Opinion
B192166
4-23-2007
In re ANGEL V. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. LOUIS S. et al., Defendants and Appellants.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendants and Appellants. Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
P.L. (Mother) is the mother of four children, Angel V. (born September 1998), Athena V. (born June 2002), Vanessa V. and Sabrina V. (both born February 2004). All four children were detained by the Department of Children and Family Services (Department) in November 2004 after Mother was taken into custody by police on a domestic violence charge. The children were initially placed in a foster home. The Department filed a petition on November 17, 2004, pursuant to Welfare and Institutions Code section 300 alleging that there was a history of domestic violence between Mother and her boyfriend, Shawn S. An amended petition alleged substance abuse, domestic violence, and gang membership by Father, in addition to the initial allegations. At an arraignment, the children were placed in the home of their paternal grandmother, Eva R., and her boyfriend Louis S. (collectively referred to as Grandparents). Father was on parole and living with Grandparents. Mother was given monitored visitation and ordered not to have any contact with Shawn S. The amended petition was sustained on January 13, 2005.
The father of the children is also named Angel V., hereinafter referred to as Father. Neither he nor Mother is a party to this appeal.
All other statutory references are to the Welfare and Institutions Code.
Louis is not related to the children by blood or marriage.
For the next 16 months, the children lived with Grandparents. On May 1, 2006, Grandparents filed a request for de facto parent status. On May 30, 2006, after determining that Grandparents were interfering with the reunification process, the Department moved the children into the home of their maternal aunt, Virginia. On June 19, after a hearing on Grandparents petition, the court denied their request. Grandparents appeal from that order. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
From the time the children were placed into Grandparents home, a pattern soon developed. Although the social workers generally reported that the children were well cared for, they also noted that Mother and Grandparents engaged in an ongoing battle of competing accusations. Often, their arguments were witnessed by the children. The social workers also documented Grandparents increasing hostility toward the Department. It is with this background that we outline some, but not all, of the details of the strained relationship.
The first social worker assigned to the case, Florence Escalante, noted the problems between Mother and Grandparents. During her initial home visit in January 2005, Grandparents blamed Mother for blisters Athena had developed around her mouth. Grandparents later claimed they took Athena to the doctor, and the doctor informed them that the blisters were caused by the herpes virus. When told about Athenas blisters, Mother opined that they were caused by Evas dirty home.
On March 3, 2005, Louis told Escalante that Mother arrived late for her visit, and she was rude to Grandparents and cursed at them. When Escalante spoke to Mother about the incident, she said Grandparents were the ones who cursed at her. On March 10, Escalante went to Grandparents home to monitor Mothers visit. The visit was going well until Angel came home from school. Escalante sensed tension. At the end of the visit, she told Mother and Grandparents that they would probably always disagree on issues regarding the children and suggested that they not discuss the case. At this point, Mother and Eva began arguing. Escalante told them that if this happened during visits again, she would move the visits to her office.
On March 22, 2005, Mother told Escalante that during a visit, she began arguing with Eva, and Eva told her to leave and to never come back. Louis, who was outside fixing the car, told Mother not to pay attention to Eva. When Escalante spoke to Louis by telephone that day, Louis stated that he was outside working on his car during the visit when he heard yelling. He saw Mother and thought she looked "high." Angel became hysterical and ran to his room because he was scared. Louis said Mother cursed at them. Escalante told Mother not to contact Grandparents until the visitation problem was settled.
On March 30, Escalante told Louis that Mother had a right to visit the children and that she could set it up so that the visits could be monitored by a case aide in the Department office. Louis said he would not drive all the way to Los Angeles and insisted that the visits occur closer to his home. Escalante agreed to monitor the visit herself at a nearby McDonalds.
When Escalante told Mother about this arrangement, she asked if the visit could take place at a park which was closer to the bus stop. When Louis was asked about this request, he said he did not think it was a good idea and wanted to talk to Escalantes supervisor. Escalantes supervisor, Pilar, spoke with Louis by phone a few days later. She told him the same things Escalante had: that Mother was entitled to visit; that the case could not be transferred; and that it would be difficult to send a staff member to monitor the visit near Louiss home. Louis said he did not have a car, which is why he wanted the visit to be at McDonalds, and offered to monitor the visit himself.
Escalante visited Angel in school and he told her that during the March visit, there was yelling and that Mother was cursing. He said his paternal aunt was also yelling at Mother. He confirmed that Louis was outside fixing his car and that Louis came in to tell them to stop yelling. He said Mother did not curse or yell when he was living with her, and that Grandparents yelled "`once in a while."
Mother told Escalante that Angel was being coached by Grandparents and that he was being taught to lie.
At the visit which took place at McDonalds, Grandparents brought the children by car and stayed during the visit. Mother behaved appropriately. Mother became upset when Eva took a picture and said she was going to send it to Father, who was in jail. However, Mother did not express her feelings to Eva.
The report Escalante prepared in July 2005 stated that the children were developmentally age-appropriate. Angel, however, was having difficulties in school and not achieving at grade level. The court had ordered individual therapy for Angel in January 2005, and the social worker had given referrals to Grandparents but due to a number of difficulties, Angel was not receiving any services. The report indicates a number of visits occurred in May and June of 2005 but several were missed due to the illness of all of the parties. Grandparents and Mother raised a number of complaints about each other to Escalante. Grandparents complained that Mother did not take care of one of the children and that she was talking to her abusive ex-boyfriend, Shawn, at the bus stop near the visitation site. Mother claimed that Grandparents were coaching the children to tell lies and were making racially prejudiced statements in front of them. Despite the conflicts, Escalante reported that during her monthly visits, the children "appear to be happy [and] well-adjusted."
Escalantes August 2005 report raised more issues about Shawn. Angel told the social worker that his mother had been with Shawn three times at the visit site and once they were hugging. When Escalante questioned Grandparents, they first refused to answer. Eva said, "`Why should I talk with you? Youre not my lawyer." When Escalante told them she needed the information for her report to the court, Grandparents said they saw a Black man on three occasions, and Angel had identified the man as Mothers ex-boyfriend.
In a report prepared by social worker James Yokoyama filed with the court on September 23, 2005, Mother requested a change of visitation days due to her new job. Bus passes were provided for Grandparents. On August 31, 2005, Mother visited and it appeared she was behaving appropriately. Grandparents told Yokoyama that Mother should not kiss the children because this had caused them to develop blisters on their mouths which a doctor said were due to herpes. Mother told Yokoyama that she felt the children were treating her with disrespect and raised concerns about Evas past. Angel told Mother that Evas children had been taken away from her.
On September 12, 2005, Yokoyama was interviewing Athena when Eva intervened and told Yokoyama that he was not allowed to speak to the child alone. Eva claimed she had been told that by their lawyer. At that point, Louis came in and reiterated that Yokoyama was not supposed to be speaking to Athena alone. Louis brought up the issue of Mother having herpes. When Yokoyama asked for proof that a doctor treated the children for herpes, Grandparents were unable to furnish the requested information.
Mother called Yokoyama on September 13, 2005, to complain that Eva would not let her speak with Angel. Eva told Mother that the court had ordered that Mother not speak to Angel and hung up the phone. Mother said on September 14, after the monitored visit, Louis drove past Mother and yelled "`Fucking bitch" and "`Nigger lover," and that a security guard observed the incident. Louis said this with Angel in the car. The security guard told Yokoyama that Louis did drive around several times, but he did not know what he said other than what Mother had reported to him. Louis approached the guard and told him that Mother was "`trouble" and "`[was] not a good person." Louis asked if there were any cameras inside the visiting room because he did not trust Mother. While speaking with the guard, Louis used a racial slur, in Spanish, referring to an African-American.
In October 2005, the case was assigned to a new social worker, Linda Brawley. Her status review report dated January 17, 2006, indicated that she got conflicting information from Mother and Grandparents, and that "[i]t is apparent that the conflicts between Mother and [Louis] have occurred extensively since the children have been in [Grandparents] care." Brawley attempted to schedule a family group meeting, but was unsuccessful. Brawley hoped such a meeting would help resolve the conflicts.
In a report prepared in February 2006, Brawley stated that Mother was sporadically attending therapy, responding to counseling, and was working full time. She also reported that "[t]here continues to be a lot of conflict between Mother and Paternal Grandmother and Paternal Grandmothers boyfriend. However, [after the family group decision making meeting on January 7, 2006,] the maternal relatives have helped with facilitating the communication between Paternal Grandmother and Mother." Brawley concluded: "The children have been observed to be content in the care of [Grandparents]."
At a hearing on March 24, 2006, Mother was granted unmonitored visits. On May 1, 2006, Grandparents filed a "De Facto Parent Request."
Social worker Beverly Tomlinson prepared a report for the May 2006 court hearing stating that the conflicts between Mother and Grandparents continued even though Tomlinson had requested that they refrain from speaking negatively about each other. Tomlinson concluded that Grandparents "appear to have created [an] invisible barrier to the reunification process." Grandparents were hostile towards Tomlinson and refused to answer her questions, stating they wanted a new social worker who was not on Mothers side. They also refused to allow Tomlinson to visit and speak with the children. Tomlinson wrote that Eva created a "threatening environment making it difficult for [the social worker] to properly service and assess the children in her home." As a result, the children were removed from the home of Grandparents on May 30, 2006, and placed with a maternal aunt.
In a report prepared by Tomlinson for the June 2, 2006 18-month review hearing, she indicated that Eva had "created unreasonable artificial obstacles in mothers attempts for reunification with the children." The children were excited about the move and stated they loved their aunt. The social workers report stated: "The maternal aunt and uncle informed the department that they have been in the lives of the children since birth; that they would comply with the department to facilitate reunification with mother and the children and make the children available to the DCFS. Further, they are willing to provide the children with a permanent plan of adoption, should mother fail to reunify with the children. [¶] It is highly recommended that the children be replaced with a more impartial relative that will allow DCFS and mother full access to the children, that mother be given six more months of reunification . . . ."
At the hearing on Grandparents de facto parent petition held on June 19, 2006, the court stated initially that it was inclined "to find that [Grandparents] probably qualify as de facto parents under the law describing de facto parents." However, after argument by counsel, it concluded: "You know, I think its a very close case in terms of whether they are or not de facto parents. Im not sure that it would be a great use to the court to have them declared de facto. Im going to deny the request. The whole idea of having de facto parents is to provide information we might otherwise not know. I think that these children are fairly well-documented in terms of whats been going with them. And I dont see the need to make you official de facto parents. Of course, you are always going to be Grandparents and Dad is always going to be in the picture or a party to these proceedings. Im going to deny the application because I think its close and I dont see really a lot of benefit to the court in granting the status and its not because of a concern about [sic] or anything like that. And I dont see the basis."
DISCUSSION
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 parent, fulfilling both the childs physical and psychological needs for care and affection, and who has assumed that role for a substantial period." (Cal. Rules of Court, rule 5.502(10); see also In re Leticia S. (2001) 92 Cal.App.4th 378, 381.) "On a sufficient showing the court may recognize the childs present or previous custodians as de facto parents and grant standing to participate as parties in disposition hearings and any hearing thereafter at which the status of the dependent child is at issue. The de facto parent may: [¶] (1) Be present at the hearing; [¶] (2) Be represented by retained counsel or, at the discretion of the court, by appointed counsel; and [¶] (3) Present evidence." (Cal. Rules of Court, rule 5.534(e).)
"The denial of a petition for de facto parent status is reviewed for abuse of discretion. (In re Leticia S., supra, 92 Cal.App.4th at p. 381.) `In most cases, the lower court does not abuse its discretion if substantial evidence supports its determination to grant or deny de facto parent status. (In re Michael R. (1998) 67 Cal.App.4th 150, 156, citing In re Krystle D. (1994) 30 Cal.App.4th 1778, 1809.)" (In re Jacob E. (2004) 121 Cal.App.4th 909, 919.)
"The decision to grant de facto parent status turns on the facts of each case. Although the Supreme Court has not set forth specific guidelines for a juvenile court to apply in determining de facto parent status, courts have generally considered such factors as 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 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 between the adult and the child. [Citations.] (In re Patricia L. (1992) 9 Cal.App.4th 61, 66-67.)" (In re Jacob E., supra, 121 Cal.App.4th at p. 919.) The court may also consider whether the person had caused "substantial harm" to the child. (In re Michael R., supra, 67 Cal.App.4th at p. 155.)
De facto parent status should ordinarily be liberally granted (In re Kiesha E. (1993) 6 Cal.4th 68, 78), however, the party seeking de facto parent status has the burden of proving, by a preponderance of evidence, that he or she falls within the statutory definition. (In re Michael R., supra, 67 Cal.App.4th at p. 155.)
It is undisputed that the children were psychologically bonded to Grandparents. The children lived with them for 18 months, during which time Grandparents assumed a parental role and provided a stable home and loving care. Indeed, prior to the hearing on the petition, the Department consistently concluded that the children were healthy, happy, and, with the exception of Angels behavioral problems, progressing well. And as to Angel, he was steadily improving. Throughout the proceedings, Grandparents regularly attended the dependency court hearings, and given the family acrimony, a future proceeding could result in their losing contact with the children forever.
The court denied Grandparents de facto parent petition because it believed they did not possess information that would be helpful to the court. Where, as here, all of the other factors favor the granting of the petition, we question whether it was enough to deny Grandparents request solely because the bench officer felt that it would not "be a great use to the court to have them declared de facto [parents]." "[W]here a grandparent or other close relative has cared for a dependent child for an extended period of time and has never done anything to cause substantial or serious harm of any kind to that child, there ought to be a very good reason for denying de facto status . . . ." (In re Vincent C. (1997) 53 Cal.App.4th 1347, 1358.)
In reversing the trial courts termination of the appellants de facto parent status, the court in In re Patricia L. (1992) 9 Cal.App.4th 61, 67, stated: "Because a court can only benefit from having all relevant information, a court should liberally grant de facto parent status. If the information presented by the de facto parent is not helpful, the court need not give it much weight in the decisionmaking process." We concur.
The Department argues that because Grandparents were no longer the childrens caretaker, it follows that they could not provide reliable or unique information about the children to the court. While that may be true in certain instances, here the children were removed from Grandparents home a mere three weeks prior to the June 19 hearing on the petition. Initially, the court correctly determined Grandparents qualified as de facto parents. In the face of the long-term care Grandparents provided to the children and the close emotional bonds between them, on this record, the trial courts decision to deny de facto parent status on the stated grounds was an abuse of discretion.
We note the Department has gone to great lengths to list a number of transgressions allegedly committed by Grandparents that it argues undermined the reunification process and made it difficult for the social workers to perform their jobs. The Department also contends the evidence clearly establishes that Grandparents behavior is emotionally damaging to the children. While we are mindful that allegations that Grandparents are harming the children may prove sufficient to deny de facto parent status, the trial court did not make any factual determinations in that regard. There were competing claims of improper conduct on the part of Grandparents and Mother, but at no time did the court resolve the dispute. In fact, it appears the court did not rely on the Departments allegations. After concluding the court would not benefit from the grant of de facto parent status, it stated the decision to deny was "not because of a concern about [sic] or anything like that." While it is not clear what the court was not concerned about, it is evident that the court did not base its ruling on any perceived misconduct on the part of Grandparents.
We state no opinion whether the Departments charge that Grandparents conduct emotionally harmed the children, if proven, would provide a proper basis for denying Grandparents petition. By necessity, an opinion would hinge on the trial courts factual determinations. (In re Michael R., supra, 67 Cal.App.4th at p. 156.)
DISPOSITION
The order denying Grandparents de facto parent status is reversed.
We concur:
WILLHITE, Acting P.J.
MANELLA, J.