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In Re Bryan D., A Person Coming Under the Juvenile Court v. T.D

September 13, 2011

IN RE BRYAN D., A PERSON COMING UNDER THE JUVENILE COURT LAW. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, PLAINTIFF AND RESPONDENT,
v.
T.D., DEFENDANT; BRYAN D., APPELLANT.



(Los Angeles County Super. Ct. No. CK79878) APPEAL from a judgment of the Superior Court of Los Angeles County. Stephen Marpet, Referee. Affirmed in part, reversed in part.

The opinion of the court was delivered by: Bigelow, P. J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

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 with grandmother. The SSA received an anonymous call alleging grandmother had been gone for 12 days and had left Bryan home alone. The caller also reported that grandmother trafficked undocumented people into the United States and was often gone for days at a time, leaving Bryan alone.

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 after school. He understood that Bryan went to a friend's house after school, but he did not know who the friend was or where he or she lived. Manuel D. also said grandmother told him Maria T. was in charge of feeding Bryan, although he did not know if grandmother actually spoke with Maria T. about feeding Bryan every day. He did not know when grandmother planned to return and had no contact information for her. Manuel D. reported he left the home every day at 2:45 p.m., and returned between 10:00 p.m. and 1:00 a.m., but said Bryan was never alone because either he or Maria T. was home.

The social worker also spoke with Bryan's mother, D.D. 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 born. 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.

Bryan was taken into protective custody. While the social worker was taking him to a children's home, she overheard him speaking to mother. The social worker reported in the SSA detention report: "It appeared to the undersigned that the mother told the child he would be staying with her permanently because the child repeatedly kept saying 'no, no I want to stay with you only until my grandma comes back.' Eventually the child began to cry while insisting that he wanted to continue living with the maternal grand-mother. The undersigned asked the child why he did not want to go live with mother and he stated that 'because it is boring there, and my grandma takes me places and my mom does not go anywhere' 'plus I am use[d] to living with my grandma.' "

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 also 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. Grandmother said she and mother had never gone to court to formalize her custody of Bryan, but mother signed custody and guardianship letters giving grandmother custody of him. Grandmother provided two of the letters.

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 transfer the case to Los Angeles County, where mother lived and where Bryan was now placed with the maternal great uncle and 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 relationship 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.*fn2

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, mother regretted not seeking legal custody of Bryan sooner. Mother was "aware her son considers his grandmother to be his mother but she would like the opportunity to gain his trust and love." Grandmother told DCFS she too regretted never securing legal custody of Bryan. She also told DCFS "she is the only mother Bryan has ever known [and] it saddens her to think that he could be taken away so abruptly." Since mother had never wanted Bryan, grandmother never thought to try to get legal custody of him. She denied that she physically abused mother or that she took Bryan without mother's consent. Grandmother continued to maintain that she left Bryan with Manuel D. and Maria T., and that they did not admit they were in charge of him because they feared the police. She also said Manuel D. had her contact information in Mexico.

Bryan told DCFS "he considers his maternal 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 ...


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