In re K.R.

Filed 5/24/06  In re K.R. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

            Nancy O., grandmother of the dependent child K.R., appeals from the order of the juvenile court denying her (1) application for de facto parent status, (2) petition to modify a visitation order pursuant to Welfare and Institutions Code section 388,^[1] and (3) request to examine the juvenile court records.  On appeal, she also asserts the applicability of the Indian Child Welfare Act.  We disagree with her claims of error and affirm the order.

BACKGROUND[2]

            In December 2002, the San Benito County Juvenile Court took jurisdiction over 16-month-old K.R.  The court found the child came within the provisions of section 300, subdivision (b) [failure to protect], after finding true allegations that the child was left unsupervised by the mother, fell in the family hot tub and nearly drowned; that the child's mother Alison R. (daughter of Nancy O.) had a substance abuse problem that affected her ability to adequately parent her child; and that mother and grandmother endangered the child by engaging in verbal and physical altercations in his presence.  The child remained in mother's custody.  Mother and child had lived with grandmother since K.R.'s birth.

            About six weeks after the first petition was adjudicated, the child was placed in protective custody and a subsequent petition was filed, alleging domestic violence between mother and grandmother.  A psychological evaluation of mother showed a severe personality disorder and serious drug use, but mother denied she had a drug problem.  Grandmother requested placement of the child with her, but her involvement in the domestic violence leading to K.R.'s detention and her refusal to drug test caused the San Benito County Health and Human Services Agency (Agency) to recommend against placement with her.

            Mother's situation deteriorated over the next months:  she continued to have altercations with grandmother, she became homeless, and she made little progress on her case plan.  Finally, in the fall of 2003, mother entered a residential drug treatment program.  The child was briefly placed with mother, but she had a relapse and the child was again placed in protective custody.  Mother eventually completed the residential treatment program, and in April 2004, the child was returned to her custody under a family maintenance plan.

            By September 2004, the Agency reported that mother was struggling both with sobriety and with parenting.  Then in October 2004, mother failed to show up at two court hearings.  She apparently had absconded with the child, who was eventually located and detained.

            In March 2005, the juvenile court terminated reunification services and set a selection and implementation hearing, pursuant to section 366.26.

            At the contested selection and implementation hearing on July 18, 2005, attorney Douglas Tsuchiya appeared, stating that he had recently been retained by the maternal grandmother (Nancy O.) and that he was contemplating filing a motion to intervene on her behalf.  The juvenile court allowed the attorney to remain in the courtroom, even though his client was not a party to the proceeding.  After hearing testimony from the social worker, the court terminated parental rights and ordered adoption as the permanent plan for the child.

            On September 1, 2005, Tsuchiya filed three motions on behalf of grandmother:  a request for de facto parent status, a petition for disclosure of juvenile court records under section 827 and a section 388 petition for modification seeking visitation with the child.  Grandmother's supporting declaration stated that she had been involved in the care and raising of the child from the time of his birth until his detention and that K.R. and his mother had lived with her during that time.  Grandmother also stated that she had regular visits with the child when he was under juvenile court jurisdiction even though those visits were not authorized by the Agency.  She explained that she was a drug user at the time and so did not comply with the Agency's request for drug testing.  Grandmother further explained that she completed a residential drug treatment program on May 9, 2005, and had been clean and sober since March 11, 2005.  She additionally stated that in a meeting in May 2005, the Agency told her she did not need an attorney.

            The Agency filed opposition to the three motions and a hearing was held on September 12, 2005.  The matter proceeded by way of offer of proof with counsel summarizing grandmother's positions and evidence.  The court denied all three petitions:  for de facto parent status, for examination of juvenile court records and for modification of visitation order.  Grandmother now appeals.

DISCUSSION

            I.            De Facto Parent Status

            Grandmother first contends that the juvenile court erred in denying her application for de facto parent status.  She claims that she provided proof of her interest in K.R.'s welfare, such that she should have been granted the status of de facto parent.

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