were free to contact State Adoptions directly regarding permanent placement. Appellants’ anxiety may be founded in their unsatisfactory contacts with the Department and the reservations expressed by both minors’ counsel and the court-appointed special advocate for Jessica at the de facto parent status hearing. The reservations expressed about placing the minors with Appellants were primarily based on the fact that placement with Appellants would mean that the minors would remain involved with Mother’s extended family. This was a legitimate concern the juvenile court would address at the younger children’s Welfare and Institutions Code section 366.26 hearings. The issue of the minors’ placement was not before the juvenile court at the hearing on de facto parent status and it is not before this court in this appeal.[3]

We emphasize that the denial of de facto parent status does not reflect disapproval of Appellants’ conduct. The court’s decision simply means Appellants were not entitled to a special status in the proceedings. Appellants nevertheless remain important people in the minors’ lives. The Department acknowledged Appellants were “a caring aunt and uncle,” and minor’s counsel said they had played a “wonderful role” in the minors’ lives, giving the minors something they “desperately” needed. Appellants remained potential permanent caretakers for two of the minors and they were free to pursue placement by contacting State Adoptions and participating in further dependency proceedings. (Rule 1412(f).)

Disposition

The order denying Appellants de facto parent status is affirmed.

GEMELLO, J.

We concur.

JONES, P.J.

SIMONS, J.

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[1] We take judicial notice of the fact that Miranda, California, is about 80 miles from Fort Bragg, California. (Evid. Code, §§ 451, 452, 459.)

[2] All rule references are to the California Rules of Court.

[3] In their reply brief, Appellants contend de facto parent status should have been granted so they could protect their interests because the Department was biased against them. As evidence of bias, they argued the Department violated placement preferences by not placing the children with them while the case was pending. This argument was not raised below or in Appellants’ opening brief. We will not entertain an argument raised for the first time in a reply brief. (REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500.)