Opinion
The juvenile court asserted jurisdiction over minor Bryan D. Bryan had been living with his maternal grandmother T.D. (grandmother) since he was an infant. On appeal, Bryan contends the trial court erred in denying grandmother’s motion to be deemed his presumed mother, or in the alternative, his de facto parent. He also contends there was insufficient evidence to support the juvenile court’s assertion of jurisdiction. We reverse the juvenile court’s de facto parent determination and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Bryan first came to the attention of the Orange County Social Services Agency (SSA) in June 2010. At the time, then 12-year-old Bryan was living
A social worker investigated the report and interviewed Bryan at his home. Bryan appeared healthy, free of bruises or marks, and appropriately dressed. He told the social worker he had lived with grandmother since he was three months old and that his mother had been unable to care for him. He said grandmother left for Guerrero, Mexico, 10 or 11 days earlier to see family. He also told the social worker grandmother had once before left him at home for around one week when she went to El Salvador and Guatemala. When the social worker asked who was in charge of him in grandmother’s absence, Bryan said their roommate Maria T. and grandmother’s brother, Manuel D., were also at the house. Bryan reported that Maria T. fed him in the morning and after school; he said grandmother had not asked Maria T. to watch over him, but grandmother knew Maria T. would do it. Bryan said Manuel D. worked from 3:15 p.m. to 11:30 p.m. Bryan did not have a contact number for grandmother in Mexico. He denied that grandmother trafficked illegal aliens.
The social worker interviewed Maria T. Maria T. said this was the third time grandmother had left Bryan at home alone. In the preceding three months, grandmother had also left Bryan home for a three-day period and again for a week and a half. Maria T. thought grandmother had gone to Los Angeles but did not know where she was. Maria T. denied grandmother had spoken to her about taking care of Bryan in her absence. She admitted she sometimes offered Bryan dinner when she was feeding her own three children because she “[felt] bad not offering,” and he never declined. Maria T. left the house at 7:30 a.m. for work and did not return until 7:00 p.m. She did not know if Manuel D. fed Bryan. She also reported that Manuel D. was not home from Saturday until Monday morning. That week, Manuel D. had returned home late on Friday night, picked up Bryan and took him to the home of one of grandmother’s daughters, and Bryan returned home late on Sunday. Maria T. did not have contact information for any of Bryan’s family members.
The social worker was initially unable to reach Manuel D. on his cell phone. Although he briefly returned home while the social worker was there, he immediately left before the social worker realized he was at the house; he told Bryan and Maria T. he could not stay because he had to go to work. When Manuel D. eventually returned the social worker’s call, he told the social worker that grandmother had asked him to take care of Bryan. He took Bryan to school every morning and made sure there was food for him aftеr
The social worker also spoke with Bryan’s mother, D.D. (mother). Mother told the social worker that she became pregnant with Bryan while in Mexico en route to the United States, but she never told the father that she was pregnant and he had no knowledge of Bryan’s existence. Mother was 17 years old when Bryan was bоm. Mother reported that grandmother beat her while she was pregnant with Bryan. When Bryan was three months old, mother ran away from home to escape grandmother’s physical abuse. After mother ran away, grandmother insisted that mother return with Bryan. According to mother, when she returned one month later, grandmother pulled her out of a car by her hair, took Bryan away from her, and took him into her house. Grandmother refused to return Bryan to mother and she eventually left the house without him.
Mother claimed she had periodically asked grandmother to return Bryan but grandmother refused. When Bryan was two years old, grandmother moved to Orange County and mother lost track of them. When Bryan was five years old, grandmother asked mother to sign a form so that he could enroll in school. Mother signed a document but said she did not know what it was. Mother said grandmother had threatened her with “paperwork” when mother tried to take Bryan home, and that grandmother told mother she had given up her parental rights by signing the document. Bryan thought grandmother was his mother until approximately two years earlier when his maternal aunt told him D.D. was his biological mother and grandmother subsequently confirmed this was true.
Mother reported she did not have a good relationship with grandmother and spoke with her only once a month about Bryan. Although Bryan had stayed with her the previous weekend, she did not know grandmother had left for Mexico. When Bryan told mother that grandmother was in Mexico, mother assumed grandmother was in “Tijuana Baja California.” She had no information about who was in charge of Bryan in grandmother’s absence, and she had no contact number for grandmother in Mexico. Mother lived in Los Angeles and did not know how to drive, so she did not know when she could make it to Orange County to pick up Bryan.
The juvenile court in Orange County detained Bryan and placed him with his maternal great-uncle. For a July 2010 jurisdiction and disposition report, a social worker again interviewed him. Bryan said living with his grandmother was “excellent.” He was able to talk to grandmother and tell her how he felt, and she bought him things he needed or wanted. When he did something wrong, he and grandmother would have a conversation. Bryan denied any form of abuse. However, he reported he did not like the conflicts between his mother and grandmother that had just started. He explained that mother did not want him when he was a baby and told grandmother she could keep him. Bryan did not want to live with mother permanently because, he explained, “she only wants to get the money that the government gives me, cause I don’t feel comfortable living with her, because she didn’t want me when I was little.”
Bryan said grandmother had gone to Mexico for a funeral, and had left him with Manuel D. and Maria T, to whom he referred as “the renter.” Bryan also admitted grandmother had left him in March to go to El Salvador. Grandmother left Bryan with Manuel D., who took him to school every day. Bryan walked home after school and waited for “the renter” to give him food, or he made food for himself. Grandmother bought food for him before she left, and she also left $50 for him if he needed additional food. Bryan said he visited mother around twice per month. He reported that grandmother was the “important person” in his life and that he wanted to live with her.
Grandmother told SSA she had asked Manuel D. and Maria T. to take care of Bryan while she was in Mexico. She gave Maria T. $50 for this purpose and ¿Iso gave Bryan $50 for food, “just in case.” Grandmother reported Maria T. admitted she had lied to the social worker when she denied taking care of Bryan because she was undocumented and feared being deported. According to grandmother, Manuel D. told her he had “taken off” because he thought SSA and the police were after him due to his child support obligations; his ex-wife had recently threatened to report him to the police.
Mother told SSA that she had not had the courage to confront grandmother in order to get Bryan back. She again recalled that when she was pregnant with Bryan, grandmother threatened her, hit her, and made her sleep on the floor. Mother admitted she had signed a document when Bryan was five years old so that he could go to school and to the doctor. She denied signing a second letter of custody or guardianship.
SSA recommended the juvenile court sustain the dependency petition and transfеr the case to Los Angeles County, where mother lived and where Bryan was now placed with the maternal great-uncle and great-aunt. Mother was not present at the jurisdiction hearing. She submitted on the petition through counsel. The petition alleged grandmother left Bryan with no caretaker or provision for support for at least 10 days and had not left a contact number where she could be reached. The petition further alleged grandmother had previously left Bryan without adequate supervision or provision for support and that her actions placed Bryan at risk. The petition alleged mother knew or reasonably should have known grandmother was leaving Bryan unsupervised and that mother failed to protect Bryan, thereby placing his health and safety at risk. The petition also alleged mother had failed to maintain a consistent rеlationship with Bryan, failed to provide for his basic needs, and she should have known he was at risk of being physically abused by grandmother since grandmother had physically abused her, yet she took no action to protect him.
The juvenile court asserted jurisdiction over Bryan and transferred the case to Los Angeles County. Grandmother subsequently filed a request that she be considered Bryan’s de facto parent. At a September 2010 hearing in the Superior Court for Los Angeles County, the court appointed counsel for grandmother. The court indicated it would grant grandmother’s de facto parent application, but mother objected. The court then stated it understood grandmother would be seeking presumed parent status and asked counsel to file a noticed motion.
In the meantime, the Los Angeles County Department of Children and Family Services (DCFS) filed a disposition report. According to the report,
Bryan told DCFS “he considers his maternаl grandmother to be his mother because she has raised him his whole life. He states that he knows his biological mother and he cares about her and would like to continue having a relationship with his mother but wants to return to the care of his grandmother.” He said he had known “for a long time who his biological mother was but can’t recall how he found out.”
In October 2010, grandmother and Bryan filed written motions asking the court to deem grandmother Bryan’s presumed mother. Grandmother submitted a supporting declaration in which she represented she had cared for Bryan since his birth and was his sole caretaker until he was removed by SSA. Grandmother declared she had provided Bryan with all necessities, including shelter, education, food, and clothing, and she ensured he received medical care, including all immunizations. Grandmother detailed where Bryan had attended school and indicated she met with all of his teachers and attended all open houses and parent-teacher conferences. She paid for daycare when Bryan was an infant and she was working. She also provided for Bryan’s recreation and entertainment. Bryan spent time with grandmother’s family members, including his great-grandparents, and family in El Salvador and Texas, as well as with Bryan’s aunt in Oregon. Grandmother stated members of their community witnessed the care she provided to Bryan.
In his motion, Bryan argued grandmother had cared for him since he was an infant because mother was not interested in taking care of him. He asserted he wished to return to live with grandmother, and that he considered grandmother his “actual and psychological” parent.
Mother opposed the motions, contending grandmother could not properly be deemed a presumed mother under Family Cоde section 7611, subdivision (d).
DCFS reported significant animosity between mother and grandmother. DCFS opined that Bryan had been unable to build a close relationship with mother because grandmother was “over possessive.” DCFS recommended mother receive family reunification services, and that grandmother receive “family reunification like services,” including that she be ordered to participate in a parenting program, individual counseling, and conjoint counseling with mother and Bryan.
At the November 2010 disposition hearing, the court heard the presumed mother motions. By this time, Bryan was 13 years old. The court denied both the presumed mother and de facto parent motions and relieved grandmother’s counsel.
In its dispositional rulings, the court ordered DCFS to make efforts to process a waiver so that grandmother might be considered as a relative placement for Bryan. The court ordered DCFS to provide reunification services to mother, but denied Bryan’s request that grandmother receivе similar services. However, the court ordered DCFS to facilitate conjoint counseling for Bryan, mother, and grandmother. Grandmother was to have “reasonable, monitored visits,” and DCFS had the discretion to liberalize those visits.
This appeal followed.
DISCUSSION
I. Substantial Evidence Supported the Juvenile Court’s Jurisdictional Findings
Bryan contends the juvenile court erred in denying grandmother status as his presumed mother, or in the alternative, de facto parent status. DCFS has declined to take a position on either issue. Neither mother nor grandmother has entered an appearance in this appeal.
A. Substantial Evidence Suрported the Juvenile Court’s Ruling Denying Grandmother Presumed Mother Status
“Under the dependency law scheme, only mothers and presumed parents have legal status as ‘parents,’ entitled to the rights afforded such persons in dependency proceedings, including standing, the appointment of counsel and reunification services. [Citations.] In an appropriate case, a man or a woman who is not a child’s biological parent may be deemed his or her ‘presumed parent.’ [Citations.]” (In re M.C. (2011)
California’s Uniform Parentage Act, Family Code section 7600 et seq., sets forth how a parent and child relationship may be established.
Although section 7611, subdivision (d) refers to “paternity,” it is now well established that the provision, along with other provisions of the Uniform Parentage Act, may also apply to women under some circumstances. Section 7650, subdivision (a) provides: “Any interested person may bring an action to determine the existence or nonexistence of a mother and child relationship. Insofar as practicable, the provisions of this part [(Uniform Parentage Act)] applicable to the father and child relationship apply.” Thus, in the context of same-sex relationships involving two women, courts have
However, in nondependency contexts, some courts have concluded section 7611, subdivision (d) will not apply to deem a woman a child’s presumed mother where the biological mother is present and asserts an interest in the matter, such that there are competing maternity claims. (Scott v. Superior Court (2009)
We need not decide whether the juvenile court could properly apply section 7611, subdivision (d) to give grandmother presumed mother status. Even if section 7611, subdivision (d) applied, we would still conclude substantial evidence supported the ruling denying grandmother presumed mother status. (M.C., supra,
As noted above, under section 7611, subdivision (d), a person may be deemed a “presumed parent” if he or she receives the child into his or her home and openly holds out the child as his or her natural child. There is no dispute that grandmother received Bryan into her home. It is also undisputed
The only evidence in the record even suggesting grandmother held Bryan out as her natural child came from mother’s interviews with SSA and DCFS. Mother told SSA and DCFS that Bryan believed grandmother was his mother until he was nine years old, when his maternal aunt told him grandmother was not his mother. Bryan told DCFS he had known the identity of his biological mother for a long time, but he did not remember how he found out. Even if Bryan at some point believed grandmother was his mother, this was no longer true, and had not been true for years before the dependency proceedings began.
In In re Jose C. (2010)
B. The Juvenile Court Abused Its Discretion in Denying Grandmother De Facto Parent Status
“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 . . . .’ [Citations.] The denial of a petition for de facto parent status is reviewed for abuse of discretion. [Citation.] ‘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.’ [Citation.]” (In re Jacob E. (2004)
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 ‘asserting] and protecting] their own interest in the companionship, care, custody and management of the child’ (In re B.G. [(1974)]
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].” (In re Patricia L., supra, 9 Cal.App.4th at pp. 66-67; see D.R., supra,
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. In In re Kieshia E. (1993)
The Kieshia E. court disapproved of In re Rachael C. (1991)
Here, the juvenile court indicated it was denying grandmother de facto parent status because “[u]nder the statutory structure of de facto parent, a parent—а person who has a sustained petition in this case, specifically, cannot be a de facto parent.” But in our view, Kieshia E. does not stand for the proposition that any time the conduct of a person who would otherwise qualify as a de facto parent directly or indirectly causes the initiation of dependency proceedings, that person is automatically ineligible for de facto parent status, regardless of the nature of the conduct. Kieshia E. explicitly focused on “sexual or other serious physical abuse” that led to dependency proceedings. Subsequent cases have extended Kieshia E.’s analysis to conduct other than sexual or physical abuse, but these cases still concern serious and substantial harms to the children involved.
For example, in In re Michael R. (1998)
In contrast to the above cases, grandmother’s conduct here was not equivalent to “sexual or other serious physical abuse.” Grandmother’s childcare arrangements for Bryan were inadequate. Further, grandmother either did not leave her contact information with those she left in charge, or they denied having the information when it was critical that they reveal they had it. Yet, when SSA got involved, Bryan was healthy and appropriately drеssed. From what the social worker could see of the house, it was “clean and adequately furnished.” Manuel D. said grandmother had asked him to take care of Bryan, and he apparently did so except when he was at work in the afternoon and evenings.
Moreover, Bryan was 12 years old, not an infant. Unlike the 12 year old in Merrick V, Bryan was not marked or bruised in any way. There was no evidence that he had missed any school, was late to school, or was in places he should not have been.
We acknowledge that in Leticia S., the court at one point describes Kieshia E. as holding “thаt 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.) Elsewhere in the opinion, however, the court quotes Kieshia E.’s actual language which is that “ ‘[o]nce there is an adjudication that a child is within the jurisdiction of the juvenile court because a nonparental caretaker committed a substantial harm, such as sexual or other serious physical abuse, which is fundamentally at odds with “the role of parent,” the perpetrator’s “protectable interest” ... is extinguished.’ ([Kieshia E.], supra,
Similarly, in D.R., the court noted: “An applicant for de facto parent status is automatically disqualified if he or she caused harm to the minor.
In re Vincent C. (1997)
The Court of Appeal found the juvenile court abused its discretion in denying the motion. The appellate court concluded the factors favoring de facto parent status were present in the case and there was no evidence the grandmother had committed a substantial harm to the children. As such, the court noted that “where a grandparent or other close relative has cared for a dependent child for an extended period of time and has never done anything to cause substantial or serious harm of any kind to that child, there ought to be a very good reason for denying de facto status—particularly where, as here, the caretaker concedes that she is no longer able to care for the children herself and simply asks to be heard regarding their future placements.” (Vincent C., supra,
We also note that a de facto parent is “not considered a parent or guardian for purposes of the dependency law. [Citations.] Therefore, the de facto parent is not entitled to all of the rights accorded to persons who occupy the status of parent or guardian.” (In re Jody R. (1990)
We conclude that under the circumstances of this case, the juvenile court abused its discretion in denying grandmother de facto parent status because there was no substantial evidence that she had betrayed or abandoned the parental role, that she had subjected Bryan to serious abuse, that she had inflicted substantial harm on Bryan, or that she had acted in a manner fundamentally inconsistent with the parental role such that she lost the privilege of participation in proceedings concerning Bryan. The lack of such substantial evidence is implicitly acknowledged in the juvenile court’s order that DCFS make efforts to process a waiver for grandmother so that she could
DISPOSITION
The juvenile court’s order denying grandmother de facto parent status is reversed. In all other respects, the judgment is affirmed.
Rubin, J., and Grimes, J., concurred.
Notes
Although mother reported she had never told Bryan’s father she was pregnant, he did not know of Bryan’s existence, and she had no information regarding his whereabouts, the petition also included allegations that the father knew or should have known Bryan was at risk for neglect in grandmother’s care and that he had failed to maintain a relationship with Bryan, or provide for his basic needs.
See footnote, ante, page 127.
We agree with Bryan that he has standing to raise these issues on appeal. (In re Karen C. (2002)
All further statutory references are to the Family Code, unless otherwise noted.
Bryan relies on K.M. v. E.G. (2005)
This case therefore differs from Salvador M., in which the child’s half sister was deemed his presumed mother. In Salvador M., the half sister had for the most part held the child out as her son. Only the half sister’s family and school officials knew the half sister was not the child’s natural mother. The child was eight years old. He still believed the half sister was his mother and referred to her as “mom” when speaking with the social worker. (Salvador M., supra,
In Merrick V., the court acknowledged that the question of the grandmother’s ineligibility for de facto parent status as to the 12 year old was closer than it was for his toddler siblings, given the lengthier relationship he had with the grandmother, and the fact that he was at less risk of substantial harm than his siblings because of the significant difference in their ages. (Merrick V., supra,
The discussion regarding a “waiver” appeared to refer to the assumption that on the basis of the sustained petition, grandmother would now be listed in California’s Child Abuse Central Index. (See Pen. Code, § 11170; Welf. & Inst. Code, § 361.4, subd. (c) [whenever a child may be placed in the home of a relative who is not a licensed foster parent, the social worker must first check the Child Abuse Central Index].)