In re Sean F.

Filed 10/5/06 In re Sean F. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, James Lauer, Jr., Referee. Reversed.

John F. appeals an order declaring the foster parents of his two dependent children, Sean F. and Emily F., the children's de facto parents. He contends the juvenile court abused its discretion by granting them de facto parent status. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On September 9, 2005, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of then 16-month-old Sean under Welfare and Institutions Code section 300, subdivision (b),^[1] based on allegations his parents' home was in a state of severe disrepair and filthiness. In July 2004, the Agency had offered Sean's mother, Niomi E., and John voluntary services, but they did not comply with their case plans. Police had received numerous calls about Sean's welfare and observed Niomi and John panhandling with Sean late at night. Niomi's two older children were in adoptive placement. John is not Sean's biological father, but the court found him to be his presumed father. Niomi was pregnant with John's child. The court ordered Sean detained.

Sean was placed with the family who had adopted his older half-brother, Cody E. His foster mother said he was "lifeless," when he was first placed in her home and he was assessed as developmentally delayed. At a supervised visit on September 29, 2005, Sean pulled away from the parents and stayed near the foster mother.

On October 21, 2005, the parents submitted waivers of rights and the court established jurisdiction, declared Sean to be a dependent child, ordered him placed in out-of-home care, and ordered the parents to comply with their case plans.

Emily was born in November 2005. She was initially removed from John and Niomi at the hospital, but then returned to their care. She had reflux disease, which required her caretaker to feed her every two to two and-one-half hours. During the short time she was in the parents' care, they did not appear to be feeding her sufficiently and she lost weight and had bad diaper rash and a bad smell. The Agency petitioned on her behalf under section 300, subdivision (b), and the juvenile court ordered her detained. The parents asked that she be placed in the same foster home as Sean and Cody. On January 19, 2006, the parents submitted waivers of rights and the court found the allegations regarding Emily true, declared her a dependent child placed in out-of-home care and ordered the parents to participate in their case plans.

The social worker reported the foster parents were providing for Sean's special needs, including his developmental delays, dental problems and possible hearing loss. The foster mother drove the children a long distance so they could visit the parents. Sean participated in occupational therapy and had Regional Center services, including early intervention, speech therapy and sign language instruction. The foster mother was involved in obtaining the necessary services and Sean was showing significant improvement.

On March 17, 2006, the foster parents applied to be Sean and Emily's de facto parents. They said Sean had lived with them since September 16, 2005. The foster mother said she was the primary caregiver and the foster father was home at 4:00 p.m. each day and on weekends. She said she participated with Sean in his four times a week therapy. She tried to redirect him so that he would not get frustrated and bang his head and was working with him to develop communication and coping skills. She said activities included "snuggle time, reading, songs and dance, play dates, trips to the park, special outings." The consultant who provided Sean's in-home early intervention program said Sean's progress was due in part to the consistent nurturing, structure and individual attention provided by the foster parents. The de facto parent application regarding Emily said she had lived with the foster parents since December 6, 2005. She was easygoing, happy and on track and liked to "babble, squeal and giggle." Activities included "snuggle and love her, bath time fun, baby play, singing and dancing." She was in the process of being transitioned off a special formula for reflux disease. At the time of the application, the foster parents had not attended any court hearings or provided the court with written reports about the children. A letter from a friend of the foster mother was offered in support of the applications.

On April 12, 2006, the court conducted the six-month-review hearing in Sean's case and continued him a dependent child. It found John had made substantial progress, but Niomi had not. It continued John's services for six months and terminated Niomi's services.

The court then considered the de facto parent applications. John's counsel argued the children had not been with the foster parents for sufficient time to justify granting the applications and negative information about John included in the visitation logs showed the foster mother was opposed to reunification. The Agency's and the children's attorneys spoke in favor of granting de facto parent status. The court granted the foster parents' application, stating it was concerned about doing so during the reunification period, but it believed the caregivers met the requirements of the statute.

DISCUSSION

John asserts the juvenile court abused its discretion by granting de facto parent status to the foster parents. We hold the court abused its discretion and reverse.

The definition of de facto parent is found in the California Rules of Court.^[2]

" '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[.]" (Rule 1401(a)(8).)

The concept of de facto parent was judicially created to recognize limited rights in dependency cases for a person who has been found by the juvenile court to have assumed on a day-to-day basis the role of a parent, fulfilling the child's physical and psychological needs. (In re Kieshia E. (1993) 6 Cal.4th 68, 70-71; rule 1401(a)(8).) In determining whether a person is a de facto parent, the court should consider factors such as whether the child is psychologically bonded to the adult, whether the adult has assumed the role of a parent on a day-to-day basis for a substantial period of time and possesses information about the child that is unique from other participants in the process, whether the adult has regularly attended juvenile court hearings, and whether a future proceeding may result in an order permanently foreclosing any further contact with the adult. (In re Patricia L. (1992) 9 Cal.App.4th 61, 66-67; In re Ashley P. (1998) 62 Cal.App.4th 23, 27.)

A de facto parent is entitled to be present at hearings, with counsel, and to introduce relevant evidence that may aid in the trial court's decision-making process with respect to the child's best interests. (Rule 1412(e); In re Joshuia S. (1988) 205 Cal.App.3d 119, 125.) The doctrine of de facto parenthood should be "liberally applied 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.)

The decision to grant or deny de facto parent status depends on an assessment of the particular individual and the facts of the case. (In re Patricia L., supra, 9 Cal.App.4th at pp. 66-67.) The person applying for de facto parent status has the burden of showing he or she qualifies to be a child's de facto parent. (In re Jacob E. (2004) 121 Cal.App.4th 909, 919.) The juvenile court applies the preponderance of the evidence standard in making its factual findings and we review those findings for an abuse of discretion. (In re Leticia S. (2001) 92 Cal.App.4th 378, 381.)

Here, the juvenile court abused its discretion in declaring the foster parents to be Sean and Emily's de facto parents. There is no question that the record shows the foster parents have been fulfilling the children's physical and psychological needs for care and affection, and, because of Sean's significant needs, have gone far beyond providing basic care. Indeed, the social worker reported the foster mother had been taking Sean to special programs and participating in therapy with him to help him to overcome developmental delays. In addition, she ensured he received treatment to address hearing and dental problems. The social worker also reported that during a visit, which occurred only two weeks after Sean was removed from the parents' care, he resisted being held by either parent and sought to stay in the foster mother's lap. However, all of this information was available in the social worker's reports. It was not information that the court could learn only from the foster parents.

More significantly, however, rule 1401 and case law provide that a de facto parent must have fulfilled the parental role for a substantial period of time. That factor is not present here. Sean was placed with the foster parents when he was 16 months old. At the time of the hearing, he had been in their care for only seven months. Emily was placed with them at the age of one month and, at the time of the hearing, had lived with them for four months. We recognize the specific time a child is in the care of persons seeking de facto parent status does not by itself determine the issue. (Christina K. v. Superior Court (1986) 184 Cal.App.3d 1463, 1467.) However, the rule and case law require that the time be "substantial." The time here, seven months for Sean and four months for Emily, was not that. Despite the fact that the foster parents were providing exemplary care, the time was simply too short in the absence of any other extraordinary factors to justify declaring the foster parents to be de facto parents.

We note also an additional factor to consider is whether the person seeking de facto parent status has regularly attended the juvenile court hearings. Because the children had been in the care of the foster parents for a short period of time, this was the foster mother's first appearance in court on the children's cases. The father was not present.

In our view, it was not advisable for the court to confer de facto parent status when the foster parents had been caring for the children for a short time. The juvenile court indicated it was uncomfortable with granting de facto parent status when the case was in the reunification stage,^[3] but stated the foster parents had met the requirements of the statute. We assume the court was referring to rule 1401(a)(8), which sets out requirements for de facto parents. Although foster parents may qualify as de facto parents, under the particular facts here, the juvenile court abused is discretion in declaring the foster parents to be Sean's and Emily's de facto parents.

DISPOSITION

The order is reversed.

O'ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

NARES, J.

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^[1] All statutory references are to the Welfare and Institutions Code.

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

^[3] At the time of the hearing, John was continuing to work toward reunification. At the six-month hearing, the court had extended his services for six more months to help him reunify with Sean. Services also were in place for Emily, who had been a dependent for five months.