Filed 4/30/18 In re M.L. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE


In re M.L., a Person Coming Under the Juvenile Court Law.

MENDOCINO COUNTY DEPARTMENT OF SOCIAL SERVICES,
Plaintiff and Respondent,
v.
D.G.,
Defendant and Appellant.



A152069

(Mendocino County
Super. Ct. No.
SCUK-JVSQ-12-16595-01)

In re M.L., a Person Coming Under the Juvenile Court Law.

MENDOCINO COUNTY DEPARTMENT OF SOCIAL SERVICES,
Plaintiff and Respondent,
v.
A.S.,
Defendant and Appellant.



A152260


INTRODUCTION
Appellant A.S. is the maternal grandfather (Grandfather), and appellant D.G. is the maternal grandmother (Grandmother), of M.L. They have separately appealed from the same juvenile court order terminating their de facto parent status. We consider the appeals together, and issue a single opinion.
BACKGROUND
We set forth a portion of the background of the proceedings as previously stated in our 2015 opinion in Mother’s and Grandfather’s prior appeal. (In re N.J. (April 7, 2015, A141600) [nonpub. opn.].)
“N.J.[ ] and M.L., 10 years old and seven years old, respectively, when the juvenile dependency petition was filed in September 2012, were then living with their maternal grandparents and Mother. The maternal grandparents had petitioned for and been appointed their temporary guardians in July 2012. The Department filed a petition alleging four counts of failure to protect the minors, based on Mother’s uncontrolled medical condition (seizure and anxiety disorders), drug use (marijuana and prescription medications) and domestic violence.
“The court found continued placement in the home of the temporary guardians or the parents would be contrary to the minors’ welfare. The minors were detained and placed in foster care.
“After the detention hearing, the Department filed an amended petition adding allegations regarding the grandparents, including that N.J. and M.L. had been physically abused by Grandfather and their grandmother had been unable to protect them. About a month later, the Department filed a second amended petition, eliminating those allegations.
“At the jurisdictional hearing in November, Mother admitted the allegations of the amended petition. The court terminated the grandparents’ temporary guardianship, and ordered services for Mother. The Department recommended against placement with the grandparents because the minors did not want to live with them and indicated Grandfather hit them.
“The grandparents filed a request for de facto parent status, which the court granted in December.
“In a report for the six-month review hearing, the Department noted Mother had minimally complied with services. She had been terminated from an alcohol and other drugs program, and had married a man with a criminal record, including domestic violence and controlled substance use. The minors were both placed at the Children’s Village after they ‘received 7–Day notices from their foster placement due to ongoing behavioral and emotional outbursts.’ N.J. physically threatened another resident of Children’s Village and ‘tested the boundaries of staff by running around the premises at 8:30 at night’ and climbing on the roof, necessitating a call to police. The court continued reunification services to Mother, and authorized the Department to permit unsupervised visitation with the grandparents for a minimum of one hour monthly.
“In its report for the 12–month review hearing, the Department indicated N.J. had been discharged from the Children’s Village due to her defiant behavior and leaving the premises at night. She was placed in a therapeutic licensed home. M.L. remained at Children’s Village, and had behaviors that required a high level of care. The social worker recommended both minors continue to receive therapy. Mother had made minimal efforts to comply with her case plan.
“The court approved a settlement agreement reached by the parties, under which services to Mother were extended for a period not to exceed 18 months. The court also authorized unsupervised visits for the grandparents with N.J., which could be expanded to include overnight visits in the social worker’s discretion.
“The Department’s report for the 18–month hearing in March 2014 indicated Mother was still not complying with her case plan. She tested positive for drugs, appeared to be under the influence at a Women’s Empowerment Support group, and was homeless. The grandparents had engaged in services and were consistently visiting the minors.
“On March 6, the court terminated reunification services to Mother. It ordered as to N.J. a ‘permanent plan of placement with [foster mother], with a specific goal of placement with the maternal grandparents.’ The court also increased visitation with the grandparents ‘to include overnight visits every other weekend,’ and up to three overnight visits per week at the discretion of the social worker. [¶] . . . [¶]
“The court ordered the Department to hold a family planning meeting, to include the grandparents. Counsel for the Department informed the court at the March 25 hearing: ‘We did have a meeting with the grandparents. . . . And the plan is to go forward and move [N.J.] Her sister [M.L.] is placed in Santa Rosa. This way the siblings can be together. [¶] . . . We do have a plan to set up family therapy between the children and the grandparents, and we’ll help them with visits.’ Counsel for grandmother indicated the Department agreed to ‘provide gas vouchers, they would increase visitation to allow more, in terms of frequency and lengths of visitation with the grandparents . . . and that they would facilitate what basically is the reunification plan which is essentially individual counseling . . . and some family counseling as well.’
“The court ordered N.J.’s placement changed to Children’s Village. The court also ordered that ‘the Department will follow up on its promises to the family members that there will be gas vouchers for visitation, that the court-ordered visitation will continue to occur, and we’ll return to court if there’s a modification needed, and that counseling will be set up for the children and the maternal grandparents to facilitate the goal of reunification.’ ” (In re N.J., supra, A141600.) We affirmed that order.
At the time of the next semi-annual review hearing in August 2015, M.L. was still placed at the Children’s Village group home. Although her behaviors had improved in the “last few weeks,” she had been leaving the school campus without permission and “dumpster diving” to get food. Her grandparents were allowed to take her to a family reunion. Grandfather “is currently on a 60 month summary probation due to a DUI from January, 2011,” and his driver’s license was suspended. M.L. was having overnight visits with both grandparents every other weekend. M.L. told the social worker the visits were “chaotic and made her feel nervous.” She reported Grandfather “was being mean to her mother” in the car returning from the family reunion, causing her mother to have seizures. The Department’s status review report indicated M.L returns from visits with her grandparents “tired and disheveled, her hair is not brushed and it is not apparent whether or not she has bathed.” M.L. told the social worker a teen cousin was bringing marijuana to Grandmother’s house.
In the report for the next six-month review, the Department reported N.J. had moved in with her grandparents. The group home at which M.L. was placed was closing, and M.L.’s placement was changed to a foster care home. M.L. was having weekend overnight visits, every other weekend, with her grandparents. The discharge report from the group home recommended M.L.’s overnight visits with her grandparents be “carefully monitored, as [M.L.’s] behavior escalates around the weekends she has visits. There have been many concerning statements [M.L.] has made to staff and other children that indicate she is unsupervised and not well cared for while at her grandparents.”
The report for the January 2017 review indicates both M.L. and her sister were placed in a group home. While at the grandparents’ home, M.L.’s “hair was burned to the scalp” after she and her sister were “using an aerosol can and a lighter.” During another visit, she and her sister snuck out of the grandparents’ home and “ended up on the roof of the college building,” after which M.L. jumped down and walked home by herself at 1:00 a.m. Grandfather told the social worker “it was not happening in his home,” and “the family” reported that M.L. “exaggerates.” There were also reports of unsupervised visits with Mother, which Grandmother denied. And, there were reports of the grandparents being intoxicated around M.L. at a family camping trip. Grandmother denied this, explaining “they were drinking Mike’s Hard Lemonade . . . and that she would not be able to get intoxicated off of those.” There was also an allegation that Mother and the grandparents were emotionally and physically abusing M.L.’s younger cousins. M.L. told the social worker “that when these events occur it triggers her feelings/memories of past abuse by her family.”
The report also indicated M.L. and her grandparents started family therapy, but that Grandfather “continued to express feeling frustrated/angry” with the Department, M.L.’s attorney, and others involved in the case, “which seemed to put undue stress on [M.L.]. It was also reported that [Grandfather] was not able to be redirected and therefore family therapy did not appear to be productive at this time.” M.L.’s attorney reported to the court that M.L. “does not want visits with the grandfather at this time.” The court ordered visitation with grandparents reduced to a minimum of two hours per week, “to be potentially expanded.”
Two months later, the grandparents requested an overnight visit with M.L. for a family reunion. The Department opposed the request, noting that “[w]e’ve actually had to go back to supervised visits based on different problems that we’ve had.” M.L.’s attorney informed the court M.L. wanted to attend the reunion, but her attorney did not feel it was in her best interests. The juvenile court allowed M.L. to attend the reunion, but only as a “limited day visit” and ordering the “de facto parent isn’t to consume alcohol, there’s to be no yelling and screaming.”
In July 2017, the Department moved to terminate the grandparents’ de facto parent status, and the court heard the motion along with the next six-month review. In its moving papers, the Department asserted “[d]e facto status was granted to the grandparents, as they both provided not only a supportive role, but they were serving on a day-to-day basis the role of the parent. The permanency goal at that time was to return [M.L] and [N.J.] to their care. Although this may still be the Court Ordered Permanency goal, over time, this goal seems to have evaporated. [M.L.] is ambivalent, at best, that she no longer wishes to live or reunite with [Grandfather] or [Grandmother], and [M.L.]’s needs are being administered out of the realm of the [d]e facto grandparents.”
M.L.’s attorney also filed a memorandum of points and authorities in support of termination of the grandparents’ de facto parent status.
At the hearing, the court indicated it had considered the report and recommendation of the Department regarding their request for termination of de facto parent status, the points and authorities filed by M.L.’s attorney in support of termination of de facto status, and took judicial notice of the entire court file regarding M.L. The court also admitted two documents submitted by Grandfather. Mother indicated her support of termination of de facto parent status as to Grandfather, but not Grandmother.
The juvenile court found “that although there’s still something of a bond between [M.L.] and both the grandparents, that bond is not as close as it was when the de facto parent status was granted back in 2013. It may be closer with [G]randmother than with [G]randfather currently, but it’s not as close as it was back when she was seven or eight years old as opposed to being 12 years old. [¶] That’s a tremendous passage of time in the course of a young minor. [¶] With respect to whether the de facto parents have significant and unique information they can offer the court, the court doesn’t find that to be the case. There hasn’t been any unique or significant information presented by the grandparents that would help the court in trying to resolve this case that others have not been able to provide. [¶] And that may have been the case awhile back, but it’s not the case anymore as to either of the grandparents. We get into more argument about grandparent visitation than we do about providing information to assist the court in figuring out what’s best for the minor. [¶] Moreover, it’s also the case that the grandparents are no longer being considered as placement with respect to [M.L.]. And that is significant for the court. That has [gone] off the radar at this point in time. [¶] And based upon all the three factors together the court does grant the petition to terminate the de facto as to both grandparents.”
DISCUSSION
Both Grandfather and Grandmother raise the same issue: whether the juvenile court abused its discretion in terminating their de facto parent status.
“ ‘ “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.’ ([Cal. Rules of Court, r]ule 5.502(10).) A person seeking de facto parent status is required to file a written request and show by a preponderance of the evidence that he or she qualifies as a de facto parent. [Citation.] Whether a person qualifies as a de facto parent ‘depends strongly on the particular individual seeking such status and the unique circumstances of the case,’ and should ordinarily be liberally granted because the court ‘can only benefit from having all relevant information’ concerning the best interests of the child. [Citation.] Relevant factors the court should consider in determining whether to grant a de facto parent request include 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, whether the adult possesses information about the child that other participants do not possess, whether the adult has regularly attended juvenile court hearings, and whether a future proceeding may result in an order permanently foreclosing any future contact with the adult.” (In re A.F. (2014) 227 Cal.App.4th 692, 699–700.)
“De facto parents have significant procedural rights in dependency proceedings, including (1) the right to be present at hearings, (2) the right to be represented by retained counsel, and in the discretion of the court, appointed counsel, and (3) the right to present evidence and be heard. . . . By exercising their procedural rights to appear, participate, and present evidence, de facto parents may ‘ “assert and protect their own interest in the companionship, care, custody and management of the child,” ’ and ‘ “ensure that all legitimate views, evidence, and interests are considered”. . . .’ ” (In re A.F., supra, 227 Cal.App.4th at pp. 700–701, italics omitted.)
“Once granted, a person’s de facto parent status ‘ends only when the dependency is terminated or a changed circumstance no longer supports the status.’ [Citation.] In order to terminate a person’s de facto parent status before the dependency jurisdiction has terminated, the social services agency must file a noticed motion and show by a preponderance of the evidence that changed circumstances warrant terminating the person’s de facto parent status.” (In re A.F., supra, 227 Cal.App.4th at p. 700.)
An order terminating an individual’s de facto parent status is reviewed for abuse of discretion. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) “In most cases, the juvenile court will not abuse its discretion if substantial evidence supports its underlying factual findings.” (In re D.R. (2010) 185 Cal.App.4th 852, 863.)
Grandfather asserts the Department “failed to produce any evidence showing a change of circumstances justifying the termination of de facto parent status.” Grandmother similarly claims the Department did not meet its burden of establishing a change in circumstances.
Both grandparents rely on In re Patricia L. (1992) 9 Cal.App.4th 61 in support of their claim that the Department failed to demonstrate changed circumstances. In that case, the minor was removed from her mother shortly after birth and placed with her grandmother for the first three years of her life. During that time, the court granted the grandmother de facto parent status. (Id. at pp. 64–65.) When the minor was three years old, the court returned her to her mother’s custody. (Id. at p. 65.) After 10 months, the court ordered the minor removed from her mother’s custody and placed with her maternal aunt. (Ibid.) That placement lasted only seven months, after the aunt requested the minor be removed from her custody due to verbal abuse by the mother. (Ibid.) The grandmother attended that hearing, and requested that “her de facto parent status be reasserted.” (Ibid.) The court “retroactively terminated the [de facto parent] status” to the date when the minor was returned to her mother, concluding “ ‘the de facto parent’s status [was] necessarily altered by operation of law’ ” when the minor was returned to her mother. (Ibid.)
On appeal, the Department conceded the reasons given by the juvenile court for terminating de facto parent status were “not legally correct,” but maintained that substantial evidence nevertheless supported the ruling. (In re Patricia L., supra, 9 Cal.App.4th at pp. 65–66.) The Court of Appeal concluded otherwise, noting there was “no evidence showing the psychological bond between [grandmother and the minor] had ended or that [grandmother] was no longer deeply concerned about [minor’s] welfare.” (Id. at p. 68.) The court also noted there was a “ ‘critical factual discrepancy’ ” about whether grandmother had contact with the minor, and the nature of that contact, since she was returned to her mother. (Ibid.)
Patricia L. does not aid grandparents. In contrast to the circumstances in Patricia L., there was no “ ‘critical factual discrepancy’ ” about the extent of the grandparents’ contacts with M.L. (In re Patricia L., supra, 9 Cal.App.4th at p. 68.) It was undisputed that M.L. had not resided with either grandparent since 2012, when she was removed from her grandparents’ home at the initiation of this dependency proceeding. The amount of visitation the grandparents had with M.L. had decreased and varied over time, from twice-monthly overnight visits to supervised two-hour weekly visits, due to various problems with the visits. There was no evidence showing Grandfather or Grandmother had “assumed the role of parent on a day-to-day basis for a substantial period” of time. (See In re A.F., supra, 227 Cal.App.4th at p. 700.)
The grandparents claim that because the court found a bond still existed, their de facto parent status must be maintained. Grandmother asserts “there is no requirement that the psychological bond between a de facto parent and the child must be ‘deep.’ ” To the contrary, the bond required for de facto parent status is the psychological bond between a parent and child. “[T]he key to the privileged status of de facto parenthood is adherence to ‘the role of parent,’ both physical and psychological.” (In re Kieshia E. (1993) 6 Cal.4th 68, 78; see In re Brittany K., supra, 127 Cal.App.4th at p. 1514 [termination of de facto parent status affirmed where grandmother “no longer serves as a psychological parent to the minors.”].) Although Grandmother and Grandfather each still have a bond with M.L., substantial evidence supports the court’s finding that the bond had changed and weakened in the five years since the court initially granted them de facto parent status.
The juvenile court also found the grandparents were no longer providing unique information to the court about M.L. The court specifically found “There hasn’t been any unique or significant information presented by the grandparents that would help the court in trying to resolve this case that others have not been able to provide.” Grandmother does not dispute the accuracy of that finding, but asserts it was not her “burden to prove she had unique information to offer about [M.L.] that could be of assistance to the court; the burden was on the [Department.]” She asserts the Department “may have been derelict in failing to properly interview” her about information she could offer. Both grandparents were represented by counsel, were provided notice of hearings, and assert they appeared at the majority of them. The grandparents’ failure to provide unique or significant information to the juvenile court demonstrates a change in circumstances from when they were initially declared to be de facto parents.
Lastly, the grandparents dispute the juvenile court’s finding that “the grandparents are no longer being considered as placement with respect to [M.L.]” Grandmother claims no substantial evidence supports that finding. Grandfather acknowledges “the Agency’s recommendation that placement with the grandparents [was] no longer . . . the permanent plan for [M.L.],” but asserts “the possibility of placement with the grandparents is certainly not foreclosed.”
Although the earlier plan had been placement with the grandparents, the most recent status review report, which the court admitted into evidence at the hearing, indicated the permanent plan was placement “with a fit [and] willing relative, and a specific goal of legal guardianship.” The grandparents were initially the guardians of both girls. When the dependency proceeding was initiated, both were removed from grandparents’ care. Over the course of five years, M.L. was moved to different placements, but none were with grandparents. At the time of the hearing, grandparents’ visits with M.L. were supervised. As counsel for the Department indicated at the hearing, “[t]he trajectory in this case has gone south. That’s clear. That’s the changed circumstances.”
The juvenile court’s findings were supported by substantial evidence. The court did not abuse its discretion in terminating the de facto parent status of both Grandfather and Grandmother.
DISPOSITION
The order terminating de facto parent status as to Grandfather and Grandmother is affirmed.





_________________________
Banke, J.


We concur:


_________________________
Humes, P.J.


_________________________
Dondero, J.