Filed 10/18/17 In re A.C. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Dismissed.

Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.

Jean-Rene Basle, County Counsel, and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.

A.M., formerly the foster mother of A.C., appeals an order of the juvenile court denying her petition under Welfare & Institutions Code section 388 to change its order removing the child from her home and placing the child in a new foster home.[1] We dismiss the appeal because she lacks standing to challenge the order on appeal.

I

FACTUAL BACKGROUND

A.C. (the child) was born on April 27, 2015 in a medically fragile condition and tested positive for tetrahydrocannabinol (THC). Doctors diagnosed him with Hypovolemia, an abnormally low volume of blood in the body, and transferred him to St. Mary’s Medical Center.

Two days later, San Bernardino County Children and Family Services (CFS) filed a juvenile dependency petition against the child’s mother and father, the details of which are not relevant to this appeal. The next day, the juvenile court removed the child from his parents and placed him in the temporary custody of the director of CFS. On June 10, 2015, the court sustained the dependency petition, removed the child from both parents, denied them reunification services, and set a section 366.26[2] hearing. The court terminated parental rights on October 29, 2015.

In the meanwhile, CFS placed the child with A.M. after his release from St. Mary’s Medical Center. Medical staff informed CFS on May 5, 2015 that the child was feeding normally and ready to be discharged. They said he would not require a special needs placement and there were no medical concerns at that time. The child’s placement with A.M. began on May 15, 2015, and A.M. expressed interest in adopting him early in the placement.

The child weighed five pounds seven ounces at birth. The day before he was placed with A.M., he weighed six pounds six ounces. Weight gain proved to be an ongoing problem. At four months old, he weighed 11 pounds four ounces and was in the 0.4 percentile for height and weight for infants his age. In August 2015, his doctor recommended adding less water to his formula to increase his caloric intake, and that seemed to help. Other than difficulty gaining weight, the child was in good health. He was starting to hold his own bottle, turn over, lean forward, and hold up his head. He was also making good eye contact and could follow objects with his eyes.

In the section 366.26 hearing report—when A.C. was about five months old—CFS reported things were going well with the child’s placement. CFS identified A.M. as the child’s prospective adoptive mother and noted she met his social, developmental, educational, medical, and emotional needs. She was a 32-year-old mother of three children, ages 6, 10, and 11. She owned a four bedroom, three bathroom home in a working class community. She had a bachelor of arts degree in psychology and was working on a master’s degree in social work while working as a hair stylist and daycare provider. CFS said the child had adjusted to the home and A.M. planned to apply for adoption, saying they had bonded and the child fit in with her family.[3] A.M. had also expressed an interest in adopting the child’s one-year-old sister, whom the Los Angeles County Juvenile Court placed in A.M.’s home so the siblings could be together.

In April 2016, CFS reported the child weighed 15.5 pounds and was 25.5 inches tall. A.C. was generally healthy, however, CFS reported some developmental problems, saying he appeared to be somewhat delayed in meeting developmental milestones. He was found to be developmentally normal when referred to screening, assessment, referral, and treatment (SART) at one month old, but CFS requested a reassessment because he “is accomplishing his developmental milestones . . . at a slower rate than same aged children.”

In addition, A.C.’s problem gaining weight worsened. He has had very low weight since birth. At five months, he weighed 14.06 pounds, putting him in the 7.95 percentile for his age group. At nine months, he weighed 15.81 pounds, in the 2.57 percentile. At almost 14 months, he weighed only 16 pounds, which put him in the 0.21 percentile for his age group. His doctor diagnosed him as failing to thrive, and recommended an appointment two weeks later to follow up. A.M. did not arrange an appointment, however, and later minimized its importance by saying it was only for a weight check. When she did bring the child to the doctor about three months later, he had gained a pound, but lost ground against his peers. He was in the 0.19 percentile.

In a September 2016 report, CFS said it had been difficult to coordinate visits with the child because of the foster mother’s work and school schedule. For the prior two months the visits had occurred at the child’s daycare facility, where according to the daycare provider, the child spent more than 12 hours four days a week. CFS also reported a SART occupational therapy provider said the child had been eligible for services since July 2016, but had not obtained them. The therapy provider “expressed her concern . . . [because] the child needs to receive services as he is very delayed and it is imperative for his future that he receive services.”[4] According to the therapist, the foster mother said “she couldn’t commit to bringing the child in for services due to her work schedule and would call back,” but she never did.

On September 22, 2016, the social worker went to A.M.’s home to discuss recent problems. The social worker saw A.C. and A.M. and “discussed his Failure To Thrive (FTT) diagnosis, inconsistent physician visits, lack of follow through with recommendations & [the] care provider^[’^]s struggle with accessing services for child due to her very busy schedule.” A.M. downplayed the problems. CFS completed a safety assessment, which indicated the child was unsafe.

A week later, CFS removed A.C. from A.M.’s home and took him for a medical evaluation. The next day, CFS filed a notice of emergency removal in the juvenile court. A.M. filed an objection to the removal, and the court set an October 21, 2016 hearing.

A.C. remained in the hospital for five days. Doctors placed him on a feeding regimen of 1,000 calories a day. At discharge, he had gained 1.24 pounds. His doctor concluded, “With adequate weight gain on hospital feeding regimen, it was likely that the child’s failure to thrive was due to neglect.” His doctors diagnosed him with anemia and prescribed a nutrition supplement, a multivitamin with iron, and ongoing weight checks.

CFS placed the child in a new foster home specializing in children diagnosed as failing to thrive. At a check-up on October 6, he weighed 20 pounds, up to the 5.88 percentile for his age group. In an October 21 report, CFS said he appeared to be thriving. The caregiver said he is “a great eater and is very active,” had begun occupational therapy every week, and was set to begin seeing a nutritionist and neurologist, as well as starting physical and speech therapy.

On October 7, 2016, A.M. filed a section 388 petition. She sought to change the court’s “order permitting the removal of the minor’s placement from my home” and requested a new “order for the specific placement of the minor into my care and my designation as the minor’s adoption placement.” She also asked to be named A.C.’s de facto parent so she could use counsel to present information to the court. The court denied both requests. It refused to change the order because the petition did not identify new evidence or a change of circumstances and the proposed change did not promote the best interest of the child. The court wrote CFS’s report “makes it clear that it is not in the child’s best interest to remain with caretaker.”

CFS responded to A.M.’s objection to removal. They recommended the court leave the child with his new foster family until he stabilized and then place him with a new adoptive family. They reported it had been difficult to coordinate contact because of A.M.’s busy work and school schedules and the child spent more than 12 hours in daycare four days a week. “When [CFS] expressed concern months ago about the lack of time A.M. was spending with the child and his ongoing weight concerns, she expressed the need to change up her schedule in order to be present more for the child and also her other children and presented a plan for how she was going to be able to do this. Unfortunately, A.M. did not follow through with this plan and only became busier with outside of the home activities.” According to CFS, A.M. was not with the child sufficiently to be aware of or meet his specialized needs. They concluded the “significant weight improvement following removal from the home indicates the necessity of continued removal from the previous caregiver.”

On October 21, 2016, the court held a hearing to address A.C.’s removal. A.M. and her attorney failed to attend due to a misunderstanding on the attorney’s part. The court continued A.C. as a dependent of the court in the custody of CFS, and continued his placement with the new foster family. The court also found the child’s removal supported by the evidence in CFS’s report, and set a section 366.3 hearing for April 14, 2017.

One week later, A.M. filed a second section 388 petition. She requested a hearing and sought “removal of any findings of neglect or abuse by A.M.” and “return of custody of the minor child who may then enjoy the benefit of placement with [his] sibling.” She attached a declaration with numerous exhibits in support of her petition. Ultimately, the court set a hearing on her petition for January 26, 2017.

In the meanwhile, A.C.’s circumstances improved in the new foster placement. By November 16, he had gained two pounds and was in the 18.85 percentile for his age group. He also made significant development advances. CFS arranged a visit between A.C. and his sister for December 14. However, A.M. arrived alone and explained social services in Los Angeles had removed his sister from her custody. The social worker who attended said A.C. did not recognize A.M. at first and the two did not appear bonded.

At the section 388 hearing, A.M. asked the court to find she had made a prima facie case supporting A.C.’s return and set an evidentiary hearing. She offered in support the fact she had taken A.C. to doctors frequently, asked for help from specialists, and did her own research to “contrive a diet that was improving his weight gain.” The court determined A.M. had failed to make a prima facie case that returning A.C. to A.M.’s custody would be in his best interest, found no change in circumstances, and denied the petition. A.M. filed a timely notice of appeal.

II

DISCUSSION

Appellant does not have standing to appeal the trial court order because she is not aggrieved. Without standing, there is no justiciable controversy for the court to entertain. To have standing, a person must have rights that may suffer injury. (Clifford S. v. Superior Court (1995) 38 Cal.App.4th 747, 751.)

At the disposition hearing, the court awarded legal custody to the director of CFS. When the court placed the child in A.M.’s foster care, it did so by exercising its supervisory powers based on the best interests of the child. (§ 361.2, subd. (e); In re Robert A. (1992) 4 Cal.App.4th 174, 189-190.)

A.M.’s status as the child’s foster mother for 16 months does not confer the rights of a parent or legal guardian. In In re P.L. (2005) 134 Cal.App.4th 1357, we held that even de facto parents do not have such rights. (Id. at p. 1361.) A de facto parent is “a nonparent who has undertaken the parental role on a day-to-day basis, ‘seeking to fulfill both the child’s physical needs and his psychological need for affection and care.’” (In re Kieshia E. (1993) 6 Cal.4th 68, 75.) Such a parent “may, in time, acquire an ‘interest’ which is ‘substantial’ in the ‘“companionship, care, custody, and management”’ of the child.” (Ibid.) “De facto parents have limited rights that include: (1) the right to an attorney; (2) the right to be present at hearings; and (3) the right to present evidence and be heard. Specifically, they do not have the right to reunification services, custody, or visitation.” (In re P.L., at p. 1361.)

Though A.M. did occupy a parental role for 16 months, she did not attempt to obtain de facto parental status until after the removal. A.M. acknowledges this fact. And at that point, the trial court denied her request—a determination she has not appealed. The practical effect is that A.M. has, if anything, less claim to standing than the appellant in In re P.L. If a de facto parent does not have a right to custody sufficient to give her standing to challenge removal, then a caregiver who has not obtained that status does not have such a custody right either. We therefore conclude In re P.L. compels the conclusion in this case that “appellant has no legal standing to complain of the decision to place the child with the new [foster family] since she has no right to custody or continued placement” as a former foster parent. (In re P.L., supra, 134 Cal.App.4th at p. 1361.) The order changing custody was within the sound discretion of the court, as was the order denying her section 388 motion to revisit that decision. She cannot appeal that order because it did not affect her legal rights.

III

DISPOSITION

We dismiss the appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH

J.

We concur:

RAMIREZ

P. J.

FIELDS

J.