Opinion
NOT TO BE PUBLISHED
Super. Ct. No. J33616
HULL, J.L.M., former foster mother of minor K.T., appeals from an order of the juvenile court denying her request for de facto parent status. We affirm the judgment.
Facts and Proceedings
Events prior to the dependency
K.T., born in August 2003, is the offspring of a chronically homeless, drug-addicted, mentally disturbed biological mother, D.T., and a biological father who has played no part in K.T.’s life. After conceiving K.T., D.T. became romantically involved with the son of L.M. and L.M.’s then-husband T.M., a police detective for the City of Chico. The couple lived with L.M. and T.M. until K.T. was four months old, then moved out, leaving him behind. D.T. gave L.M. a signed paper authorizing her to care for K.T., whom L.M. and T.M. thought of as a grandson, but no dependency or adoption proceedings were initiated at that time. (L.M.’s and T.M.’s son, who never held himself out as K.T.’s father, subsequently left D.T.)
From August 2006 to September 2007, Butte County Children’s Services, a division of the county’s Department of Employment and Social Services (the department), repeatedly received reports that D.T. was picking up K.T., disappearing with him, and either taking him along on her wanderings or leaving him with random persons.
On September 13, 2007, after L.M. had filed a missing person’s report, Chico police found D.T. and K.T. in a filthy sleeping bag on the floor of an apartment complex laundry room. The police detained K.T.
The dependency
On September 17, 2007, the department filed a petition in juvenile court to open a dependency proceeding under Welfare and Institutions Code section 300, subdivision (b). (Unspecified statutory references that follow are to the Welfare and Institutions Code.)
On September 18, 2007, the juvenile court ordered K.T. detained.
On October 2, 2007, the juvenile court sustained the section 300 petition.
The department’s disposition report, filed on October 26, 2007, recommended reunification services for D.T., even though she said she did not want services and hoped K.T. would be placed in a permanent plan of adoption with L.M. and T.M. L.M., who currently supervised D.T.’s visitation with K.T., reported that D.T. dropped by about once a week; wanting to stay on good terms with her, L.M. felt it would be hard to have a set schedule for visitation.
At the dispositional hearing on November 29, 2007, the juvenile court adjudged K.T. a dependent of the court, placed him with L.M. and T.M., and ordered reunification services for D.T.
The department’s six-month status review report, filed March 20, 2008, recommended continuing the existing orders and giving D.T. six more months of reunification services. The report noted that although K.T. was generally doing well in L.M.’s and T.M.’s care, he would have “major tantrums and [do] fantasy play” whenever D.T. showed up unexpectedly, which L.M. and T.M. had “struggled” to stop her from doing. Her “sporadic” visits could last minutes or hours, depending on her state of mind. Recently she had been confrontational and combative toward the social worker and had shouted accusations against L.M. in K.T.’s presence. Children’s Services had advised L.M. and T.M. that visitation must be supervised from now on; it would arrange such visitation once D.T. began substance abuse and mental health treatment.
A concurrent planning report filed March 24, 2008, noted that L.M. and T.M. had been provided an application for adoption.
At the six-month status review hearing on March 27, 2008, the juvenile court continued the existing orders and extended D.T.’s reunification services for six months, with visitation to be supervised by Children’s Services.
The section 387 petition
On April 25, 2008, the department filed a supplemental petition for more restrictive placement (§ 387). The petition alleged: (1) K.T. had witnessed at least one incident of domestic violence between L.M. and T.M., wherein T.M. grabbed L.M. and banged her head against a wall. (2) There had been at least three incidents of domestic violence in L.M.’s and T.M.’s home in the last eight weeks. (3) Prior to the six-month status review hearing, L.M. had allowed unauthorized contact between K.T. and D.T. at L.M.’s and T.M.’s home.
The department’s detention report, filed April 28, 2008, further alleged that L.M. had a restraining order against T.M. (now out of the family home), was pressing criminal charges against him, and wanted K.T. to act as a witness. The department was “concerned about [L.M.]’s emotional state[,] as she is consumed with the allegations of domestic violence against her husband.” K.T. admitted seeing and being scared by an incident of domestic violence.
The report also noted the department’s “concerns over [L.M.]’s lack of boundaries with [D.T.].” L.M. had allowed unauthorized contact between D.T. and K.T. against the department’s advice. Furthermore, L.M. had said “she did not want trouble with [D.T.] and didn’t know how to keep her from seeing [K.T.].”
Because L.M.’s home was “unsafe and unstable at this time” and K.T. could not be returned to D.T., the department recommended placing him in a certified foster family home.
On April 28, 2008, the juvenile court ordered K.T. to be placed with a different foster family.
L.M.’s request for de facto parent status and subsequent proceedings
On May 2, 2008, L.M. filed a request for de facto parent status with the juvenile court. She stated: K.T. lived with her and she had responsibility for his day-to-day care half-time from August 25, 2003 to September 12, 2007, and full-time from September 13, 2007 to April 23, 2008. Except for day care, he spent all his time with her or her extended family, including great-grandparents, aunts, uncles, and cousins, who all lived in the area. Almost all of them, plus numerous friends and neighbors, signed an attached petition in support of L.M.’s request. As his life-long primary caregiver, she knew him and loved him like a mother. She had agreed to D.T.’s request to take him in permanently, but D.T. could not stick to her decision.
K.T.’s removal from her custody “shocked” her because she had “taken care of the problem,” the social workers and adoption case worker said she had done the right thing, and K.T. had been “making phenomenal progress in all areas” since T.M. left the home. She and her extended family members hoped K.T. could return, but if not they wanted to support him in his life with his new foster family.
On May 22, 2008, at a jurisdictional hearing, the juvenile court sustained the section 387 petition and set the matter for dispositional hearing on June 19, 2008. The court deferred ruling on L.M.’s de facto parent status request.
The department’s dispositional report recommended continuing the status quo, including K.T.’s current placement with a certified foster family. The report noted that the original placement after K.T.’s removal from L.M.’s home had not worked out and K.T. had been moved to a second foster family, which was meeting his needs.
At the June 19, 2008, dispositional hearing, the juvenile court sustained the section 387 petition, adopted the recommended findings and orders, and set a 12-month permanency hearing for September 11, 2008. Agreeing with the department that L.M.’s request for de facto parent status was premature because D.T. was still in a reunification plan, the court trailed the request to the permanency hearing.
On August 13, 2008, L.M. refiled her request for de facto parent status in the form of a section 388 request to change court order.
On August 19, 2008, the department filed a concurrent planning report for the permanency hearing, stating that K.T. had adjusted well to his current placement and the foster parents wanted to adopt him.
On September 3, 2008, the department filed a 12-month status review report recommending that the juvenile court terminate D.T.’s reunification services and set a section 366.26 hearing. The report did not address L.M.’s request for de facto parent status. The report repeated that K.T. had adjusted well to his current placement, but observed that he had “attachment issues”; he also had night terrors, which worsened after visits from D.T. (which his foster parents wanted to decrease). Though generally healthy and developmentally on target, he had severe tooth decay. He had not required psychological counseling up to now, but this would be reevaluated. D.T. was still homeless, unemployed, and noncompliant with services, and her behavior remained “unstable and aggressive.” Her supervised visits with K.T., though regular, were poor in quality, and the department recommended decreasing them.
On September 4, 2008, the parties stipulated that L.M. could visit K.T. twice a month for an hour at a time, supervised at first by the department and later by the foster parents. L.M.’s section 388 petition was taken off calendar without prejudice.
At the 12-month review hearing on October 2, 2008, the juvenile court terminated D.T.’s reunification services and set a section 366.26 hearing for January 29, 2009.
The department’s adoption assessment report, filed on January 12, 2009, recommended that the juvenile court terminate the biological parents’ rights and order a permanent plan of adoption, with the current foster parents as the likely adoptive parents. The report stated that K.T. was happy in his present placement, looked to his foster parents to meet his needs, and sought reassurance that he would not be moved again. The needed dental work had been done.
The department’s selection and implementation report, filed on January 15, 2009, concurred in these recommendations. The report observed that L.M.’s contact with K.T.--which consisted of attending his soccer games--had continued informally, monitored by the foster parents.
On January 26, 2009, L.M. renewed her request for de facto parent status by way of a noticed motion. She argued she qualified as a de facto parent under case law and the applicable rules of court, and did not need to show (as section 388 would require) that the proposed order was in K.T.’s best interest. In an attached declaration, she stated that she had previously “assumed, on a day-to-day basis, the role of parent, fulfilling both [K.T.]’s physical and psychological needs for care and affection, and assumed that role for a substantial period.” (Cf. Cal. Rules of Court, rule 5.502(10).)
On January 29, 2009, before conducting the section 366.26 hearing, the juvenile court considered L.M.’s request addressing both the section 388 petition and the motion. The department’s counsel opposed the request on behalf of Children’s Services and the state adoption agency, asserting that L.M. had not at all times met K.T.’s physical and psychological needs, a sine qua non for de facto parent status (Cal. Rules of Court, rule 5.502(10)): she had not treated his severe tooth decay or shielded him from the emotional impact of domestic violence in her home. In response to the first point, mother’s counsel noted there had been a section 300 case going on for six months before K.T. was placed with the current foster parents; counsel also asserted the department’s arguments were not evidence.
The department’s counsel argued that K.T. was “at a fragile place with the foster parents.” Whenever D.T. visited him she would remind him of the domestic violence at L.M.’s home and other past traumas. Therefore, “to appoint a person from whom the child previously was removed as a de facto parent sends the wrong message both to the foster parents and also to [K.T.].”
Finally, counsel asserted that since K.T. had been out of L.M.’s care for seven months, she could not provide the juvenile court any current information the court did not already have.
K.T.’s counsel agreed that the court should deny L.M.’s request due to the emotional abuse K.T. suffered from domestic violence in her home.
The juvenile court denied L.M.’s request, finding: “There has not been an adequate showing that [L.M.] has fulfilled the physical and psychological needs of this child.”
Discussion
L.M. contends the juvenile court “may have” abused its discretion by applying the wrong legal standard to her request for de facto parent status. We disagree.
“‘The concept of de facto parent has been 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.’ [Citation.] ‘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.” [Citation.]’ [Citation.]” (In re R.J. (2008) 164 Cal.App.4th 219, 223.)
“‘“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, rule 5.502(10).) ‘On a sufficient showing the court may recognize the child’s 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....’ (Cal. Rules of Court, rule 5.534(e)).” (In re R.J., supra, 164 Cal.App.4th at p. 223.)
“A determination of whether or not a person qualifies as a de facto parent is a fact-based assessment, and ‘[t]he decision to grant de facto parent status depends on an assessment of the particular individual and the facts of the case.’ [Citation.] Factors courts generally consider in making this assessment include (1) whether the minor is psychologically bonded to the adult; (2) whether the adult has assumed the role of a parent on a day-to-day basis for a substantial period of time; (3) whether the adult possesses information about the minor [not possessed by] other participants in the process; (4) whether the adult has regularly attended juvenile court hearings; and (5) whether any proceeding may result in an order permanently foreclosing any future contact between the adult and the child. [Citation.]” (In reR.J., supra, 164 Cal.App.4th at p. 223.)
The juvenile court applies the preponderance of the evidence standard in making factual findings on a request for de facto parent status, and we review those findings for abuse of discretion, i.e., a determination which is arbitrary, capricious, or patently absurd. (In re R.J., supra, 164 Cal.App.4th at p. 225; In re Leticia S. (2001) 92 Cal.App.4th 378, 381.) If substantial evidence supports the court’s determination to deny de facto parent status, it does not abuse its discretion by doing so. (In re Jacob E. (2004) 121 Cal.App.4th 909, 919.)
The court’s determination here was not arbitrary, capricious, or patently absurd, because substantial evidence supported it. “‘[W]hen a nonparent caretaker commits “a substantial harm” to the child, a harm that is fundamentally at odds with the role of a parent, that person’s protectable interest in dispositional decisions is extinguished, including whatever right [she] might otherwise have had to de facto parent status.’ [Citations.]” (In re Merrick V. (2004) 122 Cal.App.4th 235, 257.) No matter how long a nonparent cared for a child, if she acted contrary to the role of a parent at any time during that period, she failed to fulfill the child’s needs and does not merit de facto parent status. (In re Jacob E., supra, 121 Cal.App.4th at p. 920.) In particular, if an applicant’s misconduct caused the child’s dependency, the juvenile court may properly deny de facto parent status. (Merrick V., supra, at p. 257.)
Here, although L.M.’s misconduct did not directly cause K.T.’s dependency, it did cause his removal from her custody under section 387 and threatened to stymie or reverse the progress he had made since the dependency began. Arguably, moreover, even if L.M.’s utter failure to deal with D.T.’s deranged conduct in the year before the dependency began did not cause the dependency, it contributed greatly to the need for the dependency. By failing to fulfill K.T.’s physical needs (i.e., to secure treatment for his severe tooth decay) and psychological needs (i.e., to protect him from the emotional impact of domestic violence in her home and the emotional bludgeoning of D.T.’s visits), she acted contrary to the role of a parent and caused him “a substantial harm.” (In re Merrick V., supra, 122 Cal.App.4th at p. 257.)
L.M. asserts that there is no evidence her misconduct harmed K.T. That is not correct. As she admits, the section 387 disposition report stated that K.T.’s severe cavities required extensive dental work, which he was only then receiving (two months after removal from L.M.’s home). That condition had to have developed and gone untreated while he was in her custody. Furthermore, the section 387 detention report stated that K.T. had seen and been frightened by one of the admitted domestic violence incidents in L.M.’s home; it also stated that L.M. was so “consumed” by her wish to press charges against T.M. that she wanted the four-year-old K.T. to testify as a witness, apparently oblivious to the emotional strain this would cause him. Finally, the detention report contained L.M.’s admission that “she did not want trouble with [D.T.] and didn’t know how to keep her from seeing [K.T.],” even after D.T.’s incursions into K.T.’s life had already caused him significant emotional harm over a long period. To let D.T. go on harming K.T. this way out of a fear of “trouble” was to act contrary to the role of a parent.
The juvenile court’s ruling was well within its discretion.
Disposition
The judgment (order denying de facto parent status) is affirmed.
We concur: BLEASE, Acting P. J., ROBIE, J.