Joshuia S., In re

• Decision Date: 14 October 1988
• Docket Number: No. E004620,E004620
• Court: California Court of Appeals Court of Appeals
• Parties: In re JOSHUIA S., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES et al., Plaintiffs and Respondents, v. PAULA S., Defendant and Appellant.

Page 106

252 Cal.Rptr. 106

205 Cal.App.3d 119

In re JOSHUIA S., a Person Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES et al., Plaintiffs and Respondents, v. PAULA S., Defendant and Appellant.

No. E004620.

Court of Appeal, Fourth District, Division 2, California.

Oct. 14, 1988.

[205 Cal.App.3d 121] Alys Briggs, Oakland, under appointment by the Court of Appeal, for Defendant and appellant Paula S.

Jean Pfeiffer Leonard and Sharon J. Waters, Los Angeles, for respondents Kathleen and Leland S.

Gerald J. Geerlings, County Counsel, and Beth A. Melvin, Deputy County Counsel, Riverside, for respondent Dept. of Public Social Services.

Deborah J. Mohr-Walker, under appointment by the Court of Appeal, for minor.

OPINION

SCHULTE, Associate Justice. ^*

Objector Paula S., mother of the minor Joshuia S., appeals from the juvenile court's order granting de facto parent status to Joshuia's foster parents, on the ground that the court should have used the clear and convincing evidence standard of proof in reaching its determination.

FACTS

Joshuia S. was adjudged a dependent of the court and placed in the care of foster parents for seven months, at which time the court scheduled a permanency planning hearing on Joshuia's case. Joshuia's foster parents filed a motion to be recognized as his de facto parents for the purposes of the juvenile court proceedings. They indicated in their moving papers their desire to adopt Joshuia. The court applied the preponderance of the evidence standard of proof in reaching its decision to recognize the de facto parent status of the foster parents. The court then made the following order concerning Joshuia's placement: "The bests [sic] interests of the child requires [sic] that at this time he remain with the defacto [sic] parents and it is so ordered. Placement with the defacto [sic] parents is not inconsistent with our continued goal of reunification with the mother. Further, it is not inconsistent with continuing contact between the child and the maternal grandmother. The defacto [sic] parents are ordered to cooperate with continuing reunification efforts and with continuing visitation with the maternal grandmother."

DISCUSSION

Joshuia's mother contends that the juvenile court erred in applying the preponderance of the evidence standard of proof rather than the clear and convincing evidence standard in determining whether the foster parents should have de facto parent status for litigation purposes. She is joined in this contention by the Department of Public Social Services. The gravamen of her argument is that a higher standard should be applied because "significant consequences may follow the grant of such a status," including "an ultimate termination of parental rights ... based upon the grant of de facto parent status." She asserts that in termination proceedings "the de facto parent would ... already have an implied preference [over the natural parent] from that status alone. It is akin to a pretrial ruling or an action for declarative relief that will have already effectively determined the ultimate issue by the nature of the ruling."

Initially, we observe that the mother is placing too much significance in the status of de facto parent. The granting of such status does not automatically confer custody of the minor dependent child on persons recognized as de facto parents, as she implies. Rather, such a grant confers standing upon such persons to assert their interest in the custody, companionship, care and management of the child in dependency proceedings. (In re B. G. (1974) 11 Cal.3d 679, 692-693, 114 Cal.Rptr. 444, 523 P.2d 244.) Our Supreme Court noted in In re B. G. that "[t]he juvenile court in a dispositional hearing must undertake 'a judicious appraisal of all available evidence bearing on the child's best interests' including an evaluation of the relative merits of alternative custody awards. [Citation.] The presence of de facto parents will aid the court in that endeavor; the views of such persons who have experienced close day-to-day contact with the child deserve consideration; moreover, an award of custody to such de facto parents is often among the alternate dispositions which the court must evaluate." (Id., at p. 693, 114 Cal.Rptr. 444, 523 P.2d 244.) This rationale also applies to review and permanency planning hearings. (See Christina K. v. Superior Court (1986) 184 Cal.App.3d 1463, 1466-1467, 229 Cal.Rptr. 564.) As the court in Christina K. pointed out, the juvenile court is free to discount the testimony of persons granted de facto parent status, in determining what are the best interests of the child, if it is revealed after granting standing that those persons do not have a close relationship to the child. (Id., at p. 1467, 229 Cal.Rptr. 564, including fn. 5.)

Next, we consider what standards of proof have been applied by our courts in reaching other decisions in dependency and termination proceedings, and the rationales for such applications.

Section 115 of the Evidence Code provides that "[e]xcept as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence." Our courts have not yet established whether the issue of de facto status should be decided by a preponderance of the evidence or clear and convincing evidence; nor has the Legislature spoken on this issue. However, the Legislature has established that the clear and convincing evidence standard must be applied in deciding whether to terminate parents' rights to their children (Civ.Code, § 232, subd. (c), & former subd. (a)(7)), and the Supreme Court has held that the clear and convincing standard in section 232 is both constitutional and consistent with the goals of the statute. (In re Angelia P. (1981) 28 Cal.3d 908, 918-919, 171 Cal.Rptr. 637, 623 P.2d 198.) Our appellate courts have in turn ruled that, if the juvenile court concludes that a minor child comes within its jurisdiction so as to be adjudged a dependent of the court pursuant to section 300 and following of the Welfare and Institutions Code, the clear and convincing evidence standard must be applied if custody of the child is awarded to a nonparent at the dispositional hearing. (In re James T. (1987) 190 Cal.App.3d 58, 66, 235 Cal.Rptr. 127; In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1113-1115, 200 Cal.Rptr. 789.) This rule has recently been codified in Welfare and Institutions Code section 361, subdivision (b). Conversely, section 355 of the Welfare and Institutions Code provides that the applicable standard of proof for the court to determine whether a child comes within the jurisdiction of the juvenile court pursuant to a dependency petition is preponderance of the evidence, and the majority of courts have held this standard to be appropriate at the jurisdictional phase. (In re Cheryl H., supra, 153 Cal.App.3d at p. 1112, 200 Cal.Rptr. 789.)

In In re Angelia P., supra, 28 Cal.3d 908, 171 Cal.Rptr. 637, 623 P.2d 198, our Supreme Court explained its reasons for holding that the clear and convincing evidence standard of proof to be constitutional and appropriate to the goals of Civil Code section 232. First, it pointed out that parenting is a fundamental right which can be disturbed " '... only in extreme cases of persons acting in a fashion incompatible with parenthood.' [Citations.]" (Id., at p. 916, 171 Cal.Rptr. 637, 623 P.2d 198.) However, it stated that parents' rights are not absolute and that competing interests must be considered in establishing the appropriate burden of proof for severing the parent-child relationship. (Ibid.) It identified those rights or interests as "those of (1) the parent and child in a continuing familial relationship; (2) the parent in preserving the integrity and privacy of the family unit, free of state intervention and social stigma attached to either parent or child; (3) the child in a permanent, secure, stable, and loving environment; and (4) the state in protecting the child." (Id., at p. 919, 171 Cal.Rptr. 637, 623 P.2d 198.) The court quoted the United States Supreme Court's statement in Addington v. Texas (1979) 441 U.S. 418 at page 423, 99 S.Ct. 1804, at page 1808, 60 L.Ed.2d 323 that " '[t]he function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding is to "instruct the factfinder concerning the degree of confidence our society thinks he [or she] should have in the correctness of factual conclusions for a particular type of adjudication." [Citation.] The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.' " (In re Angelia P., supra, 28 Cal.3d at p. 919, 171 Cal.Rptr. 637, 623...