Fresno Cnty. Dep't. of Spcial Servs. v. B.L. (In re A.R.), F084519

In re A.R., et al., Persons Coming Under the Juvenile Court Law.

FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. B.L. et al., Defendants and Appellants.

F084519

California Court of Appeals, Fifth District

January 13, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Fresno County Super Ct. Nos. 21CEJ300403-1, 21CEJ300403-2, 21CEJ300403-3 21CEJ300403-4 Todd Eilers, Commissioner.

Brenda Cantu Hook for Defendants and Appellants.

Daniel C. Cederborg, County Counsel, and Carlie Flaugher, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

MEEHAN, ACTING P. J.

Maternal grandparents M.L. (grandmother) and B.L. (grandfather) (collectively, the grandparents) appeal the juvenile court's order summarily denying their request for de facto parent status of their grandchildren A.B.R. (born August 2012), A.J.R. (born March 2015), E.R. (born August 2018), and A.R. (born July 2021) (collectively, the children). On appeal, the grandparents contend the juvenile court's order denying their request must be reversed and the matter remanded so that the court can conduct a hearing on their request. We reverse the court's orders denying de facto parent status and remand.

FACTUAL AND PROCEDURAL BACKGROUND

I. Voluntary Family Maintenance

A. First Referral

In July 2021, the Fresno County Department of Social Services (the department) received a referral on behalf of the children alleging general neglect by T.L. (mother) after she tested positive for methamphetamine, amphetamine, and marijuana at A.R.'s birth. After leaving the hospital, mother went to stay at the grandparents' house. Mother reported she was having problems with A.J.'s father^[1] and had a "weak moment," and had not taken her mental health medication for over a year. She denied having a drug problem, but was open to receiving services and wanted help. The department made a temporary plan for the children until a team decisionmaking meeting could be held, which consisted of mother leaving the grandparents' home. Grandmother expressed frustration. She stated their home was the only home the children knew. She said mother "'fested up'" about her drug use and A.R. was "not hooked to any substances."

At the team decisionmaking meeting, the department discussed mother's substance abuse and mental health problems with mother and the grandparents. Mother reported she began using methamphetamine as a teenager and used on and off thereafter.

Grandmother became aware of mother's drug use after A.R.'s birth. Mother had been diagnosed with bipolar disorder and postpartum depression after A.J.R.'s birth. Grandfather felt she needed help with her mental health problems. The grandparents expressed desire to help. The family accepted voluntary family maintenance services and the children were placed in a safety plan with the grandparents. They agreed they would not allow mother to have unsupervised contact with the children until the department deemed appropriate.

In August 2021, the department held a staffing meeting after mother tested positive for methamphetamine again. Mother denied drug use. She had missed several drug tests and the team discussed how they could help her stay compliant with testing. Grandmother noted that "when you throw a mentally ill person on the streets, the first thing they are going to want to do is use." She said the children were not being abused, were "perfectly safe" in her care, and were with her 90 percent of the time. The social worker reminded grandmother that mother was allowed to be around the children as long as it was supervised and had been testing negative for drugs. However, now that she tested positive, mother would need to leave the home. Grandmother became defensive and did not want to hear what the social worker had to say.

Later that month, the social worker called grandmother to ask about mother. Grandmother reported mother was "up and down." The social worker informed her that because mother was not drug testing, mother would need to be supervised around the children. Grandmother said she was taking care of the children and "did not want to hear it all again," but agreed with the social worker. Mother was reportedly living outside of the grandparents' home at the time.

B. Second Referral

In September 2021, the department received a referral alleging grandmother had been allowing mother to have unsupervised contact with the children. The reporting party stated that C.G. was recently at the home with mother for four days and they would hide from the social worker during visits. It was alleged mother had A.R. with her "'nonstop'" and sent C.G. a text message stating she could not take care of him. C.G. allegedly had text messages and photographs showing mother was still using methamphetamine and when C.G. tried to leave the home, mother left A.R. alone in the house and attempted to run C.G. over with her car. Law enforcement responded to the home and grandmother took A.R. No charges were pressed, and C.G. left.

A social worker went to the grandparents' home to investigate the referral. Grandmother appeared nervous. The social worker asked if mother was there. Grandmother said that she was, but was only "grabbing a few things." The social worker spoke to mother and asked why she was at the grandparents' house when she was not supposed to be. Mother said she was "grabbing a few things" and had not been there long. Mother appeared agitated and denied she had been caring for the children. She said the children were always with grandmother. The social worker asked mother about the incident with C.G. Mother denied the allegations, but admitted she was still using methamphetamine. The social worker reminded her she was not supposed to be around the children until she tested negative for all substances. Mother said she understood. The referral was ultimately deemed inconclusive.

C. Third Referral

In November 2021, a social worker went to grandmother's house after mother tested positive for methamphetamine again. The social worker informed grandmother about the positive test result. The social worker was concerned about grandmother's inability to tell when mother was under the influence. Grandmother said that prior to mother's mental health diagnosis she could "definitely tell," but not after her diagnosis. She reported she had not seen mother be manic in weeks and did not think mother was under the influence. The social worker asked how she felt knowing mother was putting the children's safety at risk. Grandmother said all she cared about was the children's safety and she knew they were safe because they were with her all the time. Although mother was around the children daily, grandmother said it was always supervised. The social worker told grandmother it was important that mother not come around the children because she could not tell when mother was under the influence. The social worker informed her that if mother tested positive again, she would have to leave the home. Grandmother responded, "'Fine then she'll leave, I just care about the kids.'"

Thereafter, the department received another referral after A.J.R. reported mother hit him with a phone that left him with a mark. A.J.R. told a police officer that mother dropped a phone on him and caused the mark. The officer and social worker initially decided to place the children on a Welfare and Institutions Code section 300^[2] hold, but the officer changed his mind after speaking to grandmother, who reported she was the one who accidentally hit A.J.R. with the phone. The officer determined there was not enough evidence to place the children on a section 300 hold.

The following day, a social worker spoke to A.J.R. at school to ask about the incident. She had a difficult time understanding him due to his mask and speech impairment. He reported mother hit him with a phone and began cursing afterwards. He said the incident happened at mother's home while grandmother was at work.^[3] E.R. was also there. The social worker asked him how he felt about returning to mother's home and he said he did not feel good about going with her because she sometimes hit him, but he did feel good returning to grandmother's care. The social worker also spoke to A.B.R., who gave a different version of events, stating A.B.R. fell off the couch and landed on his face. However, she did say mother was present. She reported she felt safe at the grandparents' home and also felt safe when mother was around.

The social worker next spoke to grandmother and mother, who also provided two very different stories as to how A.J.R. was injured. The social worker informed them that mother tested positive for drugs again and advised them that due to mother's continued drug use, mother would have to leave the home. The social worker told grandmother she did not seem concerned about mother's drug use while caring for the children and said mother could not visit the home again until she tested negative for drugs. Mother was upset and said she needed to call someone because "she felt like using."

Three days later, the department held a team decisionmaking meeting as a result of the recent events. The team shared concerns over mother's continued drug use and A.J.R.'s injury. Grandmother reported mother was no longer in the home and she was now taking the matter as seriously as possible. She felt mother had been manipulating her and now communicated with her through grandfather and maternal uncle. The social worker did not feel it was appropriate or safe to continue voluntary family services because mother continued to use drugs and grandmother had minimized the substance use. Grandmother admitted she had minimized mother's drug use. She said mother had been...