Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. J227999 Wilfred J. Schneider, Jr., Judge.
John L. Dodd & Associates and John L. Dodd for Objectors and Appellants.
Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson and Jacqueline Carey-Wilson, Deputy County Counsel, for Plaintiff and Respondent.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Respondent.
OPINION
RICHLI J.
Minor M.L. was abandoned by her mother (Mother) at a hospital under the “safe surrender” provisions of Health and Safety Code section 1255.7. M. was put in the temporary custody of the San Bernardino County Children and Family Services (the Department) and was subsequently placed in the home of S. and M.T. (collectively, the T.’s). Less than two months after M. was born, M.D. (Father) came forward claiming that he was the baby’s biological father and that he wanted custody of her. When paternity tests revealed that he was indeed the biological father, the juvenile court granted Father’s Welfare and Institutions Code section 388 petition requesting he be deemed the presumed father and placed M. in his home. The juvenile court later terminated its jurisdiction, granting sole legal custody to Father.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
The T.’s now essentially claim on appeal that the juvenile court abused its discretion in granting Father’s section 388 petition by finding Father was the presumed father and granting him custody and, in the alternative, request remand for an evidentiary hearing on the section 388 petition.
In response, Father has filed a motion to dismiss the T.’s appeal (which the Department joins) based on the fact that the T.’s have no standing to appeal the granting of Father’s section 388 petition.
We conclude that the T.’s do not have standing to appeal the juvenile court’s order and dismiss the appeal.
I
PROCEDURAL AND FACTUAL BACKGROUND
A. Detention
M. was born in early July 2009. She was surrendered to hospital staff under Health and Safety Code section 1255.7, subdivision (d), by Mother. The Department responded to the hospital. Mother and a man who was thought to be the father were given identification bracelets for M. but destroyed them. Mother instructed the Department that no family member was to see the baby. Mother had tested positive for amphetamines and marijuana at the time of M.’s birth; M. also tested positive for amphetamines. On July 6, 2009, M. was placed with the T.’s.
On July 7, 2009, the Department filed a section 300 petition alleging under subdivision (g) that M. was surrendered at the hospital under Health and Safety Code section 1255.7. On July 8, 2009, the juvenile court found that M. was left without any provision of support (§ 300, subd. (g)) and ordered temporary placement and custody with the Department.
B. Jurisdiction/Disposition
According to the jurisdiction/disposition report filed on July 24, 2009, the Department recommended that the juvenile court find the allegations in the section 300 petition true and find M. should be removed from her unknown parents and maintained in her concurrent planning foster home. On July 9, 2009, N.G. had come to a Department office and reported he was M.’s biological father. No additional information at that time was known as to whether N.G. was the father. N.G. was not the man at the hospital when M. was born. A paternity test was ordered by the juvenile court.
M. was doing well in the T.’s care. The concurrent plan remained adoption by the T.’s. The T.’s were committed to raising M. as their child.
The first addendum to the jurisdiction/disposition report, filed on August 27, 2009, indicated the paternity testing on N.G. had eliminated him as M.’s biological father. The Department recommended that no reunification services be granted and that the section 366.26 hearing be set.
The juvenile court found at the uncontested jurisdiction/disposition hearing conducted on August 31, 2009, that M. came within the meaning of section 300, subdivision (g) and that no reunification services were appropriate under section 361.5, subdivision (B)(9). Although Father had come forward on August 28, the Department did not provide that information to the juvenile court, as will be discussed in further detail, post. The juvenile court approved M.’s placement in a concurrent-planning home, but she remained in the custody of the Department. A section 366.26 hearing was set for December 29, 2009. The Department was to prepare an adoption assessment and section 366.26 report.
C. Nonappearance Review and Interim Review Report
On either September 15 or September 30, 2009, the Department notified the juvenile court that Father had come forward on August 28 claiming that he was M.’s biological father. Since the office was closing, he was told to return on Monday. He and Mother came to the Department’s office on Monday, August 31, 2009. Mother stated that she wanted M. back and that the hospital told her she had one year to decide to take M. back. She had thought that N.G. was the father. When it was determined that N.G. was not the father, she contacted Father on August 28 and informed him that he was the baby’s father. The man at the hospital with her at the time of M.’s birth was her then boyfriend, Chris.
Father was advised by the Department that the 14 days in which to claim a surrendered baby had already passed and that he would need to consult an attorney. Father had asked Mother when he found out she was pregnant if he was the father, but she had told him he was not. Father told the Department that he wanted to obtain custody of M. so that Mother could parent the baby. During the visit to the Department, none of the parties asked about M.’s well-being. Neither Mother nor Father requested visitation.
Father retained counsel, who sent a letter to the Department. Father’s attorney demanded paternity testing for Father and that the section 300 petition be amended to name Father as the presumed father. The Department conducted a voluntary paternity test, and Father was determined to be M.’s biological father.
The Department also reported that M. had developed a strong attachment to the T.’s. She was thriving in their home. The Department received a phone call from Father on September 28, 2009, wherein he requested visitation; his request was denied by the Department.
The Department filed its interim review report recommending that a section 366.26 hearing be held to determine the permanent plan of adoption. The Department was uncertain if Father and Mother could provide care and support for M. It was obvious at the time M. was surrendered that Mother wanted no contact with her, and there had been no contact with her since August 31, 2009.
On October 7, 2009, Father’s attorney sent a letter to the Department requesting immediate custody or visitation.
D. Father’s Section 388 Petition
On October 13, 2009, Father filed his section 388 petition. He requested that he be found to be the presumed father of M. He submitted a declaration with the section 388 petition stating that he and Mother had been sexually intimate from October 2008 to November 3, 2008. She had dated N.G. from September 2008 through the beginning of October 2008. When she found out she was two months pregnant in December 2008, she told Father that she believed N.G. was the father. Mother moved away, and she and Father had no contact until August 28, 2009.
On August 28, 2009, Mother contacted Father and informed him that she had given M. up for adoption and that N.G. was not the father. Father immediately went to the Department. Father claimed he was told by the Department that the 14 days in which to reclaim M. were over and that if he pursued custody, he would be charged with abandonment. Father retained counsel on September 2, 2009.
Father was very “happy” that M. was his daughter and wanted her back. He declared, “I want to love and nurture her for the rest of her life. Although I have never met her I love her with all my heart.” He had two jobs and was attending a trade school to get his HVAC license. He lived with his mother and father, who could assist him in the baby’s care.
The declaration also provided that M. needed to be with her family and needed to know her family history and where she came from. Father had purchased a crib, car seat, stroller, and other items. Keeping M. from her father was hurting both of them. Father requested that he receive reunification services as a nonoffending parent.
The Department submitted a second interim review report on October 28, 2009, wherein it recommended that the Department grant Father’s section 388 petition in part. It recommended that Father be declared M.’s biological father, that he be granted visitation, and that he be given reunification services. In the report, it was noted that Father had not taken any steps to assert his parental rights prior to M.’s birth but rather relied upon Mother’s statements that he was not the father.
On October 20, 2009, Mother had called the Department and requested photographs of M. She was told she could come to the Department to view them, but she never did. On October 26, 2009, Father and his parents came to the Department. When they were shown photographs of M., they all had tears in their eyes.
E. De Facto Parent Request
On November 2, 2009, the T.’s filed their request to be declared de facto parents. The T.’s declared they were with M. every minute of the day. They stated, “We spend quality time giving her lots of love and attention, building a strong family bond. [M.] enjoys going on her daily walks, reading popup books and loves to splash when she’s getting a bath. [¶]... [M.] has been with us since she was four days old, we have seen her grow day by day. She is an alert, active, happy baby. We can distinguish her needs by the sounds of her cries.”
Several letters were attached to the request. The T.’s attorney stated that the T.’s were very committed to M. They were both economically and emotionally capable of taking care of M. Several of their relatives and friends and S.T.’s employer declared the T.’s were committed to the care of M. and would be good parents.
The T.’s submitted a letter wherein they explained that they had been married for 12 years and had attempted to conceive for 10 years, but had failed. They were told when they received M. that the parents had 14 days to come back for her, and it was the “happiest” time of their lives when the time passed. They claimed that Father only wanted M. back in order to have Mother take care of her, and Mother was a drug user. To lose M. at this point would be like experiencing the death of a child.
F. Section 388 Petition Determination and De Facto Parent Request
A hearing was held on November 5, 2009, wherein in all parties were present, including the T.’s and their counsel. The juvenile court stated at the hearing that it was its tentative determination to grant the section 388 petition. It also noted it would likely grant the T.’s de facto parent status. It stated, “[U]nless someone can explain to me otherwise, we have to give the biological father a chance to see if he wants to be a father.” It ordered weekly visitation for Father. Counsel for the T.’s insisted that they would cooperate with the court. Discovery was denied to the T.’s (although granted to Father) because there was not yet a grant of the de facto parent “petition.”
On December 1, 2009, M. was placed in the custody of Father. M. would continue in the custody of Father as long as he remained in his parent’s home. The trial court granted the section 388 petition, finding it was in M.’s best interests to grant the petition. The Department and counsel for minor did not object. The T.’s were granted de facto parent status at the conclusion of the section 388 hearing. No objection to the hearing was made. The juvenile court noted that the decision was breaking the T.’s hearts. The section 366.26 hearing was vacated.
The T.’s submitted a notice of appeal from the November 5, 2009, order granting visitation to Father and the December 1, 2009, ordering M. removed from the T.’s care.
On December 11, 2009, the T.’s filed a request to change the court order. They claimed that although Father was not to come in contact with Mother with M., they had been seen together. The T.’s also requested visitation. On December 28, 2009, the juvenile court filed a written denial, finding that their proposed order did not promote M.’s best interests.
On January 7, 2010, a hearing was conducted to terminate the dependency proceeding. In making its ruling terminating the dependency proceeding, the juvenile court noted that this was a “very sad case.” It found that, notwithstanding “the emotion and love and care that the [T.’s] have given this child, who are strangers to this child, the right thing to do is to return this child to the biological parent. I’m heartened that things have gone well.” The trial court ruled, “Accordingly, the Court will find that [Father] is the presumed father of [M.] The father has completed the case plan, and the welfare and best interest of the child no longer require [c]ourt and [the Department’s] supervision. Conditions no longer exist which justify the initial assumption of jurisdiction and are not likely to exist if supervision is withdrawn.” Father was granted sole legal custody of M., and the juvenile court terminated its jurisdiction.
On December 22, 2009, the T.’s filed a petition for writ of mandate requesting reversal of the removal of M. from their custody and the finding that Father was her presumed father. The petition for writ of mandate was denied by this court on December 31, 2009. The California Supreme Court denied the T.’s petition for review and request for stay on January 6, 2010.
II
STANDING
Father has brought a motion to dismiss the T.’s appeal on the ground that as de facto parents they do not have standing to appeal the finding that Father was a presumed father and the granting of Father’s section 388 petition giving him custody of M. The Department joins Father. Relying almost exclusively on the reasoning in In re Vincent M. (2008) 161 Cal.App.4th 943 (Vincent M.), the T.’s contend they have standing to bring the instant appeal.
In juvenile proceedings, only a party aggrieved by an order has standing to appeal. (In re Harmony B. (2005) 125 Cal.App.4th 831, 837.) “‘Whether one has standing in a particular case generally revolves around the question whether that person has rights that may suffer some injury, actual or threatened.’” (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034.)
“‘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)).”
The Supreme Court first stated in In re B.G. (1974) 11 Cal.3d 679 that “de facto parents... should be permitted to appear as parties in juvenile court proceedings... to assert and protect their own interest in the companionship, care, custody, and management of the child.” (Id. at p. 693, fn. omitted.) In In re Kieshia E. (1993) 6 Cal.4th 68, the court explained that standing is limited by the rationale underlying the de facto parent doctrine itself: “The de facto parenthood doctrine simply recognizes that persons who have provided a child with daily parental concern, affection, and care over substantial time may develop legitimate interests and perspectives, and may also present a custodial alternative, which should not be ignored in a juvenile dependency proceeding. The standing accorded de facto parents has no basis independent of these concerns.” (Id. at pp. 77-78.) A de facto parent status does not give the de facto parent the right to have the minor placed with him or her, nor does it entitle the de facto parent a right to reunification services. (Id. at p. 77 & fn. 7; In re Cynthia C. (1997) 58 Cal.App.4th 1479, 1490-1491 & fn. 11; Clifford S. v. Superior Court (1995) 38 Cal.App.4th 747, 752.) “De facto parents are not equated with biological parents or guardians for purposes of dependency proceedings and standing to participate does not give them all of the rights and preferences accorded such persons.” (In re Rachael C. (1991) 235 Cal.App.3d 1445, 1452, disapproved on other grounds in Kieshia E., at p. 80.)
This court concluded in In re P.L. (2005) 134 Cal.App.4th 1357, 1361 [Fourth District, Div. Two] that a de facto parent did not have standing to appeal a placement decision. In P.L., a newborn baby was placed in the home of the foster mother. A selection and implementation hearing was set when the minor was just over one year old. The child services department began the adoption assessment. (Id. at p. 1359.) Although the foster mother had initially stated she wanted to adopt the baby, she had some concerns. Accordingly, the child services department located new prospective adoptive parents. (Ibid.) The foster mother quickly changed her mind and advised the child services department that she wanted to adopt the baby. At a placement review hearing, the child services department recommended a change in placement to the new prospective adoptive parents, which the juvenile court ordered. The foster mother, who had been granted de facto parent status, appealed. (Id. at pp. 1360-1361.)
This courtreiterated the rights of de facto parents in dependency court: “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. [Citations.] While de facto parents are given an opportunity to participate in the proceedings, that status does not give them the rights accorded to a parent or legal guardian.[Citations.] Consequently, appellant has no legal standing to complain of the decision to place the child with the new prospective couple since she has no right to custody or continued placement as a mere de facto parent. The order changing physical custody was within the sound discretion of the court from which appellant cannot appeal because her legal rights were not impacted.” (In re P.L., supra, 134 Cal.App.4th at p. 1361-1362.)
After P.L., another court, in Vincent M., supra, 161 Cal.App.4th 943, found that a de facto parent who had been approved for adoption did have standing to appeal. In that case, Vincent was declared a dependent of the court based on sustained allegations in a section 300, subdivision (g) petition that the mother was unwilling to provide for the child and had surrendered the baby under the safe surrender law. Vincent’s father was unknown. Reunification services were denied, and a section 366.26 hearing was scheduled with a permanent plan of adoption. Vincent was placed with the B.’s. (Vincent M., at p. 948.) The B.’s were granted de facto parent status. (Ibid.) Several months later, Vincent’s biological father, Jorge, came forward. He filed a section 388 petition requesting that he be declared the presumed father and be granted reunification services. Jorge alleged that he had previously been unaware that mother was pregnant. (Vincent M., at pp. 948-949.) Jorge alleged it was in Vincent’s best interests to be placed with him, because once he became aware of Vincent, he immediately came forward to seek custody. (Id. at p. 949.)
The juvenile court declared Jorge the presumed father and granted his section 388 petition. (Vincent M., supra, 161 Cal.App.4th at p. 949.) The court found that Jorge had come forward as soon as he found out about Vincent, and the court had no choice but to grant him presumed father status without consideration of the child’s best interests. (Id. at p. 949.) Jorge was granted reunification services. (Id. at p. 950.) The B.’s timely appealed from the grant of the section 388 petition. (Vincent M., at p. 950.)
The first issue the Vincent court addressed was Vincent’s and Jorge’s contention that the B.’s lacked standing to appeal the order granting the section 388 petition based on the fact they had no right to custody or placement of Vincent. The appellate court preliminary concluded, “Under the circumstances of this case, the B.’s have standing to appeal.” (Vincent M., supra, 161 Cal.App.4that p. 952.)
Relying on Code of Civil Procedure section 902, the Vincent M. court noted that any party aggrieved in a civil action has a right to appeal. It further noted, “‘[A] de facto parent has an interest in the companionship, care, custody and management of the child. [Citation.]’ [Citation.]” (Vincent M., supra, 161 Cal.App.4th at p. 952, fn omitted.)
Code of Civil Procedure section 902 provides that “Any party aggrieved may appeal in the cases prescribed in this title.”
The Vincent court concluded, “In this case, the B.’s rights and interests were injuriously affected by the dependency court’s ruling. They provided a home for Vincent since he was four days old and abandoned by mother. At disposition, the case proceeded directly to permanency planning on a track of adoption by the B.’s. As the people who, ‘on a day-to-day basis, assume[d] the role of parent, seeking to fulfill both [Vincent’s] physical needs and his psychological need for affection and care, ’ the B.’s were granted de facto parent status. [Citation.] They completed an adoption home study and were approved to adopt Vincent. Unlike the circumstances in In re P.L., supra, 134 Cal.App.4th at pages 1359-1360, the B.’s always intended to adopt Vincent, and Vincent was placed there with the expectation it was an adoptive home. The dependency court permitted the B.’s to litigate in opposition to the section 388 petition, gave them access to the court file to facilitate their participation, and told them they could appeal the decision on the section 388 petition. The ruling granting the section 388 petition vacated the orders for permanency planning services and setting a section 366.26 hearing to select a permanent plan, thus taking the case off the adoption track. Services would be ordered whose goal is removing Vincent from the B.’s and giving custody to Jorge. As prior final orders are not reviewable in an appeal of a subsequent order, the B.’s will be foreclosed from obtaining a ruling on the correctness of granting this section 388 petition if they cannot proceed in the instant appeal. [Citation.]” (Vincent M., supra, 161 Cal.App.4th at p. 953.)
The dissent in the case disagreed with the standing finding by the majority. The dissent found that the B.’s had no legal right to adopt Vincent and therefore could not show how their legal interests were aggrieved. (Vincent M., supra, 161 Cal.App.4th at p. 962 (dis. opn. of Armstrong, J.) The dissent concluded (after distinguishing the cases cited by the majority), “In sum, because [the B.s] have no legal right to adopt Vincent, their legal interests are not aggrieved by the juvenile court’s orders, despite the emotional pain they quite understandably feel at the possibility that they may not be able to adopt this child.” (Id. at p. 964.)
Under the circumstances of this case, we conclude that the T.’s do not have standing to bring the instant appeal. Their appeal is based on their claim that they had a right to adopt M. The section 388 petition was brought by Father based on his claim of change of circumstances: He was the presumed father entitled to custody of his biological daughter. The only claim that the T.’s have on appeal is that they had a right to custody to M. However, it is clear that they do not have such a legal right as a de facto parent. Unlike in Vincent M., the T.’s had not been through an adoption assessment, and at the time that Father came forward, had had physical custody of M. for only two months. The Department had retained custody of M. Because the T.’s have no right to custody of M., they are not aggrieved by the trial court finding that Father was a presumed father and subsequent custody orders and thus have no standing to appeal the granting of the section 388 petition.
As we discuss, post, the T.’s did not have de facto status at the time Father’s section 388 petition was heard and cannot complain about the irregularity in the proceedings. The only claim they could conceivably raise on appeal is that they are entitled to cusody of M., and the trial court should not have granted the section 388 petition based on their right to custody. Unlike in Vincent, the T.’s did not litigate the section 388 petition.
We disagree with the majority’s reasoning in Vincent M. that essentially equates “aggrieved” in Code of Civil Procedure section 902 with any injury. As stated by Justice Armstrong in his dissent: “An ‘aggrieved party’ for purposes of Code of Civil Procedure section 902 is one whose ‘interest is injuriously affected by the judgment.... ’ [Citation.] [The B.’s] claim to be aggrieved because ‘[t]he Court’s findings and orders thwarted [their] plan to adopt Vincent.’ However, they have no legal rights to adopt Vincent.” (Vincent M., supra, 161 Cal.App.4th at p. 962 (dis. opn. of Armstrong, J.) We follow our own case of P.L. that a de facto parent has no standing to appeal a custody decision because they cannot show how their legal rights were injuriously affected. No doubt they were emotionally affected, but at the time of the juvenile court’s determination granting Father presumed father status and giving him custody of his biological daughter, the T.’s had no right to custody. Since the decision to grant Father presumed father status had no impact on the T.’s rights, they also have no standing to appeal the trial court’s finding that Father was a presumed father.
The T.’s have argued that their due process rights at the section 388 hearing were abridged because the trial court decided to grant the petition without a full hearing and that they had a liberty interest in having custody of M. They request that at the very least we remand the case for a section 388 hearing. Disregarding what rights a de facto parent may have at a section 388 hearing, the T.’s were not granted de facto status until after the section 388 petition was granted. The Department and minor’s counsel agreed with placement with Father and did not request a hearing. The T.’s never objected or stated at the section 388 hearing, or after they obtained de facto status, that they wanted a full hearing. As to any liberty interest, minor’s counsel agreed that Father should have custody. Further, although the T.’s intended to adopt M., no adoption assessment had taken place, and custody remained with the Department. Father’s appearance came very early in the dependency process.
At oral argument, counsel for the T.’s stated that they had de facto status even without the court’s “stamp of approval” in granting them such status. Counsel has provided no authority for such a proposition, and we do not find it persuasive. The T.'s simply were not de facto parents when Father was declared the presumed father and his section 388 petition was granted.
Even if we were to consider the merits of the T.’s claim, we would find the trial court did not abuse its discretion by finding that Father was a presumed father and granting reunification services that resulted in him being granted full custody of M.
A man not married to the child’s mother may be a presumed father if, from the earliest possible point after learning of the mother’s pregnancy or the birth of the child, he “promptly comes forward and demonstrates a full commitment to his parental responsibilities emotional, financial, and otherwise....” (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849.) He may attain presumed father status even if the mother thwarts his efforts, if he at least initiates prompt legal action to seek custody of the child, including a willingness to assume full custody. (Ibid.; see also In re Zacharia D. (1993) 6 Cal.4th 435, 450, fn. 19.) We review the court’s decision in granting or denying presumed father status using the substantial evidence standard of review. (In re Sarah C. (1992) 8 Cal.App.4th 964, 973.)
Mother’s misrepresentations to Father prevented him from attaining presumed father status earlier in this case. Although Father asked Mother if he was the father of M., she told him N.G. was the father. Upon finding out that he could be the father of M., Father immediately went to the Department in attempt to obtain custody of her. Father demonstrated that he could take care of M. and wanted full custody. He hired an attorney and purchased items to take care of her. We cannot conclude that the juvenile court exceeded its discretion by finding that Father was a presumed father. The juvenile court could accept Father’s declaration as true that he intended to care for and nurture M. He certainly intended to assume full custody of M. Substantial evidence supports the juvenile court’s finding that Father was the presumed father of M.
Moreover, we cannot find that the trial court erred by granting Father’s section 388 petition and awarding him custody. The T.’s argue that the trial court was required to find that it was in M.’s best interest to be placed in Father’s custody because reunification services had been terminated. Father argues he came forward during the reunification period, and therefore, once he was declared the presumed father, he was entitled to reunification services. Regardless of whether the reunification services had been terminated, the juvenile court’s order is supported by substantial evidence that it was in M.’s best interest to be placed with Father.
A section 388 petition will not be granted unless there are changed circumstances or new evidence demonstrating it is in the child’s best interest to grant reunification services or custody. (In re Zacharia D., supra, 6 Cal.4th at pp. 454-456; see also In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
The trial court found, and the Department and M.’s counsel agreed, that it would be in M.’s best interest to be placed in the custody of Father. They did not request any further hearing on the matter. We do not agree with the T.’s that the juvenile court misunderstood its discretion in this case. The juvenile court was faced with the prospect of the termination of a nonoffending biological father’s parental rights over his objection, notwithstanding that he would have been a statutory presumed father but for the actions of Mother, who thwarted his efforts to obtain custody of M. Father came forward at the earliest opportunity (which was only two months after M.’s birth) and accepted full responsibility for M. The trial court could accept Father’s acceptance of full responsibility of M. Although such removal of M. from the loving home provided by the T.’s certainly had a significant impact on the T.’s, we would not find that the trial court abused its discretion if we were to consider the claim.
III
DISPOSITION
Since we dismiss the appeal, the T.’s request for judicial notice filed on January 27, 2010, is moot insofar as it has not been ruled upon (see this court’s order filed February 2, 2010).
We concur: HOLLENHORST Acting P.J.KING J.