San Diego County Department of Social Services v. Francisca A.

Opinion

WIENER, Acting P. J. Francisca A., maternal grandmother of Patricia L., appeals a February 27, 1992, order terminating her “de facto parent” status. We conclude insufficient evidence supported the court’s ruling and reverse the order.

I.

Because this appeal concerns only Francisca’s “de facto parent” status, we do not set out a detailed discussion of the facts relating to Patricia. We focus on the facts relevant to Francisca’s relationship with Patricia and Francisca’s participation in the dependency process.

On May 7, 1987, shortly after Patricia’s birth, the court declared Patricia a dependent of the court based on a finding the child was bom with a [65]positive toxicology screen for cocaine and opiates. The court placed Patricia with Francisca, where she lived for the next three years. During this time, the court granted Francisca de facto parent status and appointed counsel to represent her.

In July 1990 the court determined Patricia’s mother had made significant progress and returned the child to her. About 10 months later, the department filed a supplemental petition, seeking to remove Patricia from her mother’s custody. On May 15, 1991, a disposition hearing was held on the supplemental petition. At that hearing the court granted Francisca’s counsel’s request to be relieved because she had “not talked to [Francisca], seen her, or [knew of] her whereabouts since July 1990 . . . .” At the conclusion of the hearing, the court removed Patricia from her mother’s custody and ordered Patricia to live with her maternal aunt.

In December 1991 the maternal aunt requested that Patricia be removed from her custody because she did not want to continue to be subjected to verbal abuse by the minor’s mother. Pursuant to that request, the department noticed a Welfare and Institutions Code section 387 hearing. Francisca attended that hearing and requested her de facto parent status be reasserted and an attorney reappointed. The court appointed counsel for Francisca, authorized visitation between Patricia and Francisca, but delayed considering whether Francisca’s de facto parent status should be continued. At the conclusion of the hearing, the court ordered Patricia to be placed in foster care.

On February 27, 1991, the court denied Francisca’s request for continued de facto parent status and retroactively terminated the status to July 1990, when custody was restored to the mother. The court reasoned that when it returned Patricia to her mother’s custody “the de facto parent’s status [was] necessarily altered by operation of law.” The court additionally said its conclusion was “bolstered” by the fact that Francisca failed to assert her de facto parent status at the “subsequent [section] 387 [hearing] removing custody from the mother to the maternal aunt.” In so ruling, the court did not conduct an evidentiary hearing, but rather relied on counsels’ oral and written arguments. The court reached its conclusion despite acknowledging there had been no “formal court order dissolving the previous status.”