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In addition to guardianship proceedings, custody of a child is changed when the child becomes a dependent of the juvenile court.
There are several circumstances that may lead to the removal of a child from his or her parents to become placed as a dependent of the juvenile court. Some of these grounds are the removal of children who have suffered or are likely to suffer neglect, abuse, physical or sexual abuse. Welfare and Institutions Code § 300 Other situations include the inability of the parent or guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability or substance abuse. Welfare and Institutions § 300(b).
A child may also become a dependent of the court if the child's parent has become incarcerated or institutionalized and has been unable to arrange for care of the child during this period. Welfare and Institutions § 300(g)
As a grandparent-caregiver of a dependent child, you may be willing to care for the child until the father or mother is able to resume his or her parental responsibilities. One outcome of a dependency action is that a parent who fails to complete the requirements of a reunification plan or a family maintenance plan may lose custody of the child permanently. In that case, someone with temporary custody of a child must face the question of assuming a more long-range type of custody arrangement.
Even if you are unable to assume the care of the child, you may be able to assist the child's parent in getting services to help a child who is in danger of abuse or neglect. Family maintenance services, provided by the county welfare department, may be provided in order to maintain a child in his or her home. The parent must be willing to accept services and participate in corrective efforts. These services are limited to a six month period with a possible six month extension. The services are provided without regard to a parent’s income. Family maintenance services may also be provided to any individual or child referred to the county welfare department under section 11254 of Welfare & Institutions Code (an unmarried person under the age of 18 who is pregnant or has a dependent child in his or her care). The individual must be living with his or her parent or guardian in order to qualify for these services. Welfare and Institutions Code § 16506
Family maintenance services provide assistance in building self-esteem, handling stress and anger, child development, increasing communication skills for the parent and learning positive disciplinary skills.
If a child has been separated from his or her parent because of the above mentioned situations, family reunification services may be provided for a period of six months or one year (depending upon the child’s age) with a possible six month extension. These services may include a plan for visitation by the grandparents if it is in the best interests of the child and visitation will serve to maintain and strengthen family relations as a whole for the child. Welfare and Institutions Code § 16507(a)
Under California Welfare and Institutions Code § 361.3(a), the court must give preferential consideration to a request by a relative of the child for placement with that relative. Here, relative means a grandparent, aunt, uncle or sibling. Preferential consideration means only that the court must first look at placing the child in the home of a relative before placement in a non-relative foster home. It must be emphasized that giving relatives the highest priority of consideration does not guarantee placement. Again, the best interest of the child governs where the child will be placed.
In determining whether placing the child with a relative would be appropriate, the court must assess the ability of the relative to provide a secure and stable environment for the child. Under the statute, factors determining such an environment include but are not limited to: the good moral character of the relative, the ability of the relative to exercise proper and effective care and control of the child, the ability of the relative to provide a home and the necessities of life for the child, the ability of the relative to protect the child from his or her parents where necessary, the willingness of the relative to facilitate visitation with the child's other relatives and to facilitate reunification efforts with the parents, keeping siblings together in the same home, and the best interest of the child.
A grandparent or other relative with whom the child is placed may be ordered by the court to participate in a counseling or education program where the court decides such participation would be in the child's best interest. Welfare and Institutions Code § 362(c).
It is very important that the grandparent or other relative who is willing to take care of the child let the social worker and the court know of his or her interest as soon as possible. Although the statute does not specify when the assessment of a relative's placement request is to be made, if a relative waits too long before notifying the social worker and the court of his or her desire, the court may rule out relative placement.
In a case where a grandmother first informed the court that she wanted to have her grandchild live with her at the six-month review hearing, the court refused to act on her request at the twelve month review hearing. In In re Jessica Z., 225 Cal. App. 3d 1089, 275 Cal. Rptr. 323 (1990), the appellate court held that the juvenile court did not make a mistake in refusing to consider placement with a relative for a child who had bonded with foster parents and the mother did not request the placement until the twelve-month hearing. In this case, Jessica was born with drug withdrawal symptoms. Early the next day the mother, Irene, took Jessica and left the hospital. Authorities found Irene and an inadequately dressed Jessica hiding in front of a car parked behind a motel. Jessica was taken into protective custody. The Department of Social Services filed a dependency petition alleging that Irene had a history of severe drug abuse and was unable to remain drug free.
At the time, the grandmother and a maternal aunt were already caring for three other children of Irene's and were unable to take Jessica. Jessica was placed in a foster home. At the six-month review, a social worker reported that Irene's whereabouts were unknown and that she had failed to sign a reunification plan. The social worker also reported that Irene's mother recently "expressed her wish to care for the child." The social worker instructed the grandmother to attend the hearing, which she did. The grandmother told the judge that she wanted "to see if I can get custody or placement."
However, the court did not respond directly to the grandmother's request, and following the social worker's recommendation, directed that Jessica remain in foster care. At the twelve-month review, letters from Irene and her grandmother were attached to the report, urging that Jessica be placed with the grandmother. In her letter the grandmother wrote: "I feel it is important to keep a family together no matter what the circumstances. They should stay together as a family unit. In this case, I am a willing grandparent who wants to keep my family together—as it should be. I am aware that the foster parents want to adopt Jessica and I'm happy that they do and I really appreciate all they have done for her, but I feel it's not right for foster parents to adopt my grandchild, especially when I am willing to be the guardian and take care of her myself and keep her within the family." 225 Cal. App. 3d at 1096 The grandmother herself testified at the hearing that she had told the judge, the social worker, and Irene's lawyer that she wanted Jessica, but no one had taken any action.
The juvenile court decided that Irene should have requested relative placement sooner. It found that it would be detrimental to Jessica to remove her from her foster parents, agreeing with the social worker that the child had now bonded with the foster parents who wanted to adopt her.
On appeal, the court affirmed, concluding that relative placement was not appropriate at the twelve-month stage. It did criticize the juvenile court for not promptly ordering that the grandmother's placement request be assessed when she expressed her desire to have custody at the six-month hearing. However, the court refused to consider relative placement now that Jessica had been living with her foster parents for a year.
In another example, In re Robert T., 200 Cal. App. 3d 657, 246 Cal. Rptr. 168 (1988), the relatives did not express interest in having the child live with them until the court was about to terminate the mother's parental rights. This case involved a Native American child who lived with his mother in California before being made a dependent. In addition to factors already discussed, other factors enter into decisions involving custody of Native American children.
In Robert T., the social worker did talk first to the maternal grandmother about placing Robert with her. However, the grandmother herself had alcohol-related problems, poor health, and could not offer stable housing. The social worker looked for other extended family members to care for the child. When he did not hear from them, he placed Robert T. with a fost-adopt Native American family in California. It was not until the court was about to terminate the mother's parental rights that an aunt and uncle in New Mexico expressed interest in custody of Robert. By then, the child had settled into his fost-adopt home, and the court thought that it would be in his best interest to stay there.
In a third case where no relative immediately offered to take care of a dependent child, a court ruled that it did not have to consider placing a child with his aunt instead of terminating the parental rights of the father and putting the child up for adoption. In re Raymond H., 175 Cal. App. 3d 556, 221 Cal. Rptr. 165 (1985) involved a child born with drug withdrawal symptoms. The baby was immediately removed from the parents' custody because of the mother's heroin use, and was placed in a foster home. The social worker recommended termination of parental rights of both parents after the mother failed to complete the required drug counseling program and the father was incarcerated for a first-degree murder conviction. Although the court dismissed charges of unfitness to adequately care for the minor due to the father's incarceration and the mother's alcohol and drug dependencies, the court did rule that their parental rights should be terminated based on abandonment and failure to provide a home for the child. Welfare and Institutions Code § 366.21(e) The father objected to termination of his parental rights, arguing that the court should first consider "less drastic alternatives." He proposed that the court should instead consider placing Raymond with the father’s sister, who had a stable home and was willing to care for him.
The court said that it did not have to consider placing the baby with his aunt. The only "less drastic alternatives" it had to consider are social services that would make it possible for the natural parents to keep the child. The court found that since the father was facing a long prison sentence, he could not make use of these services. Moreover, Raymond’s aunt had never appeared at any proceedings involving the child, nor had she previously come forward in the three years since the child's birth to express any interest in Raymond.
The outcomes in the Jessica Z., Raymond H., and Robert T. cases illustrate that courts will treat a relative who is actively involved with the child differently from one who is not involved in the child's life.
The grandparent and the grandparent's advocates must be persistent in pursuing placement possibilities with the social worker and the court.
It is critical that a relative ask to be considered for placement soon after the child is made a dependent of the court.
In In re Rodger H., 228 Cal. App. 3d. 1174, 279 Cal. Rptr. 406 (1991), Rodger, a two year old child, needed around-the-clock care because of severe developmental problems. The social worker filed a petition to make him a dependent child of the court, alleging that his parents were "unable to cope with or provide for Rodger's medical care." A psychologist and case workers who tried to teach the parents how to care for Rodger's special needs reported that the child wasn't progressing because the parents were not able to give him proper at-home medical care.
Rodger's maternal grandmother attended the jurisdictional hearing. She asked the judge if he would appoint an attorney to represent her so she could try to have Rodger placed with her. The judge responded that he could not appoint counsel and told the grandmother that she should address the social worker about her ability to take care of Rodger's special needs. However, the social worker apparently never interviewed the grandmother or investigated the grandparent's home as an appropriate placement.
The Rodger court vacated the disposition order and remanded the matter back to the juvenile court to determine whether placing the child with his maternal grandparents was appropriate. The court deemed the grandparents' request for counsel to pursue placement in their home as a "sufficient request for placement under Welfare and Institutions Code § 361.3." 279 Cal. Rptr. at 412 Even though it appeared that the grandparents did not contact the social worker after the jurisdiction hearing, the court ruled that the grandparents had not knowingly waived their placement request. "We are particularly cautious to find a waiver by the grandparents of the right to have placement investigated, because the investigation is ultimately in the best interest of the minor." 279 Cal. Rptr. at 412
The Indian Child Welfare Act states that Native American children who are in foster care or who may be adopted should be placed first with a member of the child's extended family, second, with other members of the Native American child's tribe, or third, with other Native American families. In addition, they should be placed within a reasonable distance of their original home. U.S.C § 1901 et seq. The preference of the parents and whether the child has lived on Native American land would also be considered. In re Baby Girl A, 230 Cal. App. 3d 1611, 282 Cal. Rptr. 105 (1991) However, the Act applies regardless of the extent of the parent’s ties to the Native American Community. In re Alicia S., 65 Cal. App. 4th, 76 Cal. Rptr. 2d 121 (1998).
In a case where the grandparent attended all the hearings, the court held that not only do grandparents have standing to participate in juvenile court dependency proceedings, but so does "any blood relative who cares about the child's welfare."
In Charles S. v. Superior Court, 168 Cal. App. 3d 151, 214 Cal. Rptr. 47 (1985), the child was declared a dependent child and placed in foster care. His mother was periodically institutionalized in a mental hospital and his father was unknown. The mother's father, Charles, wanted to have his grandson placed with him. A social worker visited Charles' home, but did not recommend placement there after observing hostility between Charles and his daughter about the child. The juvenile court approved the placement of the child in a foster home and continued the placement at the six-month review hearing.
With the juvenile court's approval, Charles visited his grandson every week and attended all the hearings concerning his placement. However, the trial court presiding over the permanency planning denied him standing to participate in the hearing and denied his request to continue the weekly visitation. Charles was permitted to sit silently at the counsel table during the hearing.
The Court of Appeals issued a writ directing the trial court to allow Charles to participate in a newly scheduled permanency planning hearing in which he would be allowed to testify why he should be able to adopt the child. (The foster parents were not interested in adoption.) The court also approved Charles' request to resume his weekly visits with the child. Noting that the grandfather consistently maintained contact with his grandson and attended all the hearings, the court concluded that these actions demonstrated Charles' close relationship with the child.
Not only did the court recognize that the grandfather had standing, but it expanded standing to other relatives interested in the child. The court stated that entitlement to standing "is a matter of right which belongs to any blood relative who cares enough about the child's welfare to request the opportunity to participate." 168 Cal. App. 3d at 157 The court's reasoning was that the trial court should hear "all evidence which might bear on the child's best interest." Aunts, uncles, and siblings can use the Charles S. decision to obtain participation at the dependency hearing. However, the decision did not extend standing to non-relative caregivers of dependent children. For non-relative caregivers, read the discussion under questions 8 and 9.
If you have been taking care of a child on a day-to-day basis, acting as a substitute parent, you might be able to participate as a "de facto parent." California Rule of Court 1412(e) provides, "Upon a sufficient showing the court may recognize the child's present or previous custodians as de facto parents and grant standing to participate as parties in disposition hearings and any hearing thereafter at which the status of the dependent child is at issue." This may allow you, at the discretion of the court, to obtain appointed counsel.
The California Judicial Council defined a de facto parent as: "a person who has been found by the court to have assumed, on a day to day basis, the role of parent, fulfilling the child's physical and psychological needs for care and affection, and who has assumed that role for a substantial period." California Rule of Court 1401(a)(4). The California Supreme Court created the concept of a de facto parent in the case of In re B.G., 11 Cal. 3d 679, 114 Cal. Rptr. 444 (1974), to address the standing of non-parents who are interested in the welfare of the child in dependency cases. The Court recognized that these non-parent caregivers have relevant information that the court should hear in protecting the best interests of the child.
A de facto parent does not have all the rights of a natural parent or guardian. A de facto parent does not have an absolute right to the appointment of counsel. However, California Rule of Court 1412(e)(2) gives juvenile courts the discretionary authority to appoint counsel for de facto parents once they have received that status. In order to gain judicial recognition of that status, a person must obtain private counsel to argue this motion because the rule does not include the right to appointed counsel to bring a motion seeking de facto parent status.
In In re Hirenia C., 18 Cal. App. 4th 504, 22 Cal. Rptr. 2d 443 (1993), the appellate court reversed a juvenile court’s ruling that refused to grant de facto parent status. Hirenia had been placed in foster care with Angela Ranaldi and her partner, Emanuelle Rose. The two decided to try to adopt Hirenia together, but to use Angela’s name alone. In December of 1987, Emanuelle moved out of the home she had shared with Hirenia and Angela for five months. She continued to visit and care for Hirenia for the next three years. Specifically, Emanuelle took care of Hirenia at her own home about 130 days out of each year.
In 1991, Angela limited Emanuelle’s access to Hirenia to only one visit a week, and then cut off all contact. Emanuelle filed a Petition for Visitation Rights in November of 1991. The Juvenile Court ruled that Emanuelle did not have standing to bring the petition because she was not a de facto parent or a “person having interest in a dependent child.” In re Hirenia C., 18 Cal. App. at 512.
The appellate court noted that de facto parent status may be extended to people without an officially recognized status (like foster parent or guardian) and to people who care for a child on a less than full-time basis. Although Emanuelle had not been able to spend a lot of time with Hirenia after Angela’s change of heart, the court held that she could still be considered a de facto parent based on her past history of care and her solid relationship with the child who still called her “Mama”.
In In re Rachel C., 235 Cal. App. 3d 1445, 1 Cal. Rptr. 2d 473 (1991), the record alleged evidence that illegal drugs had been found in both the caretakers’ apartment and in Rachel’s bloodstream. Despite this, the appellate court held that the caretakers, by virtue of their long involvement in the child’s life, had unique information to offer the court which outweighed their misconduct. However, this liberal precedent did not last long. The case was overruled by In re Keishia E., 6 Cal. App. 4th 68, 78, 23 Cal. Rptr. 2d 775, 781 (1993), a case involving sexual abuse by the non-parent requesting de facto status. The court held when a child is taken into the jurisdiction of the juvenile court due to a “substantial harm” by the non-parental custodian, this “non-parental act” extinguishes any claim to de facto parental status.
In re Keisha E., only limits the availability of de facto parent status in circumstances where the caregiver has committed a “substantial harm”. For example, in In re Michael R., 67 Cal. App. 4th 150, 78 Cal. Rptr. 2d 842 (1998), the Appellate Court found that the lower court did not abuse its discretion in denying de facto parent status to a grandmother who placed the children at serious risk of harm. In this case, the harm was violating a court agreement that the abusive father be kept from his children.
The limitation does not apply when a caregiver may not be a suitable choice for custody, but has done nothing wrong. In In re Vincent C., 53 Cal. App. 4th 1347, 1356, 62 Cal. Rptr. 2d 224, 229 (1997), the Court of Appeals held that a grandmother who had cared for her grandchildren for three years was entitled to de facto parent status even though it had been determined that she could not adequately control or care for the children.
Foster parents, including grandparents who are foster parents, may be allowed to participate in a termination or dependency proceeding if they have been also acting as "de facto parents" of the child. This was the case in In re Kristin B., 187 Cal. App. 3d 596, 232 Cal. Rptr. 36 (1986), in which a little girl's parents argued that the court should not allow the grandparents to intervene. The judge stated that it was proper for the grandparents to participate since they were the child's foster parents and had been caring for the minor on a daily basis for almost two years. Given that experience, they would have much information to provide the court in its evaluation of the child's best interests. The court postponed the permanency planning hearing long enough for the grandparents to find a lawyer to represent them at the hearing.
When several relatives are concerned about a child, courts in different states may be involved. This is what happened in Guardianship of Donaldson, 178 Cal. App. 3d 477, 223 Cal. Rptr. 707 (1986), where the paternal aunt and the maternal grandparents each filed petitions for guardianship. The aunt was in California, and the grandparents were in Illinois. The California court ruled in favor of the aunt, and the Illinois court ruled in favor of the grandparents. The mother, who wanted her parents to have custody, appealed the California decision to a higher court in California. The higher court reversed the lower court's decision and ordered the lower California court to communicate with the Illinois court to resolve the problem. Without cooperating with the Illinois court and hearing both sides of the situation, the higher court said, the lower court could not have made a decision in the best interests of the child. If you are in a similar situation, you may want to remind the court that it should communicate with the court in the other state. If it does not do so, the decision may be invalid. Family Code § 3406
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