Filed 12/29/17 In re S.W. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE


In re S.W., a Person Coming Under the Juvenile Court Law.

SCOTT W.,
Plaintiff and Appellant,
v.
SOLANO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Defendant and Respondent.




A149731

(Sonoma County
Super. Ct. No. J36921)


Scott W. appeals from the juvenile court’s orders terminating his status as de facto parent of 13-year-old S.W. and issuing a restraining order protecting S.W. from him. He contends the court erred in: (1) terminating his de facto parent status; and (2) issuing a restraining order against him. We reject the contentions and affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
S.W. was born in July 2004. When she was an infant, her parents “sold” her to a woman named Andrea H. for $5,000 and a car. On September 18, 2006, the Solano County Department of Health and Human Services (the Department) filed a dependency petition on behalf of S.W. and her three siblings alleging they were at risk due to their parents’ substance abuse and neglect. S.W. continued to live with Andrea H., and for the next few years, the Department assessed whether Andrea H. could meet S.W.’s needs, as S.W. had developmental delays and displayed autistic behaviors. A tribe that intervened under the Indian Child Welfare Act (ICWA) approved the placement, and in July 2010, Andrea H. became S.W.’s guardian and the dependency was terminated.
On May 2, 2014, the Sacramento County juvenile court took emergency jurisdiction over S.W. after Andrea H. failed to provide adequate care for S.W. and left her with an inappropriate caregiver—her ex-husband Scott W., who had violent tendencies, was mentally unstable, and had a substance abuse and criminal history. Scott W. filed a request for de facto parent status. This was the first time the Department became aware of Scott W. because Andrea H. had married and divorced him without the Department’s knowledge.
Scott W. claimed he began living with Andrea H. and S.W. in 2007 and married Andrea H. the following year. They separated in November 2009 but a few months later, S.W. began visiting him every weekend. Andrea H. and S.W. moved out of state in August 2012, but Scott W. brought S.W. back to California in December 2012 after Andrea H. began using drugs and married a registered sex offender. S.W. lived with Scott W. until April 2014, when Andrea H. accused him of kidnapping S.W. and the police were called.
According to the detention report, S.W. was placed into protective custody after Scott W. forcibly took S.W. from Andrea H., left her in his ex-girlfriend’s care, and did not return to pick her up. There was an ongoing investigation regarding sexual abuse of S.W. Andrea H. said she and S.W. were at a motel when Scott W. kicked down the door, beat her, and dragged S.W. out of the room. She had previously allowed Scott W. to care for S.W. but had never given him custody. When she tried to have S.W. returned to her, Scott W. insisted on keeping her longer “because he was dying,” and more recently threatened to kill Andrea H. if she did not let him keep S.W. Andrea H. said she feared for her life.
A police report stated that witnesses saw Scott W. and two men forcibly remove S.W. from Andrea H. School staff reported S.W. had poor attendance while in Scott W.’s care. Staff was concerned that Scott W. would “flash” with anger and say things that were not true, for example, that he had brain tumors and was terminally ill.
Scott W. denied kidnapping S.W. He said he left S.W. with his ex-girlfriend because he had to go to the hospital. The ex-girlfriend reported that Scott W. appeared to be under the influence. He did not pick S.W. at the designated time and did not return her calls. After going to the hospital and not finding him there, the ex-girlfriend called the police. Scott W. became suicidal after S.W. was placed in shelter care. He yelled and screamed at sheriff deputies and made so many emergency calls that it created problems for dispatchers. He went to S.W.’s shelter and school and aggressively demanded to see her.
Scott W. reported a substance abuse history that included pain medication and alcohol addiction. He was a convicted felon and had been placed on an involuntary psychiatric hold. He said he kept S.W. from school for fear that Andrea H. would take her. He had considered “paying off” Andrea H. so he could keep S.W. and had already given her $20,000 or $25,000 to “keep the child in his care.” When asked how he knew where to find S.W., he responded that he was “a very resourceful person.” On May 8, 2014, the Solano County juvenile court reinstated the dependency and issued a temporary restraining order protecting S.W. from Scott W.
In support of his request for de facto parent status, Scott W. filed photographs and statements from family and friends to show he had properly cared for S.W. The juvenile court ordered a psychological evaluation to assess Scott W. and S.W.’s relationship. At the next hearing, the court noted the evaluation had not been completed, but ordered visits for Scott W. and granted him de facto parent status on the ground he might be able to provide insight as to S.W.’s developmental delays and autism.
On January 12, 2015, the Department recommended terminating Andrea H.’s guardianship. As to Scott W., the Department reported that after visiting with Scott W., S.W. “touched the butt of the other boy in the home and asked him if he wanted to get naked.” In another report, the Department expressed concern that S.W. exhibited sexualized behaviors and had resumed referring to Scott W. as her “boyfriend” as Scott W. acknowledged she did “a long time ago” when she was in his care. The foster mother was concerned that a “Sonic the Hedgehog” toy that Scott W. bought for S.W. had an “appendage” that “reportedly . . . [appeared to be] a penis.” The foster mother said she had caught S.W. watching an “X-rated” iPad video in which Sonic the Hedgehog and another character were having sex.
S.W. participated in a psychological evaluation with Blake D. Carmichael, Ph.D., who found S.W. had difficulty with verbal comprehension and processing information. S.W. had poor physical boundaries with strangers and expressed sexualized behaviors; it was unclear whether the behaviors were a result of a history of sexual abuse or developmental delays, or both. She shared a strong, positive bond with Scott W. but there were concerns about Scott W.’s mental health functioning. During the evaluation, Scott W. became angry and agitated and “[h]is voice became louder and demonstrative” in a way that “could be perceived as threatening.” He said he had done nothing wrong, persistently said that S.W. should live with him, and advised her to talk to the judge about returning to his care. He told S.W. he would give her Sonic the Hedgehog toys if she came to live with him. He did not see how his actions could be seen as coaching or bribing. Dr. Carmichael recommended that Scott W. participate in therapy, learn child-directed parenting skills, and improve his ability to express anger appropriately.
On March 19, 2015, the juvenile court terminated Andrea H.’s guardianship. A new concern was raised regarding Scott W. after he went to the foster parents’ church to have unauthorized contact with S.W. He claimed he was a church member but the foster mother, who had been a member for 15 years, had never seen him there before. The court ordered that Scott W. and S.W.’s visits be therapeutic.
Scott W. acted inappropriately during many of the visits that took place from April to June 2015. He would pretend to die and elicit S.W. to kiss him in order to “save[]” him. He persistently sought her physical affection, and S.W. would kiss, hug, and rub him. He told S.W. he had “saved” her and had spent “$15,000 to find her.” He expressed displeasure at the foster mother for taking away S.W.’s Sonic the Hedgehog toys and said, “there’s no rules to follow with daddy.” During one visit, visitation supervisors had to redirect Scott W. from speaking for S.W. and for laying down with S.W. in a side-by-side “spooning” position on the couch.
On June 13, 2015, S.W. began living with a new foster mother, Tracy B. Minor’s counsel filed a request to reduce or terminate Scott W.’s visits on the ground that S.W. was having nightmares, acting out sexually, and becoming aggressive after visits. The former foster mother said S.W. was obsessed with Sonic the Hedgehog, touched her private parts in front of others, and fondled mannequins in stores. The Department reported that S.W. was no longer asking for Scott W. often. The juvenile court ordered Scott W. to follow visitation rules and to not mention Sonic the Hedgehog during visits.
S.W.’s tribal representative supported reducing or terminating visits and said she was “uncomfortable the whole two-and-a-half hours” of a visit she observed. During that visit, Scott W., among other things, did not give S.W. personal space, questioned her for not kissing him, told her he would not bring the video game console to the next visit unless she sat with him, and brought Sonic the Hedgehog items and declared himself “the real Sonic Hedgehog,” in violation of court order. The visitation supervisor expressed concern that Scott W. may be “grooming” S.W. She was also concerned about Scott W.’s stability, as the visitation facility had recently been placed on partial lock down after he said in a “ ‘very passionate manner’ that he would do whatever it takes to get [S.W.] back and that no one was going to stop him.” Pending a full hearing, the juvenile court reduced visits, reminded Scott W. of visitation rules, and ordered him to limit physical contact with S.W. to a hug at the beginning and end of each visit.
On August 5, 2015, the Department recommended a permanent planned living arrangement instead of adoption because the tribe did not support adoption. The Department was continuing to assess Scott W. as a placement for S.W. but he had not provided the necessary information despite numerous requests. S.W.’s therapist reported that after visits with Scott W., S.W. regressed in her behaviors and had increased aggression and tantrums. After a full hearing on the issue of visitation, the juvenile court reduced Scott W.’s visits to three supervised visits per month.
On November 3, 2015, Scott W. scheduled a live scan as part of his placement assessment, and the results became available the following week. Scott W. had four felony convictions and eight misdemeanor convictions from 1989 to 2001 and needed an exemption in order to qualify as a possible placement for S.W. The Department informed Scott W. of the information and forms he needed to provide in order to become eligible for placement.
On December 14, 2015, the Department recommended a guardianship with Tracy B. S.W. had adjusted well to her home, and Scott W. had not been approved as a placement. Scott W. continued to use food or money to influence S.W., including giving S.W. $5 for a kiss. He was insensitive to S.W.’s cues, and on one occasion he threw a strawberry at her for not looking at him. After visits, S.W. had tantrums, was aggressive, and hit other children in her home. After hearing testimony from Scott W. and Dr. Carmichael, the juvenile court reduced visitation to once a month.
On February 8, 2016, the Department sent Scott W. a notification of his placement denial. Scott W. then emailed some information but did not return the necessary forms. The Department continued to recommend a guardianship with Tracy B. S.W. was doing well in her care and they had a positive relationship. S.W. told family and friends that she had taken Tracy B.’s last name and repeatedly said she wanted to continue living there.
On March 11, 2016, Dr. Carmichael filed an addendum in which he opined that despite some positive interactions, Scott W. was insensitive and unresponsive to S.W.’s cues. He dismissed S.W.’s preferences, attempted to discourage her from writing a note to Tracy B., and criticized her choice of toys. He showed little improvement from his last assessment. In contrast, Tracy B. was responsive to S.W.’s needs and exhibited the consistency necessary to serve as a model for S.W., whose specialized needs required reliable support.
During a March 12, 2016 visit, Scott W. asked S.W. if she was going to give him any love and tried to engage her by threatening to spank her bottom and by wrapping a blanket around her and kissing her forehead. At one point, after S.W. indicated she wanted to go home to Tracy B., Scott W. tried to get her to stay longer by promising her a surprise. When S.W. saw Tracy B. during a bathroom break, she reiterated her wish to leave.
On March 18, 2016, Scott W. filed a petition to be appointed guardian. The Department recommended that the juvenile court appoint Tracy B. as guardian and terminate Scott W.’s de facto parent status and visits. Dr. Carmichael opined that Scott W. and S.W.’s relationship had “fallen behind” and was “kind of stepping backwards.” S.W. showed less interest in their engagement, rejected his overtures, and preferred to play on her own. Scott W. was confident in his abilities to protect S.W. and was not receptive to advice on how to improve. The visitation supervisor testified regarding Scott W.’s inability to take cues from S.W. and refusal to follow visitation rules. The court terminated Scott W.’s visits.
A permanency hearing took place over the course of several court days. The Department social worker testified that S.W. was doing well in Tracy B.’s care and at school and had not asked to see Scott W. Scott W.’s witnesses testified about Scott W.’s relationship to S.W. At one hearing, Scott W. requested—and was granted—a continuance after he was involved in a car accident; according to a police report, Scott W. traveled at an unsafe speed and witnesses saw him pass out while driving.
Scott W. represented during the permanency hearing that he was not seeking immediate placement of S.W. but wanted more time and/or services to assume placement of her. Minor’s counsel requested a restraining order against Scott W. to protect S.W. and Tracy B.’s family. Counsel also requested termination of Scott W.’s de facto parent status on the ground that doing so would help S.W. maintain stability with Tracy B. In support of the restraining order, the tribal representative noted that Scott W. showed some keys to a new place to S.W. and told her he was moving closer to her, which indicated he knew where she lived. When S.W. said she wanted to have Scott W. pick her up and take her somewhere, Scott W. told her he was “working on it.” The representative also stated that restraining orders can be appropriate in situations where parties may become angry at a juvenile court’s decision to establish a guardianship. At the end of the hearing, the court appointed Tracy B. as guardian, terminated Scott W.’s de facto parent status, issued a restraining order, and terminated the dependency.
DISCUSSION
De Facto Parent Status
Scott W. contends the juvenile court erred in terminating his status as de facto parent of S.W. We disagree.
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 a 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 5.534(a); In re Kieshia E. (1993) 6 Cal.4th 68, 85, fn. 6.) De facto parent status gives the child’s present or previous caretaker standing to participate as a party in disposition hearings and subsequent hearings in which the status of the dependent child is at issue. (Cal. Rules of Court, rule 5.534(a) [a de facto parent has the right to attend hearings, present evidence, and be represented by retained counsel].) The purpose of conferring de facto parent status is to “ensure that all legitimate views, evidence and interests are considered in dispositional proceedings involving a dependent minor.” (In re Kieshia E., supra, 6 Cal.4th at p. 76.)
Whether a person should be afforded de facto parent status depends on an assessment of the individual and the facts of the case. (In re Patricia L. (1992) 9 Cal.App.4th 61, 66–67.) Factors the court should consider are 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.” (Ibid; In re Leticia S. (2001) 92 Cal.App.4th 378, 383, fn. 4.) The court should consider the person’s adherence to the role of a parent and whether he or she has information that would be helpful to the court in making its placement orders. (Id. at p. 383, fn. 5.)
A juvenile court may terminate an individual’s de facto parent status based upon a showing of changed circumstances. (Cal. Rules of Court, rule 5.570; In re Brittany K. (2005) 127 Cal.App.4th, 1497, 1513–1514.) The party petitioning for termination of the status bears the burden of proving changed circumstances. (In re Brittany K., supra, 127 Cal.App.4th, at pp. 1513–1514.) Examples of appropriate circumstances to terminate de facto parent status include cases where a psychological bond no longer exists between the de facto parent and the child, or where the de facto parent no longer has reliable or unique information about the child that could be useful to the court. (Ibid.; In re Patricia L., supra, 9 Cal.App.4th at p. 67.) An order granting or denying a motion to terminate de facto parent status is reviewed for an abuse of discretion. (See e.g. In re Brittany K, supra, 127 Cal.App.4th at pp. 1512–1515.)
Here, the juvenile court awarded de facto parent status to Scott W. because it believed that he, as S.W.’s former caregiver, might be able to provide insight as to S.W.’s developmental delays and autism diagnosis. The two also appeared to share a strong, positive bond. Their relationship, however, became less significant over the course of the dependency, as Scott W. engaged in inappropriate behaviors that resulted in the court reducing—and ultimately terminating—visits. It became apparent that he did not have unique information regarding S.W.’s developmental delays and autism, and that in fact, he had difficulty understanding her special needs. He also failed to make sufficient efforts to be approved as a placement, and at the time of the permanency hearing, he was still not prepared to have S.W. placed in his care. Towards the end of the dependency, Dr. Carmichael opined that Scott W. and S.W.’s relationship had “fallen behind” and that S.W. no longer sought out Scott W., showed less interest in their engagement, rejected some of his overtures, and preferred to play on her own.
When the juvenile court terminated Scott W.’s de facto parent status, it noted, “There is no doubt that [S.W.] is doing better than she has ever done emotionally, academically, and physically. Her behavior is better. She is a sweet and social child, by all accounts. She’s in school on time. Her educational needs are not being neglected. Considering her special needs, it would be a terrible travesty if her educational needs were not met. And [Scott W.] did a very poor job of that, and there’s no evidence to the contrary. And proof’s positive that she’s continued to develop in the wonderful environment where she is. She has progressed and has done amazingly well. She’s very lucky to have the home she has.” S.W. had adopted Tracy B.’s last name as her own, had developed a bond with Tracy B., and repeatedly said she wished to stay in her home. She was developing life skills, including cooking and picking out her own clothes.
The juvenile court noted that in contrast, Scott W.’s care of S.W. “has been concerning to all.” “His emotions in court have sometimes been erratic. . . There is no doubt that it would be a detriment for [S.W.] to continue to have a relationship with [him].” The court recognized that Scott W. had “true affection” for S.W. and that his intentions were “noble and kind,” but that there was no “excuse [for] his prior poor track record with her when she was in his care, keeping in mind her special needs . . . .” In light of the progress S.W. had made in Tracy B.’s home, the bond she shared with Tracy B., and the change in her relationship with Scott W., the court could reasonably determine there were changed circumstances justifying a termination of Scott W.’s de facto parent status. There was no abuse of discretion.
Restraining Order
Under Welfare and Institutions, section 213.5, the juvenile court may issue an order “enjoining any person from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, . . . destroying the personal property, contacting, . . . or disturbing the peace of the child . . . .” Issuance of a restraining order under this section does not require “evidence that the restrained person has previously molested, attacked, struck, sexually assaulted, stalked, or battered the child.” (In re B.S. (2009) 172 Cal.App.4th 183, 193.) Nor does it require evidence of a reasonable apprehension of future abuse. (Id. at pp. 193–194.) The statute is analogous “to Family Code section 6340, which permits the issuance of a protective order under the Domestic Violence Prevention Act . . . if ‘failure to make [the order] may jeopardize the safety of the petitioner . . . .’ ” (Id. at p. 194.) Appellate courts have applied both the substantial evidence and abuse of discretion standards in reviewing the juvenile court’s issuance of a restraining order under this section. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1512 [referring to both standards]; In re Cassandra B. (2004) 125 Cal.App.4th 199, 210–211 [substantial evidence].)
Here, under either standard, the juvenile court did not err in issuing a restraining order against Scott W. Throughout the dependency, there were concerns about Scott W.’s instability and his refusal to follow court orders and rules. At the time the dependency was reopened, there was evidence he forcibly removed S.W. from Andrea H. and made her fear for her life. School staff was concerned that Scott W. would “flash on staff,” and they felt they were not capable of keeping S.W. safe from him. He had a history of being resourceful and manipulative in order to gain access to S.W. and used his investigatory skills to, among other things, research Andrea H.’s partner and search for S.W. when Andrea H. did not return her to him. After S.W. was placed in a shelter, he became unstable, yelled at deputy sheriffs, and obsessively made emergency calls. He located the shelter and went to the shelter and to the school, aggressively demanding that S.W. be turned over to him. He repeatedly violated visitation rules, was constantly having to be redirected, and persistently referred to Sonic the Hedgehog, in violation of court order. He caused a partial lock down of the visitation center by saying in a “very impassioned manner” that he was going to do “whatever it takes” to get S.W. back and that no one was going to stop him.
Scott W. also engaged in behaviors that caused direct concern to S.W.’s caregivers, potentially jeopardizing her placement with them. He located the former foster parents’ church and went there in an attempt to have unauthorized contact with S.W., claiming to be a member of the church when this was not true. He showed S.W. some keys and told her he was moving closer to her, suggesting he knew where she lived, and causing the foster mother to feel fearful that he was stalking her and her family. He told S.W. he was “working on” picking her up and taking her somewhere.
Scott W. acknowledges he may have acted inappropriately in the past, but claims there was no evidence he engaged in inappropriate conduct after July 2015. The juvenile court noted on September 7, 2016, however, that Scott W.’s behavior in court had been “inappropriate and emotional” at times, and that his “affect as recently as our last court date [of August 31, 2016] was concerning.” The court also expressed concern that without a restraining order, there would be nothing preventing Scott W. from trying to fulfill his need to see S.W., thereby disrupting S.W.’s current placement, “either [by] intimidation to the care provider or . . . confusion to [S.W.], now that she’s done so well and has not been requesting to see [Scott W.].” The concern was especially great in this case, where S.W. was vulnerable because of developmental delays and autism.
Further, Dr. Carmichael, who met with Scott W. at various times during the dependency period, opined as recently as February 2016 that Scott W.’s aggressive behaviors had not changed. There were ongoing concerns by the visitation supervisor of Scott W.’s refusal to follow visitation rules and to respect S.W.’s wishes. There was no evidence that Scott W. engaged in individual therapy, anger management, or parenting classes at any time during the dependency, even though they had been recommended and suggested to him. Given the level of obsession, instability, aggressiveness, and resourcefulness he demonstrated throughout the case, and the lack of progress he made to address those concerns, it was reasonable for the court to determine that a restraining order was necessary to protect S.W. and Tracy B.’s family, and S.W.’s placement in the home.
DISPOSITION
The juvenile court’s orders are affirmed.



_________________________
McGuiness, P.J.


We concur:


_________________________
Pollak, J.


_________________________
Jenkins, J.