L. A. Cnty. Dep't of Children & Family Servs. v. Heather W. (In re Abigail L.)

Decision Date10 February 2022
Docket NumberB310601
Citation290 Cal.Rptr.3d 319,75 Cal.App.5th 169
Parties IN RE ABIGAIL L., a Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. Heather W., Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals

Deborah Dentler, Glendale, for Defendant and Appellant.

Janet G. Sherwood for Advokids as Amicus Curiae on behalf of Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Jane E. Kwon, Principal Deputy County Counsel, for Plaintiff and Respondent.

SEGAL, J.

INTRODUCTION

Heather W., the former foster parent of Abigail L., appeals from the juvenile court's order denying her request for de facto parent status. Because the juvenile court erred in ruling Heather's request was moot, we reverse the order and direct the juvenile court to enter a new order granting the request.

FACTUAL AND PROCEDURAL BACKGROUND
A. Abigail Is Placed with Heather

After the juvenile court removed her from her parents, Abigail lived with Heather for almost two years, from February 1, 2019, when Abigail was eight weeks old, to November 24, 2020, the date of the hearing that prompted this appeal.

In April 2019 the juvenile court declared Abigail a dependent child of the court under section 300 of the Welfare and Institutions Code1 and denied her parents family reunification services.

Heather previously adopted two daughters from foster care and had another child placed with her when Abigail arrived. Heather provided for all of Abigail's "physical and essential needs" and was the only parental figure in Abigail's life. Heather stated that Abigail called her "MaMa" and each of Heather's daughters "Sissy" and that Abigail was "deeply bonded" with Heather and her children. Heather committed to adopting Abigail if reunification failed.

B. Heather's Relationship with Abigail's Half-sister Deteriorates

At a juvenile court hearing, Heather learned Abigail had a 12-year-old half-sister, Anahi L. Anahi was also a dependent of the juvenile court, but had never lived with Abigail. The juvenile court ordered visitation for Anahi and Abigail beginning in May 2019, which Heather facilitated. Heather described Anahi as "disengaged," "uninterested," and "depressed" during Anahi's visits with her toddler half-sister. At Anahi's request, in June 2019 Heather agreed to let Anahi move in with her and Abigail. According to Heather, the Los Angeles County Department of Children and Family Services said Anahi's placement with Heather would not be for very long and would end when Anahi moved to Arizona to live with her aunt and uncle (who were unrelated to Abigail). Anahi began living with Heather in August 2019.

Heather claimed that Anahi "spiraled downhill psychologically" after the juvenile court terminated the parental rights of Anahi's parents. Anahi began "lashing out" at Heather and her children and threatened to "kidnap" Abigail and "run away to Arizona." In March 2020 Anahi told her social worker that Heather slapped her. Heather denied the allegation and asked the Department to remove Anahi from her home. The Department's investigation of physical abuse "was closed as inconclusive but the investigation led to an additional allegation of general neglect and this allegation was closed as substantiated." The Department briefly placed Anahi in another foster home before placing her with her aunt and uncle in Arizona.

C. Heather Requests De Facto Parent Status, and the Department Files Its Section 366.26 Report

Meanwhile, on January 28, 2020, Heather filed a request for de facto parent status. Heather stated that she provided for all of Abigail's daily physical, emotional, social, and developmental needs and that she knew Abigail's nap and bedtime routines, her likes and dislikes, and how to soothe her. Heather also said she took Abigail to her doctor appointments, attended court hearings in Abigail's dependency case, and provided written reports to the court about Abigail.

At a February 4, 2020 hearing on Heather's request for de facto parent status, the juvenile court stated: "I don't see somebody's trying to take the child away from you. You do get additional rights, once we do terminate parental rights, so you don't need a de facto motion for that. So, if we terminate parental rights 90 days from today in May then we don't need it." The court continued the hearing on Heather's request to May 20, 2020 to coincide with the selection and implementation hearing under section 366.26.2

Heather filed another request for de facto parent status on May 13, 2020. She reiterated she had cared for Abigail continuously since Abigail was an infant, provided for all of Abigail's needs, attended juvenile court hearings involving Abigail, and facilitated Abigail's visits with her older half-sister. Heather also stated she had recently learned the Department had conferred with Anahi's attorney and her court-appointed special advocate "about whether to move [Abigail] to Arizona." Heather stated Anahi's aunt and uncle in Arizona were "total strangers to [Abigail]," did not visit or contact her, and did not contribute to her support.

On May 14, 2020 the Department filed its section 366.26 report. The Department detailed its concerns with Abigail's continued placement with Heather. In particular, the report stated the Department had "some doubts about the appropriateness" of Heather as Abigail's prospective parent because of Heather's "swift decision" to ask the Department to remove Anahi from her home. The Department stated that it had to consider "whether this could happen again with Abigail" and that placing Abigail with Anahi was "most likely in the best interest of" Abigail.

The Department also reported that, because of the substantiated allegation Heather had neglected Anahi, Community Care Licensing was going to investigate whether to rescind Heather's foster home certification. The Department stated that, because of "the current circumstances and pending investigations," it could not recommend Heather as the prospective adoptive parent of Abigail. Instead, the Department reported it would evaluate placing Abigail with Anahi's relatives in Arizona.

The record does not indicate what transpired at the hearing scheduled for May 20, 2020, but on June 10, 2020 the juvenile court continued the section 366.26 hearing and the hearing on Heather's request for de facto parent status to November 24, 2020. Heather did not receive notice the juvenile court would hear her request on November 24, 2020, but she did receive notice the court would have a hearing designated "Other" on that date.3 The notice informed Heather the social worker recommended Abigail remain in foster care with a permanent plan of "return home, adoption, ... legal guardianship, or placement with a fit and willing relative, as appropriate."

On July 14, 2020 the Department notified Heather it intended to remove Abigail from Heather's home in 14 days and place Abigail with her sister in Arizona because Heather "was unwilling to let Abigail visit [the] caretakers of her half-sister during a planned sibling visit." The notice prompted counsel for Abigail to ask the court to prevent the Department from removing Abigail without a hearing. Counsel for Abigail stated Department social workers were "frustrated with [Heather's] communication with them, among other issues, but nothing pertaining to the health and well-being of Abigail."4 The Department rescinded the 14-day notice because it had not yet approved the home of Anahi's aunt and uncle as a potential placement for Abigail. On November 18, 2020 the Department requested another 120 days to approve Abigail's placement with Anahi's relatives.

D. The Juvenile Court Denies Heather's Request for De Facto Parent Status and Places Abigail with Anahi's Relatives in Arizona

Heather attended the November 24, 2020 hearing remotely and was represented by pro bono counsel. The Department opposed Heather's request for de facto parent status, recommended the court place Abigail with her sister in Arizona, and asked the court to continue the section 366.26 hearing until the Department could assess Abigail's placement in Arizona. Counsel for the Department argued that Heather's request for de facto parent status would be moot after the court placed Abigail in a different home and that the court should deny the request because of "the incident that occurred with [Anahi] in the home." Counsel for Abigail agreed with the Department and said she did not believe Heather was "sincere with regards to pursuing sibling visitation." Counsel for Abigail described several incidents where Heather reportedly "thwarted" Abigail's visits with Anahi.

Counsel for Heather denied the allegations against Heather and observed that Heather, as a nonparty, did not have access to the Department's report providing the details of those allegations and that the Department had not discussed any of the allegations with Heather. Counsel for Heather asked the court to allow Heather to make a statement refuting the allegations. On the merits of the request, counsel argued that Heather met all of the criteria for de facto parent status, that Abigail was "profoundly bonded" with Heather, that Abigail regarded Heather as her mother, and that removing Abigail from Heather would interfere with the psychological bond between them. Counsel for Heather explained Abigail's visits with Anahi were short because Abigail was only two years old and cell phone calls with a child that age "are difficult." Counsel said Heather would enter into a post-adoption contact agreement to ensure visits with Anahi continued.

The juvenile court did not rule on the request to allow Heather to make a statement. The court, stating that the "primary goal" is "placing children together," placed Abigail on an extended visit with Anahi in Arizona. The court explained Abigail's placement in Arizona...

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