California Cases September 19, 2023: J.B. v. Superior Court

Case Description

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NOT TO BE PUBLISHED

Humboldt County Superior Court No. JV2200221.

SIMONS, J.

Petitioner J.B. (petitioner) filed a petition for extraordinary writ relief after the juvenile court set a Welfare and Institutions Code section 366.26 permanency planning hearing regarding the minor, J.G. (Minor), born July 2018. This court stayed the section 366.26 hearing and issued an order to show cause. Real parties in interest Minor and C.W. filed an opposition to the writ petition, which we deemed a return to the order to show cause. Real party in interest the Humboldt County Health and Human Services Department (Department) also filed a response, which declined to "take a

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position on the substantive merits of the" writ petition but did "not oppose" placement of the Minor with petitioner. We deny the petition on the merits.

The underlying dependency proceeding arose out of tragic circumstances. In December 2022, the Minor witnessed the murder of both her parents at home. Petitioner is Minor's maternal aunt. Petitioner was present at the time of the murders; she was shot, seriously injured, and kidnapped during the incident; and the murderer/assailant was her domestic partner of over 20 years and the father of her child.

The juvenile court placed Minor in the care of a maternal relative and then in the care of an adult paternal half brother, and the court took jurisdiction over Minor under section 300, subdivision (g). In April 2023, petitioner requested that the court find she is a presumed parent of Minor under section 7611, subdivision (d). The brief in support of her request asserted that petitioner "has assumed a parental role to the minor since her birth, and has been and is a second mother to her." At a hearing later in April, the juvenile court designated petitioner a de facto parent but did not rule on the request for presumed parent status. Petitioner also filed a section 388 petition seeking placement of Minor with her under section 361.3.

As the proceeding approached disposition, the Department took the position that Minor should remain placed with her paternal half brother. In

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the alternative, the Department supported placement with petitioner due to the close relationship between petitioner and Minor, with reservations due to the circumstance that petitioner was also injured in the incident resulting in the murder of Minor's parents. Subsequently, Minor's half brother withdrew from consideration as a permanent placement; he instead recommended placement with paternal cousin N.O. (not involved in the present appeal). In response, the Department recommended placement with N.O. Minor's counsel requested that Minor be placed with a paternal aunt, C.W., in San Diego County.

In May 2023, the juvenile court conducted a multi-day disposition hearing to determine the appropriate placement for Minor. The court considered the Department's reports, testimony from Department social workers, testimony from Minor's family members (including petitioner and C.W.), expert testimony from Minor's therapist, and expert testimony and a report from a consulting psychologist. Among other things, the psychologist stated in her report, "[Minor] needs an environment that feels safe, secure, and permanent.... It is essential . . . that she is not shocked by information or by scary people connected with any events that occurred. In other words, whoever was involved in any part of what happened that day is probably not the best candidate to adopt [Minor] now. [Minor] should not run into people who knew her parents, or see kids who know about the murder, or hear people talking about it in town, or be around when the trial takes place and everybody is upset and talking about it." The psychologist acknowledged the close relationship between petitioner and Minor, but she observed, "I have been concerned about the immediate presence of what happened between them and how overwhelmed they both feel by it....[A]n adult in her grief can impede the child's grief, if she is not far enough along. For [petitioner]

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and [Minor] to help each other, [petitioner] has to be much further along in her process than [Minor] is, or she will unintentionally prevent [Minor] from working through her experience." The psychologist and Minor's therapist made similar observations in their testimony.

In June 2023, the juvenile court determined that placement with paternal aunt C.W. was proper under section 361.3, and the court scheduled a section 366.26 permanency planning hearing. The court ordered that Minor be placed with C.W. "immediately." The court also denied petitioner's request to be declared Minor's presumed parent and terminated petitioner's de facto parent status. The order terminating de facto parent status stated, "The court finds that there is a changed circumstance that no longer supports de facto parent status ...."

In her writ petition, petitioner first contends the juvenile court erred in denying her presumed parent status. Section 7611, subdivision (d) provides that a person is a presumed parent if he or she "receives the child into their home and openly holds out the child as their natural child." The party seeking to be named presumed parent bears the burden of making the required showing. ( In re Salvador M. (2003) 111 Cal.App.4th 1353, 1357.) Among other things, petitioner testified Minor resided in her home for the first two months of her life, along with the minor's parents, and that she regularly saw and cared for Minor thereafter. But petitioner's testimony also indicated she did not claim she was Minor's mother until after Minor's parents were murdered and she did not hold Minor out as her child. Petitioner testified she felt like Minor was her daughter, "[b]ecause my sister is not here to do it and the close relationship that I've had with [Minor] all of her life." Similarly, she testified, "I do feel like I am her mom now that my sister is gone." Petitioner was asked, "Have you ever indicated to anyone

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that you are a mother or something akin to a mother to [Minor]?" She responded, "It's been indicated that I'm a second mother. I've not really said that I'm her mother, but I feel like all my actions show that I've taken care of her like she's my daughter." (Cf. E.C. v. J.V. (2012) 202 Cal.App.4th 1076, 1089 ["It . . . is undisputed that appellant referred to the minor as her daughter at work and in front of friends and family."].) Indeed, petitioner concedes in her petition that Minor "clearly knows the identity of her biological mother," and Minor's therapist testified Minor never referred to petitioner as her mother. (Cf. Salvador M. , at p. 1358 ["the most compelling evidence that appellant held [the minor] out as her own son" was "the fact that eight-year-old [minor] believed appellant was his mother"].)

Consistent with her testimony, petitioner's argument for presumed parent status is based on the substantial parental-like care she previously provided Minor. It is undisputed that petitioner provided a great deal of care and support for Minor prior to the parents' murder, and that the Minor and petitioner have a very close relationship. But that is not sufficient to establish presumed parent status. The declarations submitted by petitioner indicate that the declarants thought petitioner took care of Minor "like a" mother, but not that petitioner held Minor out as her natural child. Under petitioner's reasoning, any deeply involved relative or friend could claim presumed parent status. Petitioner cites no authority supporting that proposition. The juvenile court did not err in denying petitioner's request for presumed parent status.

Petitioner also argues the trial court erred under section 361.3 in placing Minor with C.W. instead of with her. "Section 361.3 gives 'preferential consideration' to a request by a relative of a child who has been removed from parental custody for placement of that child.... The

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preference applies at the disposition hearing and thereafter 'whenever a new placement of the child must be made.'" ( In re M.H. (2018) 21 Cal.App.5th 1296, 1302-1303.) Here, in May and June 2023, the juvenile court changed Minor's placement and considered three possible other relative placements- maternal aunt petitioner, paternal aunt C.W., and maternal cousin N.O. The court was required to consider the appropriateness of each placement under eight non-exclusive factors listed in section 361.3, subdivision (a), the first of which is "The best interest of the child, including special physical, psychological, educational, medical, or emotional needs." (§§ 361.3, subds. (a), (a)(1), (b).)

The juvenile court thoroughly explained its reasoning in its written ruling. The court stated, "Upon considering all evidence and analyzing the factors pursuant to [section] 361.3, it is the Ruling of the Court that [C.W.'s] and her husband's home is the best placement for the minor and in the minor's best interest and that the [C.W.] family is intending to adopt the minor. In balancing the factors of [section] 361.3, the [C.W.] family meets or exceeds the factors in their ability to care for the minor; including, but not limited to: They have no other minor children; they are retired and can dedicate the many hours it will take to assist the minor in overcoming this traumatic event; they will follow all directions of the professionals in dealing with the minor's emotional and psychological needs; they will ensure that the minor has contact with appropriate family members when the minor is ready; they have the resources to provide all recommended activities for the minor; and they can give the minor the distance the minor needs while she starts a new life after the tragic events that took her parents away." In explaining why placement with C.W. was preferable to placement with petitioner, the court stated, "In reliance on the opinions of the professionals, this Court has

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determined that it is in the best interest for this four-year-old Minor to leave Humboldt County where she can start over in a safe environment that has all the resources to assist her in recovering from the event. The Court has no doubt that [petitioner] loves the minor dearly, but sometimes love is not enough. [Petitioner] is entirely too close to the murder and the murderer (although he is in jail now and she testified she no longer is in a relationship with him) with whom she had a domestic abuse relationship for years, including physical and psychological abuse and including a stabbing just prior to the murders. [Petitioner] needs to heal herself before she can begin to assist in healing the psychological damage that has been done to the minor, and, by her own words, she acknowledged that she would 'put the minor's emotional needs ahead of her own,' which in the end will hurt both her and the minor."

In arguing the trial court abused its discretion ( In re Robert L. (1993) 21 Cal.App.4th 1057, 1067), petitioner asserts, "Although the written ruling indicates the factors were analyzed, there is no evidence [that] shows that the placement selected met more of these prongs than" petitioner. But, even assuming petitioner satisfied more of the listed statutory factors, petitioner cites no authority the placement decision must be based on a comparison of which placement has a greater number of factors in its favor. That mechanical approach would be particularly inappropriate in the highly unusual circumstances of the present case. (See id. at p. 1068 ["the 'best

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interests of the child' is the linchpin of the analysis"].) The juvenile court's decision is well-reasoned and grounded in the experts' recommendations and Minor's unique needs; petitioner has not shown an abuse of discretion.

Finally, petitioner contends the juvenile court erred in terminating her de facto parent status without notice or opportunity to be heard. The 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." ( In re Patricia L. (1992) 9 Cal.App.4th 61, 66.) "To terminate de facto parent status, the department has the burden of establishing a change of circumstances which no longer support the status, such as when a psychological bond no longer exists between the adult and the child.... [I]f the department believes such status is no longer warranted, it must file a noticed motion to that effect allowing the court to hold a hearing." ( Id. at p. 67.)

In the present case, there is no dispute that petitioner was properly named a de facto parent in April 2023. Petitioner argues, and the real parties in interest do not dispute, that there was no motion to terminate her de facto parent status and no opportunity for any party to present evidence on the issue. We agree the juvenile court erred in terminating de facto parent status in the absence of a motion or any showing by the Department. In their opposition, real parties in interest Minor and C.W. argue any error was harmless because petitioner fully participated in the multi-day contested

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disposition hearing. We agree the error was harmless with regard to the setting of the section 366.26 hearing-because petitioner's status was terminated at the same time the hearing was set, she was not denied opportunity to be heard on the issue. Nevertheless, we will reverse the court's order terminating petitioner's de facto parent status.

DISPOSITION

The petition for extraordinary writ relief is granted in part and denied in part on the merits. (Cal. Rules of Court, rule 8.452(h).) The juvenile court's order terminating petitioner's de facto parent status is reversed. The court's remaining orders, including the setting of a section 366.26 hearing, are affirmed. The stay of the section 366.26 hearing previously imposed by this court is lifted. This decision is final immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b).)

We concur. JACKSON, P. J., CHOU, J.