Filed 9/29/16 In re A.C. CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Butte)
                                                            ----



In re A.C., a Person Coming Under the Juvenile Court                                         C077046
Law.

BUTTE COUNTY DEPARTMENT OF                                                         (Super. Ct. No. J36897)
EMPLOYMENT AND SOCIAL SERVICES,

                   Plaintiff and Respondent,

         v.

A.G.,

                   Defendant and Appellant.



         Alicia G. (mother) appeals from the juvenile court’s order granting de facto parent
status to Valarie C., the maternal great-aunt of minor A.C. (Welf. & Inst. Code, § 395,
subd. (a)(1).)1 Mother challenges the constitutionality of allowing de facto parents to act
as parties in juvenile dependency cases, calling it a violation of parents’ due process
rights under the federal and state Constitutions. Mother also contends that the




1   Undesignated statutory references are to the Welfare and Institutions Code.

                                                             1
appointment of Valarie C. as a de facto parent was an abuse of discretion. We shall
affirm.
                                      I. BACKGROUND
          On February 19, 2013, a section 300 petition was filed in Santa Clara County
regarding the two-year-old minor. The petition alleged mother left the minor with
roommates for over 10 days without provisions for the minor’s care and supervision, and
mother’s and the alleged father’s whereabouts were both unknown.
          A report filed for the initial hearing stated that maternal great-aunt Kathi D. and
her husband had taken custody of the minor in early February 2013 in Paradise (Butte
County), California, from an adult female who said mother had left the minor with her in
January 2013. Kathi D. said she could no longer care for the minor because of the
minor’s “disturbing behaviors,” and because mother, a substance abuser with untreated
mental health problems, had frequently called and threatened Kathi D.’s life.
          The minor’s father, Daniel C., was allegedly incarcerated for 10 years.2
          Another maternal great-aunt, Valarie C., who lived in Paradise, California, had
requested consideration for placement of the minor. Valarie C. stated that mother was
estranged from her family, had older children who lived with their father in Concord,
California, and had abandoned this minor multiple times.
          A new section 300 petition, filed March 8, 2013, added the allegations that father
was incarcerated and not eligible for parole until October 2016; mother had a criminal
history and a substance abuse problem; and mother was arrested in February 2013 for
possession of a controlled substance and battery. Further, it was found that mother and
father had a history of severe domestic violence, to which the minor had been exposed.




2 Daniel C. was declared the minor’s presumed father, but voluntarily waived
reunification services. He is not a party to this appeal.

                                                2
       On June 12, 2013, the juvenile court sustained the allegations of the section 300
petition as amended.
       The jurisdiction/disposition report recommended granting reunification services as
to mother, bypassing them as to father (§ 361.5, subds. (b)(12), (e)(1)), and transferring
the case to Butte County, where mother lived.
       Mother stated that she and the father of her older children were married, but had
not lived together since 2007. In 2008, she became romantically involved with Daniel C.,
who had allegedly abused her physically and emotionally.
       Mother was jailed on February 22, 2013, for battery and possession of a controlled
substance. The charges remained pending.
       Mother reported that she was a longtime abuser of alcohol, marijuana, and
methamphetamine. She tested positive for amphetamine, marijuana, and
methamphetamine on March 7, 2013. She had a history of high blood pressure and
believed she also had hepatitis C.
       Mother was removed from her own mother’s care in early childhood and lived
with her grandparents until age 14, when she moved in with her aunt and uncle in
Paradise. She began therapy at age 11. She had been diagnosed with bipolar disorder.
She became addicted to Lamictal after it was prescribed for her. In early 2013, when she
stopped taking it, she began to have seizures, accompanied with hallucinations and
blackouts, which continued to the present. She had also been prescribed Klonopin.
       Mother believed she needed help and wanted to get sober and start services
immediately. Her extended family was very supportive, although her substance abuse
had alienated her from them.
       Maternal great-aunt Valarie C. and maternal great-uncle Nick C. were being
assessed for relative placement. They would be interested in legal guardianship if
needed.



                                             3
       The minor was placed with Valarie C. and Nick C. on March 14, 2013. She had
done well in their home physically, but seemed emotionally distressed. According to
Valarie C., nighttime phone calls from mother had upset the minor so much that they had
been stopped. The minor needed reassurance that the great-aunt and great-uncle would
not abandon her. They were trying to establish a stable routine to help her feel safe.
       Valarie C. and Nick C. reported ongoing difficulty with mother since they took the
minor in. When mother visited, she would “bad mouth” other family members in front of
the minor, even saying she wanted to “kill” certain family members because they had
“kidnapped” the minor. Valarie C. suspected mother was using substances when she
visited. Eventually, structured visits in the community were set up; so far, one such visit
had occurred.
       Valarie C. filed a police report on March 31, 2013, due to harassing phone calls
from mother. The case worker reported that mother refused to take responsibility for her
actions and blamed others for her current situation.
       Mother claimed she had begun an outpatient substance abuse program, but the
social worker had not been able to confirm this information. In text messages to
Valarie C., mother admitted she was still using alcohol and Oxycontin.
       The social worker felt mother needed strong boundaries, including an inpatient
program and visits supervised by staff in a controlled setting.
       Subsequent reports stated that mother intended to stay in Butte County. The minor
was doing well in preschool, but remained anxious about abandonment and had begun
therapy.
       As of July 8, 2013, Valarie C. and Nick C. requested a change of placement for the
minor because Valarie C.’s health was deteriorating. The minor would be moved to a
foster family concurrent home in Chico while the social worker assessed other potential
placements.



                                             4
       At the contested jurisdictional hearing on July 12, 2013, the Santa Clara County
Juvenile Court found the allegations of the amended petition true. The court adjudged
the minor a dependent child of the court, granted reunification services and supervised
visitation to mother, and ordered mother to complete a residential drug treatment program
and obtain a domestic violence victims support group.
       On August 13, 2013, the Santa Clara County Juvenile Court ordered the case
transferred out to Butte County.
       On October 11, 2013, Butte County Department of Employment and Social
Services, Children’s Services Program (the Department) recommended acceptance of the
transfer in. The minor was placed in a certified foster home in Chico and was being
assessed by Butte County Behavioral Health.
       Mother was currently homeless. She had done an alcohol and drug assessment
(AOD). While awaiting admission to a residential treatment facility, she had been
referred to outpatient substance abuse services and directed to attend daily community
support group meetings. Mother reported struggles with depression and bipolar disorder.
She had failed to appear for a random drug test, and her transient lifestyle made such
testing difficult to conduct.
       The disposition report, filed November 1, 2013, recommended continued out-of-
home placement for the minor and reunification services for mother. Mother had regular
supervised visits with the minor. The minor’s unsupervised visits with Valarie C. and
Nick C. had been placed on hold during the case transfer; since the transfer, there had
been one further such visit.
       At the disposition hearing on December 12, 2013, the juvenile court adopted the
findings and recommendations of the disposition report. The court set the six-month
review hearing on April 15, 2014.
       The six-month review report recommended further reunification services for
mother. The minor was doing well in placement, but still received therapy for “anxiety

                                             5
and sadness.” Mother was making progress in services, but still needed the structure of a
residential treatment program; after completing that program, she needed to obtain
suitable housing, maintain sobriety, and show that she could function in society.
       Mother was currently on 36 months of formal probation following convictions of
felony vehicle theft and receiving stolen property in October 2013. She was in a
residential treatment facility and reported being clean for 130 days. After completing six
months of treatment in April, she would continue as an outpatient while seeking her own
residence. She had drug tested negative for probation. She was currently unemployed
and applying for SSI. As her recovery progressed, her visits with the minor had
improved.
       Mother was recently diagnosed with hepatitis C and was waiting to begin
Interferon treatment. She was also seeking diagnosis and treatment for a variety of other
health concerns.
       Having unexpectedly lost a sister in September 2013, mother had become closer to
her biological mother and stepfather. Mother now wanted to maintain sobriety and gain
strength from her family.
       At the combined six-month and 12-month review hearing on April 15, 2014,
maternal great-aunts Valarie C. and Kathi D. appeared, but were asked to leave the
courtroom after mother’s counsel asserted that they were not supportive of mother. The
juvenile court advised them to contact the Department if they had information for the
court that would be helpful for the minor. The court then adopted the findings and
recommendations of the six-month review report.
       Also on April 15, 2014, Valarie C. filed a request for de facto parent status. She
stated that the minor had lived with her and she had had day-to-day responsibility for the
minor’s care from February 2013 to August 2013, with monthly visits thereafter. She
claimed that she had information about the minor that others might not have, to wit:
“Some [m]edical, behavioral, history while living w[ith] her mother, [half] brother and

                                             6
[half] sister. History while in a relationship with [the minor’s] father.” In an attachment,
she stated further:
       “[The minor] is my biological great n[ie]ce. Alicia [G.] is her mother. There’s 33
years of history re [mother] that at times directly affe[c]ts [the minor]. [The minor] was
detained originally by Santa Clara CPS. They contacted my husband and I inquiring [sic]
us to take [the minor] as care givers. With the S[anta] Clara [social worker] attending a
phone conversation [mother] made to myself, [mother] asked if my husband Nick and I
[would] care for [the minor] while she went to rehab, [to get] clean and sober and take
care of her legal matters. Because of [mother]’s escalating drug, alcohol & mental health
issue we were NOT on good terms. [Mother] apologized for everything and [the minor]
came to live w[ith] Nick and myself. I got [the minor] enrolled w[ith] a counselor . . . at
Behavioral [H]ealth, attempted to get [the minor] settled emotionally, address her health
. . . , as well [the minor] was enrolled by ourselves [into] Pee Wee Preschool part time.
During the entire time [the minor] was w[ith] us [mother] taunted, har[]assed, threatened,
lied about us, etc. [The minor] bonded emotionally with myself and my husband Nick. I
was at her birth. [Mother] is apparently calling the shots[,] i.e. that I can visit [the minor]
1 [time] month[l]y supervised. This is not in [the minor’]s best interest. We are not kept
up re [the minor] on any level. In court on [April 15, 2014,] I was asked to leave as
[mother] states I am not a support. During her drug us[e,] she wouldn’t allow us to be a
support to her. [The minor] is our main concern.”
       On April 17, 2014, maternal great-aunt Kathi D. wrote to the juvenile court in
support of the de facto parent request.
       On April 18, 2014, the juvenile court placed Valarie C.’s request on calendar.
       The de facto parent request was heard on June 5, 2014. Mother and father
opposed the request; the Department and the minor did not.
       Mother’s counsel asserted that Valarie C. had no information sufficiently current
to assist the court. Furthermore, there was a battle within the family, and mother did not

                                               7
even want Valarie C. and Kathi D. in the courtroom, let alone participating in the
proceedings.
       The Department’s counsel argued that it would not be in the minor’s best interest
to have her ties to Valarie C. severed, which might happen if de facto parent status were
denied.
       Called to testify, Valarie C. stated that she was present at the minor’s birth. She
and her husband had custody of the minor from February or March 2013 to the beginning
of August 2013. She had previously had contact with the minor when the minor was in
Kathi D.’s care, and prior to that “for many months until there was a falling out between
[mother] and [Valarie C.] regarding personal situations of [mother’s] living conditions
with [the minor]’s father.”
       For about a year, Valarie C. did not have consistent contact with the minor, despite
making efforts to see her. When Valarie C. did have contact, Kathi D. would bring the
minor to Valarie C.’s house, or she would go to Kathi D.’s house, for full-day visits on
consecutive days.
       When Valarie C. had custody of the minor, she and her husband got the minor into
therapy as soon as possible because of her evident insecurity; they also arranged medical
and dental care and got her into part-time preschool on the therapist’s recommendation.
“It was a day-to-day, every-day situation of trying to meet the needs of [the minor]
emotionally, medically and just try to provide an environment for her to be a child.”
       Currently, Valarie C. and her husband were restricted to one hour per month
visitation. At each visit the minor stated that she was “not done;” she wanted them to
stay. The last time, she said to the foster mother: “I want grammy to come with me.




                                             8
Can grammy come to my house? Grammy, you come.” The social worker told Valarie
C. that mother made the decision to restrict visitation to once a month.3
       Valarie C. understood that the case was in the reunification stage. If granted de
facto parent status, she would respect the fact that the goal was to reunify the minor with
mother.
       According to Valarie C., mother was not on good terms with the family. Valarie
C. called mother in October 2013 because of the sudden illness of mother’s sister. They
had not spoken since. Mother had not contacted her, and she would not know how to
contact mother.
       When Valarie C. had custody of the minor, mother “taunted, harassed, threatened,
[and] lied about” Valarie C. and her husband. There was “a constant barrage of phone
calls,” in-person harassment, and threats in text messages and on Facebook. Mother
charged falsely that Valarie C. and her husband were on drugs, that they murdered
mother’s sister (who actually died after a major stroke), and that they kidnapped the
minor. Valarie C. asked for the minor to be moved out of her home not only because of
her own health concerns, but also because the minor was not thriving due to “the constant
dynamics from” mother.
       Valarie C. sought de facto parent status because she and her husband were
previous caregivers of the minor, attended all hearings until told by the Butte County
social worker that they could not do so, and “possessed and do possess” information
about the minor. She had met the current foster parents before the minor was moved to




3 The Department’s counsel stated that the juvenile court had ordered the current
visitation schedule in November 2013, allowing only for supervised visitation for Valarie
C. and her husband, after mother’s counsel had requested that there be no visits between
Valarie C. and the minor. The court agreed with this account.

                                             9
their home; since then, she had met them at visits with the minor. She did not have
current information about the minor, other than what the minor shared in visits.
       The juvenile court ruled as follows:
       “Well, the Court did benefit from the testimony and the questions by counsel.
And reviewed the provisions of the CEB and having previously read cases discussing the
de facto parent status and its role in the juvenile dependency proceedings, and it seems
that the goal is the avenue to become a de facto parent is to provide the privilege to a
person who has developed a relationship with the child where there’s bonding[,] and from
that relationship information that can assist the Court in meeting the child’s needs[,] and
to help protect the independent interest of a person who developed a history of
companionship and care while they have custody of the child[,] and that those views can
be—where they can be of assistance to the Court, that they are available to be considered
by the juvenile court, that the Court here finds that there is a bond that is established
between [Valarie C.] and [the minor]. It’s substantial in that it started at birth and
developed consistently over time through substantial contact and care by [Valarie C.] for
[the minor], and it’s a recent bond that [Valarie C.] is pursuing ongoing contact with [the
minor] and that their visits are going well from what the Court sees from the report and
testimony. [Valarie C.]’s involvement in [the minor]’s life seems to be a comfort to [the
minor] as demonstrated by the quality of the visits, although they are limited in their time
of duration given the circumstance here.
       “[Valarie C.]’s information about the instability in [the minor]’s early years is
helpful to the Court in assessing [the minor]’s needs. The Court considered the risk that
if the Court were to grant the petition and allow [Valarie C.] the de facto parent status,
that that would simply have fanned the fire of discontent that clearly is ongoing between
[mother] and [Valarie C.] But the Court’s concern is that [the minor] should not miss out
on an already-established relationship that benefits [the minor], that she enjoys[,] simply
because [mother] and [Valarie C.] are not currently on good terms for reasons that[ are]

                                              10
known between the two of them. The Court’s concern—so I’ve considered that and I’ve
weighed that. However, I think the benefit to [the minor] outweighs [sic] and that [the
minor] should not miss out on the benefit of having someone who is familiar with her
early history being available to attend court and be aware of the proceedings. So I am
going to grant the application; however, the Court understands that the Court has the
authority to control discovery and it would be the Court’s intention that if there’s—the
confidential report would not be automatically available to the de facto parents. There
would be notice here under [section] 827 as to whether confidential information could be
provided to [Valarie C.], but the Court would assume that and allow [Valarie C.] to be
provided status information, what stage the case is in, attend the hearings, and provide
input if requested by Children’s Services.
       “So I think that then concludes that issue that the Court is affording the de facto
parent status with the limitation on discovery that I just discussed.”
       The court subsequently added: “I would say what I want to state in the Court’s
ruling, too, is the Court is mindful that in the dependency proceedings, we pursue
extended family of children for a variety of reasons. That includes concurrent plan but
also continuity for the child as they’re spending their time in foster care so that continuity
of contact with family, extended family that they’ve already had a relationship with is
helpful to the children in most cases. And where it’s not, then we limit that contact. It’s
also helpful that—continuity is helpful to the Court in understanding the history and
needs of the child, and the Court considers those factors as well in granting the
application today.”
                                     II. DISCUSSION
       Mother contends that allowing de facto parents to be parties to juvenile
dependency proceedings violates federal and state constitutional guarantees of
substantive and procedural due process for parents. We are not persuaded.



                                             11
       At the outset, we agree with mother that she may raise this constitutional question
for the first time on appeal. Her due process challenge presents a question of law that
does not involve the resolution of disputed facts. Such questions are subject to de novo
review. (In re A.L. (2010) 190 Cal.App.4th 75, 78.)
A.     Due Process in Juvenile Dependency Proceedings
       “The federal and state Constitutions guarantee that no state shall deprive any
person of life, liberty or property without due process of law. [Citation.] A parent’s
interest in the companionship, care, custody and management of his [or her] children is a
compelling one, ranked among the most basic of civil rights. [Citation.] Likewise,
natural children have a fundamental independent interest in belonging to a family unit
[citation], and they have compelling rights to be protected from abuse and neglect and to
have a placement that is stable, permanent, and that allows the caretaker to make a full
emotional commitment to the child. [Citation.] The interests of the parent and the child,
therefore, must be balanced.” (In re Marilyn H. (1993) 5 Cal.4th 295, 306 (Marilyn H.),
italics added.)
       “Although a parent’s interest in the care, custody and companionship of a child is
a liberty interest that may not be interfered with in the absence of a compelling state
interest, the welfare of a child is a compelling state interest that a state has not only a
right, but a duty, to protect. [Citations.]” (Marilyn H., supra, 5 Cal.4th at p. 307, italics
added.)
       “It is axiomatic that due process guarantees apply to dependency proceedings.
(Santosky v. Kramer (1982) 455 U.S. 745, 753-754 [71 L.Ed.2d 599, 606]; Stanley v.
Illinois (1972) 405 U.S. 645, 658 [31 L.Ed.2d 551, 562-563].)” (Ingrid E. v. Superior
Court (1999) 75 Cal.App.4th 751, 756-757.) However, “due process also is a flexible
concept, whose application depends on the circumstances and the balancing of various
factors. [Citations.]” (Id. at p. 757.)



                                              12
       “Substantive due process prohibits governmental interference with a person’s
fundamental right to life, liberty or property by unreasonable or arbitrary legislation.
[Citation.] In substantive due process law, deprivation of a right is supportable only if
the conduct from which the deprivation flows is prescribed by reasonable legislation that
is reasonably applied; that is, the law must have a reasonable and substantial relation to
the object sought to be attained. [Citation.]” (Marilyn H., supra, 5 Cal.4th at pp. 306-
307, italics added.)
       “Significant [procedural due process] safeguards have been built into the current
dependency scheme. They include representation by counsel to assist parents at every
stage of the proceedings (§ 317), notice of all hearings and rights (§§ 307.4, 308, 311,
316, 335-336, 364-366.23) . . . .” (Marilyn H., supra, 5 Cal.4th at pp. 307-308.)
       “What . . . are the due process attributes of a proper review hearing in the
dependency system? Along with the important requirement of providing proper notice of
such a hearing, the right to present evidence, and to cross-examine adversarial witnesses,
i.e., the right to be heard in a meaningful manner, are the minimum. [Citations.]” (In re
James Q. (2000) 81 Cal.App.4th 255, 265.)
B.     De Facto Parenthood in Juvenile Dependency Proceedings
       In In re B.G. (1974) 11 Cal.3d 679 (B.G.), our Supreme Court established the right
of de facto parents to appear as parties in juvenile dependency proceedings. The high
court held: “The fact of biological parenthood may incline an adult to feel a strong
concern for the welfare of his [or her] child, but it is not an essential condition; a person
who assumes the role of parent, raising the child in his [or her] own home, may in time
acquire an interest in the ‘companionship, care, custody and management’ of that child.
The interest of the ‘de facto parent’ is a substantial one, recognized by the decision of this
court in Guardianship of Shannon (1933) 218 Cal. 490 . . . and by courts of other
jurisdictions and deserving of legal protection. [Citation.] [¶] . . . [¶] The juvenile court
in a dispositional hearing must undertake ‘a judicious appraisal of all available evidence

                                              13
bearing on the child’s best interests’ . . . . [Citation.] The presence of de facto parents
will aid the court in that endeavor; the views of such persons who have experienced close
day-to-day contact with the child deserve consideration; moreover, an award of custody
to such de facto parents is often among the alternate dispositions which the court must
evaluate. [¶] We conclude that de facto parents . . . should be permitted to appear as
parties in juvenile court proceedings. Their standing should not depend upon the filing of
a petition for guardianship . . .[,] nor should their participation be restricted to the limited
role of an amicus curiae; they should be permitted to appear as parties to assert and
protect their own interest in the companionship, care, custody and management of the
child.” (Id. at pp. 692-693, fns. omitted.)
       In In re Patricia L. (1992) 9 Cal.App.4th 61 (Patricia L.), the court set out criteria
for determining who is entitled to de facto parent status: “Whether a person falls within
the definition of a ‘de facto parent’ depends strongly on the particular individual seeking
such status and the unique circumstances of the case. However, the courts have identified
several factors relevant to the decision. Those considerations include whether (1) the
child is ‘psychologically bonded’ to the adult; (2) the adult has assumed the role of a
parent on a day-to[-]day basis for a substantial period of time; (3) the adult possesses
information about the child unique from the other participants in the process; (4) the adult
has regularly attended juvenile court hearings; and (5) a future proceeding may result in
an order permanently foreclosing any future contact with the adult. [Citations.] If some
or all of these factors apply, it is immaterial whether the adult was the ‘child’s current or
immediately succeeding custodian.’ [Citations.] Because a court can only benefit from
having all relevant information, a court should liberally grant de facto parent status. If
the information presented by the de facto parent is not helpful, the court need not give it
much weight in the decision[ ]making process. [Citation.]” (Id. at pp. 66-67, fns.
omitted.)



                                               14
        De facto parents “ ‘are not equated with . . . parents or guardians for purposes of
dependency proceedings and standing to participate does not give them all of the rights
and preferences accorded [parents or guardians]. [Citations.]’ ” (In re Kieshia E. (1993)
6 Cal.4th 68, 77; accord, In re B.F. (2010) 190 Cal.App.4th 811, 817.)
        “De facto parents are not part of any adversarial aspect of a dependency case.”
(In re B.F., supra, 190 Cal.App.4th at p. 817.) Unlike parents and minors, they do not
have the right to cross-examine social workers and other witnesses. (Ibid.) They also are
not automatically entitled to receive agency reports and other documents filed with the
court. (Ibid.) They have standing to petition the juvenile court for the right to inspect or
copy the case file, but may not actually inspect or copy the file without a court order. (Id.
at p. 818.)
        Rule 5.502(10) of the California Rules of Court4 defines a de facto parent
consistently with the Patricia L. test: “ ‘De facto parent’ means a person who has been
found by the court to have assumed, on a day-to-day basis, the role of parent, fulfilling
both the child’s physical and psychological needs for care and affection, and who has
assumed that role for a substantial period.”
        Rule 5.534(e) provides: “On a sufficient showing, the court may recognize the
child’s present or previous custodian as a de facto parent and grant him or her standing to
participate as a party in the dispositional hearing and any hearing thereafter at which the
status of the dependent child is at issue. The de facto parent may: [¶] (1) Be present at
the hearing; [¶] (2) Be represented by retained counsel or, at the discretion of the court,
be appointed counsel; and [¶] (3) Present evidence.” (See also rule 5.530(a), (b)(2).)




4   Undesignated rule references are to the California Rules of Court.

                                               15
C.      Substantive Due Process
        We conclude mother’s constitutional challenge fails because she does not show
how permitting de facto parents to act as parties infringes on any due process right
guaranteed by the federal or state Constitution.
        We begin with substantive due process, because it is mother’s primary focus.
Mother argues: (1) Since permitting de facto parents to act as parties infringes on a
parent’s fundamental liberty interest, it is subject to strict scrutiny; (2) De facto
parenthood in juvenile dependency cannot survive strict scrutiny because it is neither
necessary nor the least restrictive or least discriminatory means to accomplish its
purpose. (See, e.g., Simon & Schuster v. Members of the N.Y. State Crime Victims Bd.
(1991) 502 U.S. 105 [116 L.Ed.2d 476]; Wygant v. Jackson Board of Education (1986)
476 U.S. 267 [90 L.Ed.2d 260]; Dawn D. v. Superior Court (Jerry K.) (1998) 17 Cal.4th
932, 939-940 [Family Code presumptions of paternity].)5 Mother’s argument fails at the
first step.



5 In support of this point, mother cites a number of methods now provided by law for
juvenile courts to obtain information that were not available in 1974, when B.G. was
decided. These include: (1) the appointment of independent counsel for minors; (2)
clearer and fuller statutory definitions of counsel’s role; (3) the appointment of Child
Abuse and Prevention Act (CAPTA) (42 U.S.C. § 5101 et seq.) guardians for minors; (4)
the appointment of court appointed special advocates (CASA) for minors; (5) the
caregiver’s right to be present and be heard; (6) other relatives’ right to be present and be
heard; (7) the court’s ability to admit any interested party to a hearing; and (8) the
availability of relief by means of section 388 petitions.

   Since we conclude that allowing de facto parents to appear as parties does not unduly
infringe on any due process rights of biological parents, we need not consider whether
any or all of these means could give juvenile courts the same information that de facto
parents can provide. We note, however, that de facto parents’ ability to provide
information is not the only rationale for allowing them to participate in proceedings: The
child’s bonding to the de facto parent, and the desire to ensure that the de facto parent is
not foreclosed from future contact with the child, are equally relevant. (Patricia L.,
supra, 9 Cal.App.4th at pp. 66-67.)

                                              16
       Mother cites no authority applying strict scrutiny to substantive due process issues
in the juvenile dependency context, and we have found none. Marilyn H., supra,
5 Cal.4th 295, sets out the proper level of scrutiny in this context. Though mother
purports to rely on Marilyn H., she ignores its holding on this point, which we quote
again here: “Substantive due process prohibits governmental interference with a person’s
fundamental right to life, liberty or property by unreasonable or arbitrary legislation.
[Citation.] In substantive due process law, deprivation of a right is supportable only if
the conduct from which the deprivation flows is prescribed by reasonable legislation that
is reasonably applied; that is, the law must have a reasonable and substantial relation to
the object sought to be attained. [Citation.]” (Id. at pp. 306-307, italics added.) This is
not strict scrutiny. Nothing in this test requires the challenged law to be “necessary” or
the “least restrictive or least discriminatory means” to achieve its purpose.
       Furthermore, Marilyn H. makes clear why strict scrutiny would be unworkable as
to the issue raised in this appeal. Parents are not the only parties with a fundamental
liberty interest at stake in dependency proceedings: children also have such an interest.
As the court explained: “A parent’s interest in the companionship, care, custody and
management of his [or her] children is a compelling one, ranked among the most basic of
civil rights. [Citation.] Likewise, natural children have a fundamental independent
interest in belonging to a family unit [citation], and they have compelling rights to be
protected from abuse and neglect and to have a placement that is stable, permanent, and
that allows the caretaker to make a full emotional commitment to the child. [Citation.]
The interests of the parent and the child, therefore, must be balanced.” (Marilyn H.,
supra, 5 Cal.4th at p. 306.) “Although a parent’s interest in the care, custody and
companionship of a child is a liberty interest that may not be interfered with in the
absence of a compelling state interest, the welfare of a child is a compelling state interest
that a state has not only a right, but a duty, to protect. [Citations.]” (Id. at p. 307.)
Mother’s argument ignores the child’s interest and the juvenile court’s need to balance it

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against the parent’s interest. But even if the participation of de facto parents as parties
had to meet a necessity test, a juvenile court in a particular case could well deem it
necessary, in order to protect the child’s compelling interest, to obtain information that
only the de facto parents could provide, or to ensure by granting de facto status that
persons essential to the child’s well-being are not frozen out of the child’s life.
(Patricia L., supra, 9 Cal.App.4th at pp. 66-67.)
       Lastly, mother’s only actual argument for why allowing de facto parents to appear
as parties infringes on biological parents’ substantive due process rights is unpersuasive.
Mother asserts: “The existence of a de facto parent as a party in a dependency
proceeding creates an unreasonable governmental interference with a parent’s
fundamental liberty interest. It creates an unbalanced playing field for the parent. The
dependency scheme already creates an adversarial situation often times between the
parent and the Department as well as minor’s counsel. A parent already has to face a
state agency, adding a de facto parent as a party to the proceedings makes it so a parent
also has to face a private party that has been created. This adds one more party and one
more attorney that the parent potentially (and usually) has to oppose in court when
nonparents who have an interest in the child can already provide information to the court
without being a party to the case.” (Italics added.) But mother cites no authority holding
that substantive due process entitles a parent to a “balanced playing field.” Nor does she
explain why adding a de facto parent as a party (who may or may not be adversarial
toward the biological parent) to gain information, or for any other reason consistent with
the child’s best interest, is fundamentally unfair in any way that differs from, e.g., the
juvenile court’s reliance on expert witnesses (whose opinions, if adverse to the parent,
may weigh decisively against the parent).
       In short, mother has shown no violation of substantive due process from the
appointment of de facto parents as parties.



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D.     Procedural Due Process
       As to procedural due process, mother reiterates the contention, which we have
already rejected, that making de facto parents parties unbalances the playing field against
biological parents and is unnecessary as a method of giving the juvenile court
information. However, mother does not focus on the meaning of procedural due process
in the juvenile dependency context. She barely mentions the case law that defines
parents’ procedural due process rights in the juvenile dependency context: representation
by counsel, notice of hearings, the right to present evidence, and the right to cross-
examine adversarial witnesses. (Marilyn H., supra, 5 Cal.4th at pp. 307-308; In re James
Q., supra, 81 Cal.App.4th at p. 265.) Mother also fails to explain how allowing de facto
parents to appear as parties infringes in any way on those procedural due process rights.
Consequently, her argument is not persuasive.
       Mother has failed to show any constitutional infirmity in the practice of allowing
de facto parents to participate as parties in juvenile dependency proceedings.
E.     Abuse of Discretion
       Mother contends that, even assuming it is constitutional to allow de facto parents
to participate as parties, the juvenile court abused its discretion by granting Valarie C.’s
request for de facto parent status. We disagree.
       The juvenile court makes its findings as to de facto parenthood by a
preponderance of the evidence, and we review its findings for abuse of discretion. (In re
Leticia S. (2001) 92 Cal.App.4th 378, 381.) We will not find an abuse of discretion
unless the court “has exceeded the limits of legal discretion by making an arbitrary,
capricious, or patently absurd determination. [Citation.]” (Ibid.)
       Here, the juvenile court expressly based its ruling on the Patricia L. factors. The
court found: The minor was psychologically bonded to Valarie C., who had assumed the
role of a parent on a day-to-day basis for a substantial time; Valarie C. possessed unique
information about the minor based on her earlier custody of the minor; Valarie C. had

                                             19
attended all hearings; and Valarie C.’s involvement in the minor’s life was a comfort to
the minor, so far as the current restricted visitation schedule allowed. (Cf. Patricia L.,
supra, 9 Cal.App.4th at pp. 66-67.) The court acknowledged that mother and Valarie C.
were not on good terms, but found that the benefit to the minor of Valarie C.’s
participation in the proceedings outweighed the risk of “fann[ing] the fire of discontent”
between mother and Valarie C. The court’s determination was not “arbitrary, capricious,
or patently absurd.” (In re Leticia S., supra, 92 Cal.App.4th at p. 381.)
       Mother asserts the juvenile court abused its discretion because: (1) The case was
still in reunification and mother was compliant with her services; (2) Mother viewed
Valarie C. as an obstacle to reunification and did not want her present at hearings; (3)
Valarie C. did not have any unique information about the minor and only cared for her
for four months; (4) Valarie C. already had a way to present information to the court
without de facto parent status. Only the third point is relevant, and that point is without
merit. As the court found, Valarie C.’s period of custody, as well as her other early
contacts with the minor, gave her a unique insight into the minor’s mental and emotional
state at that time, which was vital to the court’s assessment of the minor’s history.
Furthermore, mother cites no authority holding that four months’ custody is insufficient
to satisfy Patricia L.’s “substantial period of time” criterion, and we know of none.
(Patricia L., supra, 9 Cal.App.4th at p. 67.)
       Mother points out that Valarie C. admitted she did not have current information
about the minor (other than what she learned during visits). However, Patricia L. does
not hold that a de facto parent’s unique information must also be current. In any event, as
Patricia L. notes: “If the information presented by the de facto parent is not helpful, the
court need not give it much weight in the decision[ ]making process. [Citation.]”
(Patricia L., supra, 9 Cal.App.4th at p. 67.)
       Mother’s “concern” that Valarie C. was “unsupportive and an obstacle to
reunification” is immaterial to whether Valarie C. could act as a de facto parent. In any

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event, Valarie C. made clear that she understood the case was still in the reunification
stage and supported that goal if mother could achieve it.
       Mother’s assertion that appointing Valarie C. as a de facto parent was
“unnecessary” because there were other ways she could have given information to the
juvenile court merely repeats an argument we have already rejected in the due process
discussion above. It also has no bearing on whether the court abused its discretion by
granting her de facto parent status.
       Mother has not shown that the appointment of Valarie C. as a de facto parent was
an abuse of discretion.
                                   III. DISPOSITION
       The order appointing Valarie C. as a de facto parent is affirmed.



                                                   /S/

                                                 RENNER, J.



We concur:



/S/

RAYE, P. J.



/S/

HULL, J.




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