Opinion
B322231
02-07-2024
In re EDWARD L., a Person Coming Under the Juvenile Court Law. v. C.G. et al., Defendants and Appellants. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
John P. McCurley for Defendants and Appellants. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent. Jesse McGowen, under appointment by the Court of Appeal, for Minor.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. 19CCJP08098, Craig S. Barnes, Judge. Affirmed.
John P. McCurley for Defendants and Appellants.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
Jesse McGowen, under appointment by the Court of Appeal, for Minor.
CHAVEZ, J.
C.G. and L.G. (grandparents), paternal grandparents of minor Edward L. (born August 2018), appeal from the juvenile court's summary denial of their Welfare and Institutions Code section 388 petition and denial of their request for de facto parent status. We affirm the orders.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
Edward is the subject of dependency proceedings. As grandparents are not parties to the dependency matter, the record on appeal is limited, and we have little information regarding the events that led to the underlying dependency case.
De facto parent request and section 388 petition
On March 2, 2022, grandparents filed form JV-296, seeking to be recognized as de facto parents of Edward, who was three years old at the time. Grandparents used a font so small as to be illegible. California Rules of Court, rule 2.104 requires that all papers must be prepared using a font size not smaller than 12 points. Grandparents' violation of this rule is prohibitive to this court confirming the grandparents' bases for their request for de facto parent status. In response to question 5 on form JV-296, grandparents stated that Edward lived with them from December 17, 2019, to February 25, 2022, and that they had dayto-day responsibility for the child during this time. In response to question 6.a., which inquired as to the amount of time the grandparents spent with the child, the grandparents responded that prior to Edward starting Head Start four months previously, he spent all day with the grandparents, and was familiar with grandparents and their home. Grandparents' responses to questions 6.b., regarding activities the grandparents did with the child, and 6.c., regarding the kind of information that the grandparents had that others may not have, are illegible.
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 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.)
While counsel references the grandparents' declaration, the declaration was filed in connection with the grandparents' form JV-180, which was a request to change the court's order removing Edward from their custody. The declaration states the reasons grandparents believed Edward should be returned to their care, and does not address the specific questions on the de facto parent statement form (JV-296).
We requested grandparents' counsel to provide a legible copy of the document, and counsel was unable to do so.
On March 8, 2022, the grandparents filed a section 388 petition requesting Edward be returned to their custody. The petition was supported by a declaration provided by the grandparents explaining their position. Grandparents asserted that Edward was noticeably sadder and more stressed since being removed from their home. They further asserted that it would be in Edward's best interest to be returned to their home because Edward had expressed a desire for this outcome and appeared unhappy in his current placement.
Section 388 provides that any parent or other person having an interest in a child who is a dependent of the juvenile court may, upon grounds of change of circumstance or new evidence, petition the court for a hearing to change, modify, or set aside any order of the court that was previously made.
On March 16, 2022, the juvenile court summarily denied the grandparents' section 388 petition without a hearing.
On April 18, 2022, the juvenile court set a hearing on the grandparents' de facto parent request for May 6, 2022. The court informed the parties that any response to the de facto parent request should be filed no later than May 2, 2022. None of the parties filed written oppositions to the petition.
Hearing on de facto parent request
The grandparents did not appear or provide testimony at the hearing on May 6, 2022. The juvenile court announced its tentative decision to deny the motion. The court explained, "[t]he issues raised therein had been previously addressed when there was a request for placement. The court had fully considered those arguments and determined that placement was necessary, and [Edward] is presently with the new caregiver, and the reasons offered in the de facto parent motion largely mimic what was in the previous hearing concerning the placement."
During the hearing, the court inquired of each party's counsel as to his or her position on the grandparents' de facto parent request. Edward's counsel accepted the court's tentative.
She stated that she believed the grandparents had met the standard, however, counsel believed "the motivation that the paternal grandparents have to remain active in this child's life can be accomplished through court-ordered visitation and can be accomplished in filing a relative information sheet." Edward's counsel stressed that because of the "history of this case and the strained relationship between the paternal grandparents and the maternal cousin, . . . it may open the doors for them to participate in proceedings and make allegations against the maternal cousin."
Edward's mother's counsel echoed the sentiments of minor's counsel and submitted on the court's tentative.
Edward's father's counsel commented, "the father would be joining with the de facto parent motion. I understand the court's tentative."
Counsel for the Los Angeles Department of Children and Family Services (DCFS) also did not object to the court's tentative, stating, "[a]s counsel have mentioned throughout, there seems to be a lot of tension right now. [DCFS] would ask . . . that there be a reminder that-essentially the placement issue of the minor is settled at this point.... If [Edward] would-in [Edward]'s best interest to continue to have visits with the paternal grandparents, that is fine, just that there should be no negative comments and this is not-the visits are not a fishing expedition to see if there is a reason to revisit that placement issue."
No party provided argument opposing the juvenile court's tentative decision to deny the de facto parent request or presented evidence in favor of the de facto parent request. The court adopted its tentative decision denying the request, stating, "[t]he arguments proffered had been previously addressed by the court. There is nothing new or different. Those items had been considered. I do recognize the minor [Edward] had been with them for a period of time, but there were issues raised that gave rise to placement. Those issues do impact the motion and the relief that is being sought therein."
The court left in place its prior orders regarding Edward's visitation with the grandparents.
Notices of appeal
On May 16, 2022, the grandparents filed notices of appeal from the juvenile court's order denying their request for de facto parent status and their section 388 petition.
DCFS argues in its respondent's brief that the grandparents' appeal as to the section 388 petition was untimely and should be rejected for that reason. Generally, a notice of appeal must be filed within 60 days of the challenged order. (Cal. Rules of Court, rule 8.406(a)(1).) However, the grandparents clarify in their reply brief that they were not present at the March 16, 2022 hearing and did not become aware of the denial until after March 21, 2022, the date that the juvenile court mailed notice of the denial. Therefore, the appeal was timely and we address the appeal on the merits.
DISCUSSION
I. De facto parent request
A. Applicable law and standard of review
"De facto parent status 'provides a nonbiological parent who has achieved a close and continuing relationship with a child the right to appear as a party, to be represented by counsel, and present evidence at dispositional hearings. Absent such status, very important persons in the minor's life would have no vehicle for "assert[ing] and protect[ing] their own interest in the companionship, care, custody and management of the child" . . . and the court would be deprived of critical information relating to the child's best interests.'" (In re Bryan D. (2011) 199 Cal.App.4th 127, 141, citation omitted (Bryan D.).) "De facto parent status is ordinarily liberally granted on the theory that a court only benefits from having all relevant information on the best interests of the child. However, the determination depends on the specific circumstances of each case." (Ibid.)
"The factors courts generally consider for determining de facto parent status include '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].'" (Bryan D., supra, 199 Cal.App.4th at p. 141.)
"However, a person who otherwise qualifies for de facto parent status may become ineligible by acting in a manner that is fundamentally inconsistent with the role of a parent." (Bryan D., supra, 199 Cal.App.4th at p. 142.) For example, "a nonparent who commits sexual or other serious physical abuse upon a child in his or her charge . . . forfeits the opportunity to appear as a party, be represented, and give evidence about disposition in a dependency proceeding caused by the misconduct." (In re Kieshia E. (1993) 6 Cal.4th 68, 79-80 (Kieshia E.).) Other examples include a grandmother who allowed her grandchildren's physically abusive father unsupervised access to them (In re Michael R. (1998) 67 Cal.App.4th 150, 157-158); a would-be de facto parent who hit the child and left narcotics within her reach (In re Leticia S. (2001) 92 Cal.App.4th 378, 382-383 (Leticia S.)); and a grandmother who was denied de facto parent status after she left her grandchildren with their mother, who was a known drug addict (In re Merrick V. (2004) 122 Cal.App.4th 235, 242).
There is conflicting case law as to whether less serious conduct, such as inadequate childcare arrangements, disqualifies an individual from attaining de facto parent status even if the conduct leads to dependency proceedings. (Bryan D., supra, 199 Cal.App.4th at p. 143.) In Bryan D., the appellate court determined that a grandmother's act of leaving a 12 year old with inadequate supervision and failing to provide her contact information was insufficient to deny the grandmother de facto parent status because, although her neglectful acts led to dependency proceedings, "[t]here was no evidence grandmother engaged in any intentional acts that put Bryan at any risk of serious physical harm akin to sexual or other physical abuse." (Id. at p. 144.) However, the Leticia S. court broadly interpreted Kieshia E. as holding that "if an applicant for de facto parent status is a cause for the dependency proceedings, the application must be denied." (Leticia S., supra, 92 Cal.App.4th at p. 383.) Similarly, in In re D.R. (2010) 185 Cal.App.4th 852, 862, the court stated that "[a]n applicant for de facto parent status is automatically disqualified if he or she caused harm to the minor. [Citation.] The abuser forfeits the opportunity to appear as a party, to be represented, and to give evidence about an appropriate disposition in a dependency proceeding caused by that person's misconduct."
"'The denial of a petition for de facto parent status is reviewed for abuse of discretion.'" (Bryan D., supra, 199 Cal.App.4th at p. 141.) "'"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."'" (Ibid.)
B. Grandparents have failed to show error
Grandparents bear the burden of showing both an abuse of discretion and a miscarriage of justice. (In re S.O. (2020) 48 Cal.App.5th 781, 786-787 ["'"To show abuse of discretion, the appellant must demonstrate the juvenile court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a miscarriage of justice."'"].) Therefore, "'we will not lightly substitute our decision for that rendered by the juvenile court. Rather, we must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings where there is substantial evidence to support them.'" (Id. at p. 787.)
Grandparents have not provided sufficient evidence that the juvenile court abused its discretion. The grandparents provided evidence on their de facto parent request form that they were Edward's caregivers for a substantial time. They also provided evidence in connection with their section 388 request that Edward was psychologically bonded to them. However, they have not provided evidence that they possess information about the child unique from other participants in the process; that they regularly attended juvenile court hearings; or that a future proceeding may result in an order permanently foreclosing any future contact between them and Edward.
On their form JV-296, grandparents checked a box indicating that they have attended court hearings. However, it is unclear from the record whether such attendance was regular. As set forth above, they were not present at the hearing on the de facto parent request.
As noted above, grandparents provided a petition that answered questions in writing so small as to be unreadable. While grandparents' attorney on appeal has offered interpretations of this microscopic writing, we are entitled to review the actual evidence itself, which should be presented legibly. "Statements by an attorney, whether made in court or in a brief, are not evidence." (Muskan Food &Fuel, Inc. v. City of Fresno (2021) 69 Cal.App.5th 372, 389.) Further, even if we take grandparents' counsel's word for what is supposedly written in the document, due to the limited record, we have no sense of the proceedings as a whole. For example, we do not know whether the parents also resided with the grandparents, how big a role the parents played in the child's life, or whether the grandparents regularly attended court proceedings. Nor was there any evidence or argument presented at the hearing that could shed light on these questions.
Grandparents admit that they were appointed trial counsel, but their attorney was not present at the March 16, 2022 hearing at which their section 388 petition was denied. There is no indication in the record that their counsel was present at the May 6, 2022 hearing where the grandparents' request for de facto parent status was denied.
The record suggests the grandparents had no persuasive evidence on relevant key points. As to whether the grandparents had unique information about the child, Edward's counsel suggested that any such information could be brought to the court's attention with a relative information sheet. There is no suggestion in the record that the grandparents provided any such information. Edward's counsel also suggested that the grandparents could remain active in the child's life "through court-ordered visitation." Counsel for DCFS agreed, pointing out a concern that the grandparents were on a "fishing expedition to see if there is a reason to revisit that placement issue." In short, grandparents have provided insufficient evidence for this court to substitute its decision for that of the juvenile court. Instead, we fill in the gaps in the record on appeal with reasonable inferences supporting the decision of the juvenile court. (In re S.O., supra, 48 Cal.App.5th at p. 787.)
We can infer from the juvenile court's comments that it did not find the grandparents credible. The court noted it had previously considered the grandparents' arguments, and the "reasons offered in the de facto parent motion largely mimic what was in the previous hearing concerning the placement." Throughout the hearing, counsel noted that there was "a lot of tension" amongst family members at that time, and concern that the grandparents' motivation was to undermine Edward's current placement.
In his request for judicial notice, Edward asked that this court take judicial notice of a postappeal order made by the juvenile court granting Edward's caregiver's request for a restraining order against the grandparents. The grandparents oppose the request. We deny Edward's request, as the postappeal restraining order is not necessary to our decision. (In re Alexander P. (2016) 4 Cal.App.5th 475, 491, fn. 16.)
Bryan D., supra, 199 Cal.App.4th 127 is distinguishable. Twelve-year-old Bryan had been living with his grandmother since he was an infant. The minor filed the appeal from the denial of grandmother's request for de facto parent status. The Bryan D. court reversed the juvenile court's denial of de facto parent status for the grandmother because the juvenile court's denial was based largely on Bryan's status as a dependent of the court-which was caused in part by the grandmother's conduct. The Bryan D. court found that the juvenile court abused its discretion in automatically denying the grandmother de facto parent status because her conduct was a cause of the dependency proceedings. (Id. at pp. 145-146.) Here, in contrast, the juvenile court was not persuaded by the evidence presented by the grandparents.
In re Vincent C. (1997) 53 Cal.App.4th 1347 is distinguishable for the same reason. There, two children were placed with their grandmother who provided them excellent care for three years until the children's behavior became out of control and they began to misbehave in serious ways. (Id. at pp. 13511353.) During the proceedings, the grandmother and the children asked that the grandmother be granted de facto parent status, but the juvenile court denied the request, "explaining its view that [the grandmother's] inability to control the children and her stipulation to the order sustaining the supplemental petition justified a denial of de facto status." (Id. at p. 1356.) Here, in contrast, the juvenile court did not use the grandparents' actions as a basis to deny the petition, but found that the evidence, which the grandparents had raised previously before the court, did not support the petition.
Grandparents take issue with the juvenile court's rationale for denying the grandparents de facto parent status. They point out that the court appeared to be most concerned that the information presented by the grandparents had already been considered by the court in a prior hearing related to placement. They argue that this reasoning does not constitute a valid basis for denying the petition. However, we have no record of the prior proceeding in which the factors concerning de facto parent status were discussed. Under the circumstances, we must infer that substantial evidence supports the juvenile court's decision. (In re S.O., supra, 48 Cal.App.5th at pp. 786-787.)
Grandparents have also failed to show that any error was prejudicial. The California Constitution provides that we may not reverse a judgment or order "unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) "'When the error is one of state law only, it generally does not warrant reversal unless there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached.'" (In re Christopher L. (2022) 12 Cal.5th 1063, 1073.) A dependency court's errors are generally subject to the harmless error analysis. (Id. at pp. 1074-1075.)
In this matter, grandparents failed to show the court's purported error in denying their de facto parent request was prejudicial. As grandparents point out, without access to the full record in this matter, it is impossible to know the current status of the case. We decline to speculate as to the outcome of the underlying dependency matter and how grandparents' involvement could have created a more favorable outcome for them.
Grandparents argue that attainment of de facto parent status would have allowed them to appear as parties and present evidence regarding ongoing visitation. However, the record before us shows that despite being denied de facto parent status, grandparents were granted visitation and all parties, including
DCFS, acknowledged the importance of such visitation. Further, there is no evidence that the grandparents had unique information about Edward that would have changed the outcome of the case. As Edward's counsel pointed out, grandparents could have filed a relative information sheet. Further, grandparents were represented by counsel. They could have appeared at the hearing on their de facto parent request, provided information to the court on the significance of their request, and argued for a different outcome. Without the benefit of argument supporting their request, and without a full record, we have little means of determining how attaining de facto parent status could have changed matters favorably for the grandparents.
Grandparents have failed to meet their burden of showing an abuse of the juvenile court's discretion or a miscarriage of justice resulting from a denial of their de facto parent request.
II. Section 388 petition
A. Applicable law and standard of review
Section 388 provides that a parent or other person having interest in a child may petition the juvenile court for modification of any previous order based upon changed circumstances or new evidence. (In re Alayah J. (2017) 9 Cal.App.5th 469, 478 (Alayah).) "To obtain the requested modification, the parent must demonstrate both a change of circumstance or new evidence, and that the proposed change is in the best interests of the child." (Ibid.) The burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make the requested change in the best interest of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
"To obtain an evidentiary hearing on a section 388 petition, a parent must make a prima facie showing that circumstances have changed since the prior court order, and that the proposed change will be in the best interests of the child. [Citations.] To make a prima facie showing under section 388, the allegations of the petition must be specific regarding the evidence to be presented and must not be conclusory. [Citation.] A section 388 petition must be liberally construed in favor of granting a hearing to consider the parent's request." (Alayah, supra, 9 Cal.App.5th at p. 478.) "A 'prima facie' showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited." (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) "'"Thus, if the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing."'" (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432.)
A juvenile court's summary denial of a section 388 petition is reviewed for abuse of discretion. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079.)
B. Grandparents' section 388 petition
In their section 388 petition, grandparents asked the court to change its February 25, 2022 order removing Edward from their care. Grandparents sought an order returning Edward to their care.
Grandparents provided a declaration in support of their petition. As to changed circumstances, grandparents attested that in August 2021, they were informed Edward was going to be removed from their care because the social worker witnessed Edward alone with Edward's father while on the grandparents' watch. Grandparents explained father was there for a monitored visit with Edward, and grandmother, who was monitoring the visit, had briefly gone inside to get Edward some water. Ultimately, DCFS did not then remove Edward from grandparents' home.
The social worker again wanted to remove Edward from the grandparents' home because the social worker mistakenly believed the grandparents were allowing father to be around Edward while father was using drugs. The grandparents explained the social worker's only reason for believing father was on drugs was that he was wearing dark glasses. Again, DCFS did not then remove Edward from the grandparents' home.
DCFS did remove Edward from the grandparents' home in February 2022 and placed him with his younger half brother. Grandparents attested that the social worker never asked them if they would receive the half brother into their home, which they would have. Grandparents believed the children should be placed together in grandparents' home. Grandparents attested that they had "been deceived and led on to believe that there would be no issues with [their] adopting Edward."
Since Edward was removed from their home, he is "noticeably sadder and enormously stressed because he is far away from his family and school friends." Edward cried on the phone, expressed that he did not want to live with the new caregiver, and expressed a desire to return to grandparents. When the grandparents saw Edward in person, he hid and did not want to go back with the caregiver at the end of the visit. Grandparents feared that the sudden change in placement would have a negative psychological impact on Edward. Grandparents attested to their close relationship with Edward during the time he was placed in their care. They claimed they were "involved in his life since birth and have become even more bonded to him since he has been placed in our home." The grandparents further explained Edward was "familiar with our home, our rules, and the environment, and he is comfortable and happy with us." They believed it was in Edward's best interest to return to their care because he expressed a desire to do so. In addition, Edward had been expressing negative emotions since his removal, including being sad and scared.
C. The juvenile court did not err in summarily denying grandparents' section 388 petition
Grandparents argue they made a prima facie showing entitling them to a hearing on their section 388 petition. As to the change of circumstances, grandparents argue Edward showed signs of sadness and distress in his new placement and expressed a desire to return to his grandparents' care. As to the best interest element, grandparents assert that replacement of Edward back in their care would be in his best interest because he was already bonded with them, they would provide him with love, care, and support, and he was noticeably happier in their custody. Grandparents contend that, construed liberally, the allegations were more than adequate to trigger the right to a full evidentiary hearing.
DCFS and Edward ask that we affirm the juvenile court's summary denial of the grandparents' section 388 petition. They argue that grandparents failed to make a prima facie showing as to either of the elements required to trigger a hearing on the petition. We agree.
Edward was appointed counsel and filed a separate respondent's brief in this appeal.
As to the first element, the asserted change of circumstance must be "'of such significant nature that it requires a setting aside or modification of the challenged prior order.'" (In re Mickel O. (2011) 197 Cal.App.4th 586, 615.) The grandparents' asserted change of circumstance-Edward's negative emotions- was not of such a significant nature as to warrant setting aside his placement order. At the time of the grandparents' petition, Edward had only been in his new placement with his half sibling for approximately 10 days. Grandparents made no allegations that Edward was at risk of harm in his new placement. We have insufficient access to the record in order to fully understand the reasons behind Edward's removal from the grandparents, but can infer it was for the long-term goal of strengthening sibling ties. That Edward felt sadness and distress during the initial transitional period to his new placement does not amount to a sufficient change of circumstances warranting a hearing.
Grandparents asserted that Edward was removed from their home on February 25, 2022. Their section 388 petition was executed on March 7, 2022, only 10 days later.
As to the second element, Edward's interests were not served by changing his placement back to grandparents only a few weeks after his removal from their home. Such an action would destabilize Edward's living situation, and the juvenile court determined Edward's best interest was served by being with his younger half sibling, who had been cared for by the new caregiver for the past two years. In addition, there were suggestions in the limited record that grandparents' behavior during the proceedings undermined Edward's best interests. Specifically, there is a suggestion that grandparents were interfering with Edward's new placement. On March 16, 2022,
Edward's counsel asked the court to limit grandparents' visitation with Edward to every other weekend "and for the exchange of the child to take place in a neutral setting so that there are no issues between the current caretaker and the paternal grandparents." On May 6, 2022, both Edward's counsel and DCFS's counsel noted the tension between grandparents and Edward's caregiver and stressed the need to enforce positive exchanges. It was not in Edward's best interest to be returned to grandparents given their presumably uncooperative and difficult behavior.
The juvenile court did not abuse its discretion in summarily denying grandparents' section 388 petition, as grandparents failed to set forth a prima facie case that the requested change of order should be granted.
Grandparents have submitted a request for judicial notice, asking this court to take judicial notice of form JV-183. Grandparents assert that the form shows that the juvenile court was required to make a written order summarily denying their section 388 petition. Grandparents' request for judicial notice is granted, but we find that grandparents have failed to show that the absence of such a form in the record is reversible error. The juvenile court issued a written minute order denying their petition on March 16, 2022.
DISPOSITION
The orders are affirmed.
We concur: LUI, P. J., ASHMANN-GERST, J.