Rachael C., In re

• Decision Date: 13 November 1991
• Docket Number: No. C008474,C008474
• Citation: 235 Cal.App.3d 1445,1 Cal.Rptr.2d 473
• Court: California Court of Appeals Court of Appeals
• Parties: In re RACHAEL C., a Person Coming Under the Juvenile Court Law. BUTTE COUNTY CHILD PROTECTIVE SERVICES, Plaintiff and Respondent, v. JOY C., Defendant; Connie S. et al., Movants and Appellants.

Page 473

1 Cal.Rptr.2d 473

235 Cal.App.3d 1445

In re RACHAEL C., a Person Coming Under the Juvenile Court Law.

BUTTE COUNTY CHILD PROTECTIVE SERVICES, Plaintiff and Respondent, v. JOY C., Defendant;

Connie S. et al., Movants and Appellants.

No. C008474.

Court of Appeal, Third District, California.

Nov. 13, 1991.

[235 Cal.App.3d 1447] Steven B. Solomon, under appointment by the Court of Appeal, for movants and appellants.

[235 Cal.App.3d 1448] Robert A. Glusman, for plaintiff and respondent.

No appearance for defendant.

SPARKS, Acting Presiding Justice.

In this case we consider the right of parties having the physical custody of a minor to participate as de facto parents in the dispositional hearing phase of a dependent child proceeding.

Connie and Wayne S. appeal from a dispositional order of the juvenile court stemming from a hearing in which they were not allowed to participate as de facto parents. Appellants contend that the court erred in failing to accord them the status of de facto parents, and by failing to inform them of their rights, and that the dispositional orders were based upon inadmissible hearsay. We conclude that the court erred in denying the status of de facto parents to the appellants. Accordingly, we shall reverse the order of the juvenile court.

BACKGROUND

Appellants are not the biological parents of Rachael, the minor child, nor do they On June 30, 1989, the child was removed from appellants' custody when police officers discovered methamphetamine in appellants' home and, more particularly, around the child's dresser and bottle liners. It is alleged that a subsequent blood test revealed the presence of amphetamines in the child's system.

have officially recognized legal status, such as that of guardians or foster parents. However, it appears that for the first nine months of her life the child's mother, Joy C., left her in the care and custody of the appellants. Joy left a handwritten note with Connie purporting to give her "all rights as guardian" of the child. Appellants gave the child the name Shammay S., and began caring for her as though she were their own child.

Dependent child proceedings were instituted using the name Shammay S. for the child and listing appellants as the parents. (Welf. & Inst.Code, § 300, subd. (b) & (g).) Eventually Butte County Child Protective Services (hereafter the county), discovered cause to believe appellants were not the child's natural parents and moved for blood testing to establish parentage. Appellants then admitted that they are not the child's natural parents. An amended petition was filed setting forth the circumstances of the removal of the child from appellants' custody and stating that reasonable efforts to locate the child's natural parents had been unsuccessful.

On September 29, 1989, at a hearing which neither appellants nor the natural parents attended personally or through counsel, the court sustained the jurisdictional petition. A dispositional hearing was scheduled for October 13, 1989. On that date the appellants appeared but the county contested their standing to participate. The trial court continued the matter and appointed counsel to represent appellants on the question whether they should be accorded the status of de facto parents. When the matter came on for hearing the county requested a continuance in order to obtain a psychological evaluation. At that time the court tentatively denied de facto parent status to appellants, subject to reconsideration after the psychological evaluation. There followed several more continuances.

Eventually the court took up the matter of the dispositional hearing without appellants' participation but with the express understanding that they would be allowed to reopen and litigate disposition if they should be determined to have de facto parent status. Two weeks later the court denied de facto status to appellants. In ruling the court said: "I'm sorry I'm going to rule the way I am. [p] I have all the empathy for all these two people. The fact they have been there and they care for the child. [p] Based on the law as I have reviewed it and based on the psychological evaluation, I just can't find legally they're entitled to de facto status. [p] I feel badly for them. I feel that's the status. [p] I'm going to deny them de facto status which would deny them standing in these proceedings."

DISCUSSION

The concept of a de facto parent arose in In re B.G. (1974) 11 Cal.3d 679, 114 Cal.Rptr. 444, 523 P.2d 244. There the children of a foreign refugee were placed in foster care after the death of their father. Their mother, who remained a foreign national, sought to regain custody. The primary holding in In re B.G., was that an award of custody to a nonparent requires a finding that an award to a parent would be detrimental to the child. In its discussion the Court touched briefly upon the standing of the foster parents in the proceedings. It appeared that the juvenile court had permitted the foster parents to appear as parties. In the Court of Appeal and in the Supreme Court the foster parents had not been permitted to appear as parties but their counsel had been permitted to argue the case as amicus curiae. The Supreme Court concluded that the unsatisfactory and ad hoc nature of these rulings demonstrated the need for clarification. (Id. at p. 692, 114 Cal.Rptr. 444, 523 P.2d 244.)

The high court said: "We conclude that de facto parents, such as the foster parents in this case, should be permitted to The high court's decision in In re B.G. has spawned a series of appellate decisions. In Katzoff v. Superior Court (1976) 54 Cal.App.3d 1079, 127 Cal.Rptr. 178, a dependent child was placed in foster care with the Katzoffs where he remained for approximately 21 months. On request of the welfare department and without allowing the foster parents to participate, the juvenile court authorized the placement of the child in another home. The Court of Appeal said: "It is clear that there are several areas of factual disputes upon which the court could have received evidence. The court merely heard the arguments of counsel, laden with factual assertions of a testimonial nature, and proceeded to rule in favor of the department." (Id. at p. 1085, 127 Cal.Rptr. 178.) The court held that this was contrary to the decision in In re B.G.: "If the participation of the foster parents, either through their testimony or by their presentation of other evidence, would have provided the court with relevant information as to [the child's] best interests, the court should have permitted their participation and considered the evidence presented." (54 Cal.App.3d at p. 1084, 127 Cal.Rptr. 178.)

                appear as parties in juvenile court proceedings.  Their standing should not depend upon the filing of a petition for guardianship, although the filing of such a petition may aid in attesting to their interest in the custody of the child;  nor should their participation be restricted to the limited role of an amicus curiae;  they should be permitted to appear as parties to assert and protect their own interest in the companionship, care, custody and management of the child."  (In re B.G., supra, 11 Cal.3d at p. 693, 114 Cal.Rptr. 444, 523 P.2d 244.)   The Court used the term "de facto parent" to refer to someone who "on a day-to-day basis, assumes the role of parent, seeking to fulfill both the child's physical needs and his psychological need for affection and care."  (Id. at p. 692, fn. 18, 114 Cal.Rptr. 444, 523 P.2d 244.)   The Court noted that the simple fact that a person cares enough to seek to participate goes far to suggest that the juvenile court would benefit by hearing his views as to the child's best interests, and that if the participant lacks a close relationship with the child that fact would undoubtedly emerge during the proceedings.  (Ibid.) 1
                

In Charles S. v. Superior Court (1985) 168 Cal.App.3d 151, 214 Cal.Rptr. 47, the court applied the rationale of the decision in In re B.G. to a person who did not meet the definition of a de facto parent. There the grandfather of a dependent child sought but was denied permission to participate in a permanency planning hearing. Although the grandfather was not a de facto parent since he had not maintained a day-to-day relationship with the child, the Court of Appeal concluded that he should be allowed to participate in the proceeding. For one thing, the grandfather had a compelling interest in participation since the proceeding could result in an order which would foreclose him from further contact with his grandson. Moreover, "[a] trial court should not restrict or prevent testimony ... but rather should avail itself of all evidence which might bear on the child's best interests." (Id. at pp. 156-157, 214 Cal.Rptr. 47.) The court noted, however, that neither a de facto parent nor a grandfather is entitled to be considered a "parent" or "guardian" for purposes of the Juvenile Court Law. (Id. at p. 156, fn. 4, 214 Cal.Rptr. 47.)

In Christina K. v. Superior Court (1986) 184 Cal.App.3d 1463, 229 Cal.Rptr. 564, a foster mother sought de facto parent status with respect to a review hearing. The county agency asserted that a person should not be considered a de facto parent until a "substantial" time had passed, meaning a period well in excess of six months. (Id. at p. 1466, 229 Cal.Rptr. 564.) The natural father asserted that a nonrelative should not be considered a de facto parent until the time for reunification with In In re Joshuia S. (1988) 205 Cal.App.3d 119, 252 Cal.Rptr. 106, the court considered the standard of proof applicable to a de facto parent determination. The court rejected a claim that clear and convincing evidence is required and concluded that the preponderance of the evidence standard is applicable. (Id. at 125, 252 Cal.Rptr. 106.)

                the child's natural parent had passed.  (Ibid.)  The Court of Appeal concluded that the juvenile court erred in

...