Jamie G., In re

• Decision Date: 24 November 1987
• Docket Number: No. H001738,H001738
• Citation: 241 Cal.Rptr. 869,196 Cal.App.3d 675
• Court: California Court of Appeals Court of Appeals
• Parties: In re JAMIE G., a Person Coming under the Juvenile Court Law. Pedro SILVA, Chief Probation Officer, Plaintiff and Respondent, v. HAZEL G., et al., Defendants and Appellants.

Page 869

241 Cal.Rptr. 869

196 Cal.App.3d 675

In re JAMIE G., a Person Coming under the Juvenile Court Law.

Pedro SILVA, Chief Probation Officer, Plaintiff and Respondent, v. HAZEL G., et al., Defendants and Appellants.

No. H001738.

Court of Appeal, Sixth District, California.

Nov. 24, 1987.

Review Denied Feb. 24, 1988.

Michael A. Kresser, Acting Administrator, Conflict Administration Program, Deanna F. Lamb, Santa Clara, Robert Fiedler, Fiedler & Gardner, San Francisco, for defendants and appellants.

Leo Himmelsbach, Dist. Atty., Robert J. Masterson, Deputy Dist. Atty., San Jose, for plaintiff and respondent.

CAPACCIOLI, Associate Justice.

This case presents the issue of what rights should be accorded the conceded de facto parents of a dependent child. Appellants Hazel and Jerry G., who are unrelated biologically to Jamie but are her psychological or de facto parents, urge this court to conclude that they should be afforded the same rights as Jamie's biological parents. Respondent argues that de facto parents are not parents or guardians for the purposes of Article 10 of the Juvenile Court Law. We decline to equate the two for this purpose and therefore affirm the juvenile court's order.

Jamie's biological mother lived with appellants while she was pregnant. She apparently had no interest in raising the child, for whom appellants agreed to care after its birth. The biological mother obtained prenatal care and entered the hospital for the baby's birth using Hazel's name. On Jamie's birth certificate, Hazel's name appears as that of her biological mother. Two days after Jamie's birth, she was released to Hazel from the hospital. The mother then left the area. She has apparently had no contact with Jamie since this time, and her present whereabouts are unknown.

Jamie lived with appellants for the next three and a half years, until January 1985. On December 31, 1984, the Probation Department (Department) received a referral from the person who was providing care for Jamie while appellants apparently had no suitable habitation for her. Jamie's care provider was suspicious that Jamie had been sexually molested. Jamie was placed in protective custody on January 9, 1985.

On January 11, 1985, the Department filed a Welfare and Institutions Code section 300, subdivision (a) petition. The petition was sustained at a jurisdiction hearing on March 13, 1985. The Department report filed for the April 2, 1985, disposition hearing revealed the facts of Jamie's birth and that Hazel was not her biological mother. Jerry, however, still claimed to be Jamie's biological father. The report stated that there was nothing to substantiate the suspicion that Jamie had been molested but that it appeared Jamie had "observed" considerable sexual activity by other adults in appellants' household. It also indicated that appellants had abused alcohol, that Jerry, age 41, had a record of five alcohol-related arrests, an arrest for welfare fraud and a sporadic employment record and that Hazel, age 47, had two previous alcohol-related arrests and a welfare fraud conviction.

At the disposition hearing, the juvenile court adjudicated Jamie a dependent child and ordered her foster placement. It ordered Jerry to submit to blood tests to determine Jamie's paternity, and ordered appellants to obtain marriage counseling, to abstain from the use of alcohol and to maintain an adequate living environment without other adults. A six-month review was set for September 11, 1985.

On May 23, 1985, appellants signed a reunification plan agreement which was to extend to September 2, 1985. On July 24, 1985, Jamie was placed in a foster-adoptive home with foster parents who wish to adopt her.

On August 6, 1985, Hazel filed a petition for modification under Welfare and Institutions Code section 388 to "review the intent of the Reunification Plan" of April 2, 1985, and to request a change in the visitation schedule. A hearing on this petition was continued until after psychological evaluations of Jamie, appellants and Jamie's foster parents had been completed. The hearing was eventually consolidated with the permanency planning hearing which was held on January 17 and 29, and February 26, 1986.

The psychologist's report, dated November 25, 1985, first noted that Jerry G.'s claim that he was Jamie's biological father had been refuted by blood tests. It concluded that Jamie had been "reared in a setting of emotional depriviation [sic] in her early years." The report recounted the history of "significant alcohol abuse, violence and unstable living conditions" in appellants' marriage and cited the prior arrests of both appellants on felony counts and Jerry G.'s chronic unemployment and alcohol abuse. Although Jamie appeared relaxed and comfortable when observed both with appellants and with her foster parents, she displayed some anxiety about appellants. The report concluded that appellants "conjointly as a couple or as individuals are not able to meet Jamie's needs for proper care and nurturing." It noted Jamie's positive progress toward age appropriate behavior while in her present foster home and stated that although she had attachments both to appellants and to her foster parents, her best interests would be served by freeing her for adoption by the foster parents. Any emotional risk to Jamie from severing her bonds to appellants, the report concluded, would be "more than compensated for by the continuation of the consistent stability and superior nurturance that has been available to her in the [foster] household."

There was also evidence presented at the permanency planning hearing, however, that Hazel had separated from Jerry and had substantially complied with the requirements of the reunification plan. Hazel then argued that she should stand in the shoes of the biological mother and that the court should allow her, pursuant to section 366.2, subdivision (e), an additional six months of reunification services. Respondent argued that since Hazel did not come under the statute, she should be allowed no further time. The court stated: "If, in fact, I [were] to treat Mrs. G[.] as a natural and biological parent, at this point, based on the evidence that has been presented, I would be finding that there is a substantial probability that reunification would occur in six months.... I do feel that Mrs. G[.] has substantially complied with the service plan presented, and ... there is a substantial probability that within six months with an appropriate service plan that the court would be in a position where Jamie and Mrs. G[.] perhaps would be reunified. Certainly if she [were] coming before the court as a natural parent, I believe I would give her that additional six months based on the evidence presented. I don't feel, at this point, she has an alcohol problem that is currently debilitating in terms of her ability to parent.... [S]he has initiated and is in the process of developing a therap[e]utic relationship that may, in fact, render her capable of parenting Jamie within a specified period of time." The court refused to allow Hazel additional time for reunification, however, in light of the fact that she was not Jamie's biological mother. Since it found that returning Jamie to Hazel at the time of the hearing would be detrimental to Jamie, the court ordered her continued in foster placement and allowed Hazel continued visitation. She also ordered county counsel to file a termination petition as to the natural mother. This appeal ensued.

The issue posed by appellants is a narrow one: whether de facto parents are entitled to the opportunity to reunify with a child which would have been accorded a parent or guardian under section 366.2, subdivision (e) and whether the denial of this opportunity amounts to a deprivation of due process. ¹ We cannot answer this question, however, without considering appellants' rights in the dependency proceeding and, more fundamentally, the nature of their relationship with Jamie. Viewed in this broad perspective, the answer to the question posed in this appeal must be no.

We cannot ignore the nature of appellants' custody of Jamie prior to the dependency proceedings, since it has an effect on the rights to which they are entitled therein. Not only have they no biological relationship to Jamie, but their custody of her has been sanctioned in no other manner. They are not Jamie's parents by virtue of having adopted her (cf. Civ.Code § 228), nor have they applied to be her adoptive parents. They have no contractual relationship with the state to provide for her care, as do foster parents. They are not, nor have they petitioned to be, Jamie's guardians. (cf. Prob.Code, § 1510.) We do not minimize the importance of appellants' psychological ties to Jamie, nor of their role in her life. The fact remains, however, that they did not have legal custody of Jamie. And their relationship with her is not accorded the status, nor does it enjoy the rights, of one sanctioned either by the existence of blood ties or established or approved in law.

The nature of appellants' relationship with Jamie fundamentally affects our analysis of their rights in the dependency proceedings. The Juvenile Court Law establishes a procedure to protect the due process rights of parents or guardians who have failed to adequately provide for their children or otherwise abused or neglected them. This, in turn, is based on an acknowledgement that biological relationships involve essential or fundamental rights. (See, e.g. Stanley v. Illinois (1972) 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551.) Since adoption is the legal equivalent of biological parenthood, (Civ.Code § 228.) the due process protections of this law are also extended to adoptive parents. Since a guardian has legal responsibility for the care, custody and control of his or her ward (see Prob.Code § 2351 et seq.) the Legislature has seen fit to extend these protections to...