Opinion
I. INTRODUCTION
Defendant and appellant, S.L., was granted de facto parent status of twins, a boy and a girl, who were bom prematurely and were medically fragile. Plaintiff and respondent, San Bernardino County Children and Family Services (CFS), removed the twins from S.L. on February 17, 2013, when the twins were 23 months old and had been living with S.L. and her family for 14 months, and placed them with a couple who were willing to adopt them. The twins were removed solely because S.L. and her husband had once hesitated to adopt them, even though the L.’s renewed their commitment to adoption before the twins were removed and, by all accounts, the twins were strongly bonded to the L. family and the L.’s had taken outstanding care of the twins.
At the March 5, 2013, Welfare and Institutions Code section 366.26 1 hearing, the juvenile court refused S.L.’s noticed request to return the twins to her care, vacated her de facto parent status, and denied her request for appointed counsel. S.L. claims the court violated her procedural due process rights to be heard and present evidence.
We reverse the March 5, 2013, orders to the extent they refused to return the twins to the L.’s and allow them the chance to adopt the twins. We also reverse the court’s related April 25, 2013, order summarily denying S.L.’s section 388 petition seeking the return of the twins. On this record, it appears the court completely failed to consider, at the March 5 hearing, whether the twins’ removal and new placement were in their best interests. Remand is necessary for the court to consider whether it is in the twins’ best interests to be returned to the L.’s, and that the L.’s be given a chance to adopt them, based on the twins’ circumstances on remand.
The twins were bom medically fragile at 25 weeks’ gestation in 2011. 2 They were taken into protective custody in November 2011, when they were nine months old, after the male twin suffered a nonaccidental femur fracture in the mother’s custody and was failing to thrive. The mother was incarcerated and charged with child cruelty. 3 (Pen. Code, § 273a, subd. (a).)
CFS placed the twins with S.L., who cared for them from November 2011 until February 17, 2013, when CFS removed them from S.L.’s care. S.L. was a “stay-at-home mom”; her husband, Mr. L., worked in the family-owned furniture store and helped care for the twins. The L.’s 16-year-old daughter also helped care for the twins. S.L. was appointed to hold the twins’ educational rights so the twins could receive Inland Regional Center services.
A November 2012 status report stated the twins had made “tremendous progress developmentally,” had “a strong and healthy bond” with S.L. and her family, and S.L. and Mr. L. had agreed to adopt the twins. On November 5, the mother’s services were terminated and a section 366.26 hearing was set for March 5, 2013.
In December 2012, S.L. told CFS she “didn’t think” she and Mr. L. could adopt the twins. But by January 23, 2013, S.L. was committed to adoption and filed a de facto parent request and statement. In an attachment, S.L. explained why she had hesitated to commit to adoption: she and Mr. L. were having marital problems during 2012, and by November -2012 they were unable to reconcile their differences after 20 years of marriage. By December 2012, S.L. decided the twins would be “better off with [a] full family unit.” But “[a]fter much thought and prayer,” S.L. changed her mind and was committed to adopting the twins because it would be “cruel and devastating” to remove them from “the only home and family that they have known.” On January 28, the court signed an order granting S.L.’s de facto parent request. 4
Notwithstanding SJL.’s de facto parent status, CFS removed the twins from S.L.’s care on February 17, 2013, and placed them in a prospective adoptive home following a 10 day “pre-placement visit[]” with the prospective adoptive parents. The prospective adoptive parents were in their early
CFS filed its section 366.26 report on February 25, 2013. By this time, the twins were 23 months old and were reported to have made “rapid developmental gains” over the previous several months. Speech therapy was the only service they were still receiving; their speech was “slowly emerging”; and they were “walking, running, jumping, climbing and getting into everything.” They were able to feed themselves, helped dress themselves, and enjoyed playing with a variety of toys. They were “beginning to attach” to their new foster parents who were “thrilled” to have them and willing to adopt them.
Also on February 25, 2013, S.L. filed a caregiver information form, advising the court that she and Mr. L. very much wanted to adopt the twins. In an attached letter, Mr. L. explained that both twins required 24-hour care during the first nine months of their placement, and when he and S.L. were first asked to make the decision about adoption, they hesitated because they and their family were “physically and emotionally exhausted” from caring for the twins. The twins’ medical appointments had been “numerous and lengthy,” the male twin had been on 24-hour oxygen, and “[fjor months [the family] ran [from] one store to another just to get one can” of the dietary formula the twins needed. Mr. L. and his family loved the twins and the twins loved them. Mr. L. and S.L. had reconciled their marital differences and their 20-year marriage was strong and stable. Both the case manager and the foster care social worker from the Hugs Foster Family Agency wrote letters to the court recommending that S.L. and Mr. L. be allowed to adopt the twins.
At the March 5, 2013, section 366.26 hearing, S.L. and Mr. L. appeared, requested court-appointed counsel, and asked that the twins be returned to their care. The L.’s told the court they were no longer hesitant to adopt the twins and told the social worker they were committed to adoption before the twins were removed from their care on February 17. The social worker explained that the L.’s had waited until November 2012 to “finally” decide they were willing to adopt, but changed their minds in December 2012, saying they “didn’t think” they could adopt. For that reason, in December 2012, CFS advised the L.’s that it would try to find an adoptive family for the twins. A prospective adoptive family was found, and the twins were placed with that family on February 17.
The twins’ counsel argued that S.L.’s de facto parent status was “moot” because the twins had been removed from her care. The court agreed, saying the removal of the twins rendered S.L.’s de facto parent status “a nonissue.” Regarding S.L. and Mr. L.’s renewed willingness to adopt the twins, the court said: “Too bad. You can’t treat children like they’re possessions. They’re
The court terminated parental rights and chose adoption as the twins’ permanent plan. County counsel then made an oral motion to “vacate” S.L.’s de facto parent status on the ground “it just terminates by operation of law when the child is adopted.” S.L. opposed the motion and asked the court to appoint counsel to represent her in seeking to adopt the twins. The court vacated S.L.’s de facto parent status and denied her request for appointed counsel.
On March 18, 2013, the court reinstated S.L.’s de facto parent status by signing an order granting a section 388 petition by the twins’ counsel. The petition explained; “De Facto Parents were not given an opportunity to be heard when De Facto status was terminated and they wish to maintain status as De Facto Parents.”
On April 25, S.L. filed a section 388 petition seeking the return of the twins to her care. In her petition, S.L. stated she had appealed the March 5 orders, sought visitation with the twins pending her appeal, and claimed that returning the twins to her would be better for them because she and Mr. L. shared a strong bond with them and were well equipped to care for them. The L.’s had raised two children, and as a stay-at-home mom S.L. could offer the twins the “special life” they deserved. By contrast, the new prospective adoptive parents were “two busy working young adults,” and the twins had been “thrust into day care” after 14 months of one-on-one care with the L.’s.
The court summarily denied S.L.’s April 25 petition without a hearing. On form JV-183 (Court Order on Form JV-180), the court wrote, “Defacto status was reinstated,” but did not check any of the printed boxes on the form to indicate that it was denying the petition or why it was denying the petition. In any event, the court did not set a hearing on the April 25 petition. S.L. appeals the court’s March 5 and April 25 orders.
III. DISCUSSION
S.L. claims the court erroneously failed to exercise its discretion and also denied her procedural due process rights in summarily denying her section 388 petition without a hearing. She claims she presented sufficient evidence to warrant a hearing on her petition seeking the return of the twins to her care, including that the twins were bonded to her and her family and would suffer significant harm if not returned.
At the March 5 hearing, the court treated the issue of the twins’ removal from the L.’s as a contest between the twins’ counsel and CFS, who favored the twins’ removal and their new adoptive placement, and the L.’s, who were seeking the twins’ return and the opportunity to adopt them. The court apparently lost sight of S.L.’s primary role as a de facto parent—providing information to the court concerning the twins’ best interests. (See
In re Patricia L.
(1992)
A. The De Facto Parent Doctrine
In the seminal case
In re B. G., supra,
“ ‘De facto parent’ means 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.” (Rule 5.502(10).) A person
Relevant factors the court should consider in determining whether to grant a de facto parent request include whether the child is psychologically bonded to the adult, whether the adult has assumed the role of a parent on a day-to-day basis for a substantial period, whether the adult possesses information about the child that other participants do not possess, whether the adult has regularly attended juvenile court hearings, and whether a future proceeding may result in an order permanently foreclosing any future contact with the adult.
(In re Patricia L., supra, 9
Cal.App.4th at pp. 66-67;
In re Giovanni F.
(2010)
De facto parents do not have the same substantive rights and preferences as parents or even legal guardians.
(R.H. v. Superior Court
(2012)
De facto parents have significant
procedural
rights in dependency proceedings, including (1) the right to be present at hearings, (2) the right to be represented by retained counsel, and in the discretion of the court, appointed counsel, and (3) the right to present evidence and be heard.
(In re P.L., supra, 9
Cal.App.4th at p. 1361; rule 5.534(e).) The extent of a de facto parent’s right to present evidence depends on the relevant circumstances.
The key reason for affording de facto parents standing to appear and participate is so they may provide critical information that assists the court in determining what disposition is best for the child. (See In re B. G., supra, 11 Cal.3d at pp. 692-693.) As explained in In re B. G.: “The 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.)
B. Reversal Is Required Because the Record Is Inadequate to Permit Meaningful Review
Reversal of the court’s March 5 and April 25, 2013, orders is required—to the extent the orders refused to return the twins to the L.’s—because it is unclear from the record whether the court considered the best interests of the twins in denying S.L.’s request for their return at the March 5 hearing.
In re M.V.
(2006)
Following an evidentiary hearing on the petition, the court expressed concern that the de facto parent and her husband had minimized M.V.’s
The M.V. court found the juvenile court’s factual findings inadequate to support a finding of changed circumstances, or that the proposed placement change was in M.V.’s best interests. (M.V., supra, 146 Cal.App.4th at pp. 1059-1060; § 388.) The de facto parent and her husband (M.V.’s original foster parents) both testified they realized they made a serious mistake in leaving 20-month-old M.V. alone with the dog and their 14-year-old daughter, and were willing to remove the dog from their home. (Id. at p. 1060.) Nothing in the record contradicted their testimony that the dog would not remain in their home. (Id. at p. 1061.) But because the juvenile court commented only on M.V.’s undisputed injuries, and none of the other evidence presented at the hearing, it was unclear from the record whether the court found the original foster parents’ testimony not credible or simply failed to consider it. (Ibid.)
More importantly, the critical question the juvenile court had to determine was whether M.V.’s change of placement was in his best interests, but nothing in the record showed the court had even considered M.V.’s best interests.
(M.V., supra,
Accordingly, the
M.V.
court concluded that the juvenile court’s factual findings were inadequate to permit meaningful appellate review of the order granting the agency’s section 388 petition.
(M.V., supra,
The
M.V.
court reasoned that when a juvenile dependency proceeding involves a young child’s out-of-home placement, “it is obvious that
time is of the essence,”
and the lengthy delay in hearing the de facto parent’s appeal “seriously hamper[ed]” the appellate court’s ability to ensure that M.V.’s best interests were protected.
(M.V., supra,
This case is strikingly similar to
M.V.,
except that here CFS did not file a section 388 petition to approve its removal of the twins from S.L., after S.L. became the twins’ de facto parent. (Cf.
M.V., supra,
At the March 5 hearing, there was no section 388 petition pending and the court placed CFS under no obligation to show, by a preponderance of the evidence, that changed circumstances supported the twins’ removal, or that the removal was in their best interests. (§ 388.) To be sure, it was undisputed that the twins were removed from the L.’s because the L.’s had hesitated to adopt them after telling CFS, in November 2012, that they were willing to adopt. As this court has recognized, a de facto parent’s hesitation to adopt a dependent child, standing alone, is sufficient to support a change of placement order.
(In re P.L., supra,
But here, it is unclear from the record that the court made any effort to determine or even to consider whether it was in the twins’ best interests to be removed from the L.’s and placed with the young couple in their 30’s, who
The court should have been acutely aware that the removal of the twins from the L.’s—or the removal of
any
young children from the only caretakers they had ever known—risked causing them significant psychological damage. (See
Katzoff
v.
Superior Court
(1976)
S.L.’s de facto parent status was by no means “a nonissue” at the March 5 section 366.26 hearing. Once the court granted S.L.’s de facto parent request, CFS could not terminate her de facto parent status without filing a section 388 petition and showing by a preponderance of the evidence that changed circumstances warranted the termination
and
that the termination was in the best interests of the twins.
(In re Patricia L, supra, 9
Cal.App.4th at p. 67;
In re Leticia S., supra,
Worse, the court completely disregarded the information S.L. had to offer on the most important issue the court had to determine: whether the removal of the twins from S.L. and not affording the L.’s the opportunity to adopt was in the twins’ best interests.
(Katzoff v. Superior Court, supra,
54 Cal.App.3d at pp. 1083-1084 [court abused discretion in refusing to consider any evidence from the de facto parents concerning whether continued placement of child with them was in the child’s best interests].) During the entire hearing, the court did not once mention or refer, even obliquely, to the “strong and healthy bond” the twins had with the L. family, or to the “tremendous progress” they had made under the care of the L.’s. Instead, the court lectured the L.’s that the twins were not “possessions,” though no one had ever suggested the L.’s had treated the twins like possessions. The court treated the removal issue as an adversarial contest between CFS and the twins’ counsel, who supported the removal and new placement, and S.L., who was seeking the twins’ return and a chance to adopt
The court also gave short shrift to S.L.’s request for appointed counsel, denying the request on the ground the court had just vacated S.L.’s de facto parent status. Though an indigent de facto parent has no
right
to appointed counsel (see
In re Joel H.
(1993)
In summary, on this record we cannot say that the juvenile court did not abuse its discretion in refusing to order the twins returned to the L.’s at the March 5 hearing and allow the L.’s the chance to adopt the twins.
IV. DISPOSITION
The March 5 and April 25, 2013, orders are reversed to the extent they approved the February 17, 2013, removal of the twins from the care of their de facto parent, S.L., and denied S.L. and her husband the chance to adopt the twins. The matter is remanded to the juvenile court with directions to reconsider whether to place the twins with the L.’s and allow the L.’s a chance to adopt the twins, in light of the twins’ current circumstances and best interests on remand.
(M.V., supra,
Miller, 1, and Codrington, 1, concurred.
Notes
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
At birth the twins had numerous medical concerns, including bacterial and lung infections. Each twin was at risk for vision and hearing impairment, brain bleeding, cerebral palsy, sudden infant death syndrome, and learning disorders.
The mother is not a party to this appeal. An alleged father, A.O., denied paternity and no other possible father was identified.
Mr. L. did not join S.L.’s de facto parent request and did not file his own de facto parent request.
All further references to rules are to the California Rules of Court.