Opinion · California Court of Appeal

In Re Brittany K.

26 Cal. Rptr. 3d 487

Type
Opinion
Court
California Court of Appeal
Jurisdiction
California
Date
2005-03-30
Topic
litigation

26 Cal.Rptr.3d 487 (2005) 127 Cal.App.4th 1497 In re BRITTANY K., et al., Persons Coming Under the Juvenile Court Law. Sonoma County Human Services Department, Plaintiff and Respondent, v. Ellen J., Defendant and Appellant. Nos. A101698, A102668, A103013 & A103987.

Citator

Cited by
34 opinions
IN RE BRITTANY K.,127 Cal.App.4th 1497(2005)
26 Cal.Rptr.3d 487
In re BRITTANY K. et al., Persons Coming Under the Juvenile Court Law.
SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v.
ELLEN J., Defendant and Appellant.
Nos. A101698, A102668, A103013, A103987
Court of Appeal of California, First District.
March 30, 2005
[CERTIFIED FOR PARTIAL PUBLICATION]fn*
Appeal from the Superior Court of Sonoma County, No. 28470-J 28471-J, Carla F. Bonilla and Dennis Q. Beaman, Temporary Judges.fn†Page 1498
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 1499

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 1500

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 1501
Carol Greeley, under appointment of the Court of Appeal, for Defendant and Appellant.

Steven M. Woodside, County Counsel, and Bruce D. Goldstein, Deputy County Counsel, for Plaintiff and Respondent.Page 1502
OPINION
McGUINESS, P.J.
In these four consolidated appeals, appellant Ellen J., the maternal grandmother of minors Brittany and Amanda K. appeals from four different juvenile court orders issued after the court had already entered permanent placement plan orders finding the minors adoptable, terminating parental rights, and denying placement of the minors with appellant. In our previous opinion in this matter, filed on February 28, 2002, we affirmed the juvenile court's permanent placement plan orders in their entirety. On this appeal, appellant challenges (a) the juvenile court's denial of two successive petitions for modification under Welfare and Institutions Code section388,1requesting immediate removal of the minors from the care of their foster parents (the D.'s) and placement in her own home; (b) the court's issuance, after a hearing, of a three-year restraining order barring appellant from having contact with the minors and their foster parents; and (c) its order granting the motion of respondent Sonoma County Human Services Department to terminate appellant's previously granted status as a de facto parent.2Based on our review of the entire record, including our previous decisions denying writ review of juvenile court orders terminating reunification services and affirming the subsequent permanency planning orders, we conclude that the juvenile court did not err or abuse its discretion, and there are no grounds for reversal. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUNDfn*
Following the juvenile court's order terminating parental rights with respect to the minors, their status came up for regular permanency review at intervals of approximately six months. At the permanency review hearing on August 22, 2001, attended by appellant, the juvenile court received a report from the social worker assigned to the case stating the minors were "having a difficult time adjusting," and were participating in therapy to help them with interpersonal behavioral problems apparently correlated with contact with their birth mother. As a result of the latter's interference with the minors, including her repeated promises to them that they would be "returning home" to live with her, respondent had suspended her visitation in order to give the minors a better chance to attach with their foster caretakers. The report of the court-appointed special advocate (CASA) noted that while the minors were having some difficulties bonding with their foster parents due to their strong ties to their birth mother, they were also "more outgoing, more verbal and generally more communicative and emotionally available" than when first contacted by CASA in April 2000, and were "clearly behav[ing] as members of the foster family." The CASA found the foster parents were "genuinely loving and involved with the girls and their welfare," but having "some reservations about adoption because of the intense negative legal interactions to date with the girls' mother and grandmother."

At the conclusion of the hearing on August 22, 2001, the juvenile court found that the minors' placement with their foster parents was "necessary and appropriate," the permanent plan continued to be adoption, and respondent had made reasonable efforts to complete the necessary steps to finalize permanent placement. The juvenile court made the same findings and orders at the permanency review hearing on March 20, 2002, based on the social worker's report that through their therapy, the minors had made "considerable progress" in their relationship with each other and with their foster parents, and were "becoming increasingly more stable in their placement with the foster family." Nonetheless, the foster parents "remain[ed] ambivalent about committing to adoption" because of concerns about replacing the minors' strong connection with the biological mother.

On July 31, 2002, the social worker filed an informational memorandum with the court, detailing two recent incidents in which appellant had attempted to contact the minors surreptitiously without respondent's knowledge, in violation of respondent's directives limiting or barring such contact. First, at a supervised visit on May 18, 2002, the biological mother passed letters and photographs directly to the minors from appellant rather than giving them to the social worker as they had been instructed. Later, at another supervised visit on June 15, 2002, the biological mother "attempted to sneak [appellant] into the visit" by hiding her in a back room at the offices where the visit was to be held, and telling the minors not to reveal her presence. Discovery of appellant led to termination of the visit. The incident was alarming and upsetting for the foster mother, Mrs. D., and upsetting for the minors because they were supposed to have been celebrating Brittany's birthday with their birth mother. As a result, visitation with the birth mother was decreased.

On or about September 11, 2002, appellant submitted a section 388 modification petition (the first section 388 petition) seeking an order modifying or setting aside the juvenile court's previous order placing the minors with their foster parents, and instead removing them from the D.'s care and giving them to appellant as a "fost/adopt placement." As the "new evidence" of "a change of circumstance" required by rule 1432(b) of the California Rules of Court,4appellant alleged that as a result of respondent's restriction of post-termination visitation by the biological mother, and the D.'s reluctance to adopt, the minors had become "legal orphans." She argued that the minors "already have a powerful bond" with her, and her requested modification placing the minors with her was in their best interest because it would give them "real permanency" in a placement where "safe visitation" with their biological mother would be "ensure[d]." Appellant attached her own declaration in which she reviewed the history of the dependency litigation from her perspective; claimed that she had "a strong bond" with the minors despite her lack of "recent contact" with them; asserted that she had been "evaluated" by Yolo County and "two psychologists" and "found to be qualified to be a foster parent" and "psychologically appropriate to care for" the minors; and made a number of derogatory allegations about the foster parents. Specifically, appellant alleged that Mr. D. "had a recent criminal conviction and had been married six times," and had "improperly passed the criminal records screening" for foster parents because of respondent's failure to take account of an unreported criminal conviction.

Opposition to appellant's first section 388 petition was filed separately by both the respondent and the minors themselves. Through their attorney, the minors argued that appellant's motion should be denied without a hearing because her allegations of changed circumstances were based on "hearsay and innuendo," and were unsupported by any new evidence. Respondent similarly asked the juvenile court to deny the petition without a hearing pursuant to rule 1432(b), on the grounds it failed to set forth "any relevant material change of circumstances" or new evidence demonstrating that the requested modification would be in the minors' best interests. Along with its opposition, respondent submitted a CASA report dated September 3, 2002, stating that the minors "continue to thrive in their current foster home," where they had at that point been living for more than two years, and had made "dramatic and heartening" advances in their development.

The juvenile court took appellant's first section 388 petition under submission. In the interim, respondent submitted a new permanency review report by the social worker stating that the minors were "becoming increasingly more stable in their placement with the foster family"; had "benefited greatly" from therapy; and were "doing very well in school." The social worker reported that the foster family "remain committed to raising [the minors]" and had "no intention of discontinuing the parenting role they fill for these children," although they "remained firm in their decision to not pursue adoption." Given the "degree of commitment" of the D.'s toward the minors, and the latters' manifest developmental improvement, the report recommended that the permanent plan remain adoption, with efforts made to provide services and support to the foster family to meet their expressed concerns about adoption. Following the permanency review hearing on October 3, 2002, the juvenile court adopted the recommendations set out in the report.

On December 17, 2002, the juvenile court denied appellant's first section 388 petition without a hearing, based on appellant's failure to set forth any new evidence or a change of circumstances, or to show how the requested modification would promote the best interests of the minors. Appellant timely filed her notice of appeal from this decision on January 30, 2003 (appeal No. A101698).

On February 5, 2003, appellant submitted a new section 388 petition (the second section 388 petition), again requesting an order modifying or setting aside the juvenile court's previous placement order, by removing them from the D.'s home "immediately," and placing them in her own care. Appellant urged that the D.'s had repeatedly expressed unwillingness to adopt the minors, and had "consistently failed to comply with visitation schedules, telephone calls, and other lawful rights the [minors] have to maintain contact" with their birthmother; and she alleged that respondent had rejected appellant's efforts to adopt the minors and ignored all evidence of her fitness as a caretaker in its ongoing collusion with county counsel, CASA, the state adoption agencies, the minor's attorney, and appellant's own previous court-appointed counsel to keep the minors out of her care and in placement with strangers. In support of her claims, appellant made numerous highly inflammatory and derogatory personal allegations about the D.'s and their family, which she asserted respondent had "chose[n] to ignore" when brought to its attention; and attached a transcript of a purported interview by a private investigator of the foster father's ex-wife, involving incidents of alleged alcohol abuse and domestic violence occurring more than twenty years earlier.5

Counsel for the minors and respondent again filed separate opposition papers, both requesting that appellant's second section 388 petition be summarily denied without a hearing on the grounds appellant had failed to make a prima facie showing that there was a significant change of circumstances, or that the proposed modification of placement would be in the minors' best interests. Specifically, respondent noted that appellant offered no evidence whatsoever that the minors were unhappy, not well cared for, or wanted to leave their foster home of three years. Respondent's opposition attached the social worker and CASA reports prepared for the October 3, 2002, permanency review hearing. These reports stated that the minors were improving at school and progressing in their interpersonal relationships. On February 27, 2003, the juvenile court denied the second section 388 petition without a hearing, based on appellant's failure to offer new evidence or a change of circumstances. Appellant did not file her notice of appeal from this decision until May 12, 2003 (appeal No. A102668).

The next permanency review hearing was held on March 20, 2003. The social worker's report prepared for the hearing stated that the minors had "become increasingly more stable under their care of their foster parents"; were doing very well in school academically; and had both stated that they were happy, safe and secure in their placement "and that they do not wish to move." The report noted that the foster parents had "committed to raising [the minors] beyond the age of majority," but "would like time to continue to stabilize and develop their relationship before entering into adoption." The CASA report gave similar assessments. In addition, CASA specifically reported its positive assessment of the relationship between the minors and Mr. D., based on "several long visits" with the minors in his presence. The only area of concern noted was appellant's continued interference in the minors' placement, and the destabilizing effect of this interference on the minors' relationship with their foster parents.6Based on the reports and recommendations of both the social worker and CASA, and over the objection of appellant, the juvenile court continued the minors' placement with the foster parents as "necessary and appropriate," with adoption continued as the permanent plan.

On March 26, 2003, respondent filed an application for a temporary restraining order (TRO) pursuant to section 213.5, requesting that appellant be prohibited from contacting, "stalk[ing]," or harassing the minors or the foster parents. Respondent's TRO request was supported by the social worker's declaration, reporting that on March 21, 2003, appellant had appeared unannounced at each of the minors' schools, acting "quite agitated," demanding to speak to school authorities, making inflammatory allegations about Mr. D., and attempting to contact the minors. Based on her twenty years of experience in the field working with abused children and their families, and appellant's "escalating" "stalking-type behavior" — including the earlier incident of hiding herself at the unsupervised visitation between the minors and their birthmother, and her hiring of an investigator to put the foster family under surveillance — the social worker stated her belief that the minors were at "significant risk of emotional and possibly physical harm from [appellant]," including "the harm they would face if [appellant] is successful in undermining the placement which she has placed at great risk by her current activities and the risk that she may abduct the children." The juvenile court issued the requested TRO ex parte, and set the matter for hearing on April 9, 2003.

On March 28, 2003, respondent filed a motion to terminate appellant's status as a de facto parent. Respondent argued there had been a change in circumstances, in that by her actions and behavior appellant had placed the minors at risk of substantial harm in a manner fundamentally inconsistent with the role of a de facto parent, with the result that she no longer met the criteria for de facto parent status. In support, respondent cited appellant's surveillance of and spying on the foster home and family; her history of hostile and threatening behavior toward the minors' various foster caregivers; her ongoing pattern of active efforts to sabotage, destabilize and undermine every one of the minors' foster placements; and her recent attempts to intercept the minors at their respective schools. In addition, respondent urged that appellant no longer met the requirements for de facto parent status because she did not posses unique information regarding the minors, no longer had a close and continuing relationship with the minors, no longer played the role of the minors' psychological parent, and no longer maintained a viable custody interest to protect. In opposition, appellant continued to make inflammatory and largely unsupported factual allegations about the foster family, and Mr. D. in particular; and asserted that she was herself "the only person to act in a manner consistent with upholding the best interests of her grandchildren."

After several continuances, a contested hearing commenced on May 13, 2003, on respondent's request for a restraining order and its motion to terminate appellant's de facto parent status. Respondent's first witness, Joellen Pinter, was a social worker with the foster family and adoption agency that had certified and supervised the minors' foster placement with the D.'s, and had been the foster family agency supervisor for the minors since their placement with the D.'s three years earlier. Pinter's involvement and supervision with the minors and their foster parents had been more intensive "because of the level of disturbance of the two girls," and their difficulty in building a relationship of trust. She testified that over the three-year period that they had been with the D.'s, the minors had "changed dramatically" from being very "argumentative," "aggressive," "defiant," "unfocused" and unable to "take responsibility for anything they did," to being excellent students, doing "very well in school," with friends and good interpersonal skills. Pinter attributed this "really remarkable" improvement to the "consistency" and "stability" of their foster placement and "really good job" done by the D.'s at "serving in the role [of] the children's psychological parents."7Pinter had never found anything disturbing about the foster parents, even when she made unannounced visits on them. In the course of Pinter's confidential interactions with the minors, they had "never" expressed any fear of either of their foster parents, or concern about safety issues; and she did not think the minors would be doing as well as they were if they had experienced any violence or threat of violence in their foster home.

Pinter learned of appellant's expressed concerns about the foster family from one of appellant's section 388 petitions. In response, Pinter conducted her own investigation, as a result of which she concluded that many of appellant's factual allegations were false.8Even the physical description of Mr. D. in appellant's pleadings was plainly inaccurate, and possibly referred to someone else.9Far from constituting a danger to the minors, Pinter opined that the D.'s were providing the minors with a loving and safe family relationship, and were the primary reason the minors were making such dramatic emotional, psychological and academic progress.

By the same token, Pinter testified that appellant's own behavior represented the single greatest threat to the stability and chances for success of the minors' placement in their foster family. After they learned about appellant's petitions, surveillance, and unannounced appearances at the minors' schools, the foster parents had become emotionally upset, anxious, stressed, "hypervigilant," and worried that they were being followed or that the minors were going to be abducted. The minors — who were "really happy where they are" and had never talked about appellant, or expressed any desire to see or visit with her — had themselves manifested concern that they not be moved again after they learned of appellant's actions. Pinter opined that appellant's behavior placed the minors' placement with the D.'s at risk, and that moving the minors again would be "devastating" and "abusive" to them.

Appellant called several witnesses out of order. Robert Estes, the private investigator hired by appellant to investigate the foster family and their residence, testified that he went to the D.'s home on four separate occasions. He testified that the house was in a rural area along a highway, with cars "racing by"; there was no sidewalk; there was no lawn; the yard was uneven, with several tree stumps in it; and there was a boarded-up sliding glass door. He observed two children (presumably the minors) being left off by their respective school buses. Estes also authenticated still photographs taken from a video he had taken of the D.'s residence. On cross-examination, Estes testified that he was hired to investigate Mr. D.'s competence as a foster parent, and his alleged problems with alcohol and violence. He was given specific instructions (a) to put Mr. D. under "surveillance . . . to see if [he] was going out drinking"; (b) to determine how and when the minors got home; and (c) to ascertain whether anyone was present at home when the minors returned from school. Estes specifically acknowledged that he saw no signs of alcohol abuse or violence, no evidence of physical abuse to the minors, and no evidence the foster parents were an unfit or inappropriate placement for the minors.

Diana Loretz, a district manager for the state adoptions office, testified that she had reviewed the adoption homestudy of appellant. She was unaware of any problems between her agency and appellant, or of any adversarial relationship between appellant and respondent or the other social services agencies involved in the minors' case. Loretz had reviewed and signed the denial of appellant's adoption homestudy. Loretz testified that appellant's adoption home study was denied because of appellant's past parenting practices with her own children, including her use of corporal punishment "probably teetering on abuse"; her continuing belief that corporal punishment is appropriate discipline; her lack of insight into the special needs of the minors arising from the trauma they had experienced; and her demonstrated inability to put the minors' needs ahead of her own. Loretz testified that after appellant protested the denial of her adoption homestudy, an administrative review hearing was held, resulting in a decision upholding the decision to deny appellant's adoption application.

Appellant's next witness was Denise Wagner, the licensed clinical social worker who performed appellant's adoption homestudy and authored the report denying her home as a suitable placement for the minors. Wagner was aware that appellant had "adversarial relationships" with some of the various social agencies, social workers and foster families involved in the minors' case, and that appellant had at various times made "numerous complaints" about various foster parents.10Wagner testified that she based her recommended denial of appellant's adoption homestudy on her meetings with the minors, her interviews of appellant's daughters, and her interview of appellant. In the course of her contact with the minors, Wagner found that they had "really blossomed" as they became "more settled" in the D.'s foster care, with marked improvement in their behavior, their interpersonal relationships, and their grades in school. There was nothing in the foster home or the relationship between the D.'s and the minors that gave her any concern about the Minor's safety in their care; to the contrary, she confirmed that the D.'s currently played the role of psychological parents to both minors. Wagner opined that if the minors were forced to leave their placement with the D.'s, their loss of that stable and predictable environment would cause them to "regress," possibly to "where they were before."

Regarding her interview with and evaluation of appellant, Wagner testified that appellant continued to believe strongly in the value and efficacy of corporal punishment, and felt that "this generation would see it and come around" to using it again. Appellant manifested no insight into or understanding about the physical abuse and trauma the minors had suffered in their biological family home, and instead blamed any traumatic symptoms they had on the foster care system and deaths in the extended family. Wagner expressed concern that if children like the minors who had previously suffered physical abuse were again exposed to the kind of corporal punishment favored by appellant, "it [would] retraumatize them." She noted that appellant's actions had made the D.'s "very hesitant to move forward" with adoption.

Respondent called CASA Nancy Gilbert, who had worked with the minors for over three years. For the first year, Gilbert had visited the minors approximately once a week. After they had moved to their present address, she saw them every two weeks, and subsequently once a month. In the time she had known the minors, they had progressed from being very reserved, nonverbal and uncommunicative to being outgoing, talkative, sociable, "much more emotionally available" and "very loving." In contrast to the way they were at first, Gilbert testified that now "they appear to be very comfortable and very happy and very secure where they are." Gilbert testified that the D.'s "are very aware of the need to provide a supportive and structured environment" for the minors; they kept close track of the Minor's activities, and encouraged the minors to focus on academics and excel in school. As a result, both minors were doing well academically. The minors looked to the D.'s for nurturing and support, and Gilbert observed "a great deal of affection" between them and their foster parents. Specifically with regard to the minors' relationship with Mr. D., Gilbert noted "a great deal of camaraderie[,] of affection and humor and just a very comfortable way of interacting and generally affectionate." Gilbert had not seen any evidence of physical abuse, violence, or alcohol abuse around the foster home, and there was "[a]bsolutely" no sense that the minors were fearful or uncomfortable around the foster father. Gilbert opined that the minors' present placement was "absolutely essential" for their continued growth; "it would just be devastating" for the minors if they were forced to leave their placement with the D.'s and "would undermine all the wonderful progress they have made to this date."

With regard to appellant, Gilbert testified that her actions — including hiring a private detective to spy on them and making unannounced and unauthorized attempts to see the minors at their schools — had been very stressful to the foster parents, and made them "genuinely concerned about the [minors'] safety and well-being." Gilbert noted that the minors had never asked to visit or live with their grandmother, and had never even discussed her with Gilbert.

Respondent called appellant as an adverse witness.11Appellant testified that she went to the minors' schools to try to ensure their safety. Despite the previous witnesses' unanimous testimony describing how the minors had made great progress and were "flourishing" in their foster placement with the D.'s, appellant denied hearing, reading, or otherwise receiving any information to that effect.12She admitted that over the previous 24 months she had not tried to contact the social worker, her supervisor, CASA Gilbert, or the minors' attorney to express her concerns about the minors' safety or their placement with the foster family. Appellant opined that the minors' current placement with the D.'s was dangerous to them; and that other than herself, her own attorney, the Commissioner, and "[o]ther members of [her] family that are backing [her]," no one involved in the case was concerned with the minors' best interests.

Appellant testified that she had driven 110 miles, or two and a half hours each way, when she made the unannounced visit to the minors' schools that triggered the TRO, and that she had done so without having had any prior conversations with the minors' teachers about her concerns for the minors' safety, or otherwise trying to determine how well they were doing in school. She had "no idea" how much money she had paid for the private investigator hired to spy on the foster family, and did not know whether it had been more than $15,000. Appellant confirmed that she had not seen the minors for the previous 18 months. Despite this, and contrary to the preceding testimony of Pinter, Gilbert, and Wagner unanimously affirming that removal of the minors from their foster placement would have a devastating effect on them, appellant opined that the minors' safety depended on their removal from the D.'s, and that the only negative consequence of taking them from their foster family and giving them to her would be the "unintended" one of "a period of adjustment" to their "going home." Appellant testified that she formed her negative opinion of the D.'s because they were living in a trailer and Mr. D. was drinking a beer when she first met them.13Appellant rejected the testimony and reports stating that the minors had benefited from and were "flourishing" in their foster placement with the D.'s, and instead insisted that the minors "have not developed their own world or reality" since they had been taken from their birthmother and herself.

Following closing arguments, the juvenile court issued a detailed oral ruling granting respondent's request for a three-year restraining order barring appellant from harassing, stalking, disturbing the peace of, or directly or indirectly contacting the minors and the D.'s. The juvenile court based its ruling on appellant's conduct in seeking out the confidential location of the minors' foster home; hiring a private investigator to place the foster family under surveillance and obtain specific information about the minors' movements, schedules, and times of coming home from school; and appearing unannounced at each of the minors' schools. The juvenile court specifically found that there was no legitimate purpose to appellant's conduct and "stalking behaviors," which were very destabilizing to the minors' foster placement, and had caused both the foster parents and the minors themselves to experience emotional distress and fear that the minors could be abducted. The trial court specifically ordered that (a) appellant stay at least 100 yards away from the minors, the foster parents, their residence, places of work and schools; (b) appellant not contact the minors or the foster parents either directly or indirectly by telephone, mail or email; (c) any holiday or birthday gifts or messages from appellant to the minors be sent through and screened by respondent; and (d) appellant have no further right to visit the minors without explicit court permission by order entered thereafter. Appellant timely filed her notice of appeal from this order on June 17, 2003 (appeal No. A103013).

After considering arguments on respondent's motion to terminate appellant's de facto parent status, the juvenile court took the matter under submission. On August 1, 2003, the juvenile court issued its written order granting the motion and terminating appellant's de facto parent status, on the ground that since the time appellant's status had originally been conferred in June 2000, there had been a material change of circumstances, such that she no longer met the necessary criteria for de facto parent status. Specifically, the juvenile court found that: (a) appellant no longer possessed any unique or even reasonably accurate information about the minors that would be of any assistance to the court in making decisions about the minors' welfare or placement; (b) appellant did not fulfill the role of psychological parent to the minors; (c) appellant did not have a viable custody interest in the minors to protect; and (d) her past conduct and destabilizing actions toward the minors and their previous foster placements had exposed the minors to a substantial risk of additional emotional and possibly physical harm. Finally, the juvenile court found that appellant's most recent conduct had posed "the risk of additional serious harm by placing severe stress on the stability of the [minors'] placement," and threatened them "with direct emotional and possibly physical harm." The juvenile court concluded that appellant's recent actions were "fundamentally inconsistent with someone acting in a parental role and have served to extinguish [appellant's] entitlement to de facto parent status." Appellant timely filed her notice of appeal from the termination of her de facto parent status on September 17, 2003 (appeal No. A103987).14
EX PARTE DENIAL OF SECTION 388 PETITIONS
Appellant asserts that the juvenile court committed reversible error by denying her two section 388 petitions without a hearing, contrary to governing standards requiring that such petitions be liberally construed in favor of granting a hearing to consider a requested modification. Under the facts presented on this record, appellant's assertions are meritless.
UNTIMELINESS OF APPEAL IN No. A102668
We must first address the jurisdictional question of whether appellant's notice of appeal in No. A102668 was timely filed from the juvenile court'sPage 1503February 27, 2003, decision denying her second section 388 petition without a hearing. The notice of appeal was filed on May 12, 2003, more than 60 days after rendition of the order. Appellant contends she had an additional 10 days to file her notice of appeal, i.e., until May 13, 2003, because the commissioner was purportedly acting as a referee rather than as a temporary judge. Both parties acknowledge that the timeliness of appellant's appeal depends on whether the court commissioner who issued the denial ex parte was acting as a referee or as a temporary judge; and that the appeal was untimely unless the commissioner was sitting as a referee.

Under the Sonoma County Superior Court Local Rules, and without further order of the court, court commissioners act as temporary judges with respect to any and all proceedings to which they are assigned, unless otherwise expressly specified. (In re BrittanyK.(2002)96 Cal.App.4th 805,811-812[117 Cal.Rptr.2d 813].) In this case, as inIn re Brittany K.,appellant has waived any present procedural claim that the commissioner who issued the subject order was acting as a referee rather than as a temporary judge. Nowhere in the record did appellant ever object to the commissioner acting in the latter capacity, or raise the issue of her alleged failure to stipulate to the commissioner's jurisdiction to act as a temporary judge rather than as a referee. Nor did she seek any rehearing of the commissioner's decision before a juvenile court judge. "Absent timely challenge, the orders of a subordinate judicial officer sitting as a temporary judge, even without proper stipulation, become final upon expiration of the time for rehearing." (Id.at p. 814.) Here, as in appellant's earlier appeal, her failure either to make any objection to the commissioner sitting as a temporary judge or to draw attention to her alleged refusal to so stipulate, together with the fact she did not seek a rehearing before a juvenile court judge, has rendered the disputed ex parte order final. Therefore, appellant's purported appeal in No. A102668 from the order denying her second section 388 petition was untimely filed, and must be dismissed. (Brittany K., supra,96 Cal.App.4th at p. 814.)
APPEAL IN APPEAL No. A101698
Section 388, subdivision (a) provides in pertinent part: "Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified and . . . shall state the petitioner's relationship to or interest in the child and shall set forth in concise language any change of circumstances or new evidence which are alleged to require the change of order or termination of jurisdiction." UnderPage 1504California Rules of Court, rule 1432,15a petition for modification under section 388 "must be liberally construed in favor of its sufficiency." (Rule 1432(a).) On the other hand, "If the petition fails to state a change of circumstance or new evidence that might require a change of order or termination of jurisdiction, the court may deny the application ex parte." (Rule 1432(b).) Moreover, a petition may not be granted unless "it appears that the best interest of the child may be promoted by the proposed change of order or termination of jurisdiction,"andall the parties have stipulated to the requested modification or the court has held an evidentiary hearing at which the petitioner has the burden of proving "that the child's welfare requires such a modification." (Rule 1432(c), (d), (f).) Significantly, if the requested modification is for the removal of a child from the child's current home, the petitioner must make this showing by the higher standard of clear and convincing evidence. (§ 361, subd. (c); rule 1432(f).)16

Thus, in order to obtain a hearing on her section 388 modification petition, appellant was required to make a prima facie showing of changed circumstances or new evidence "that might require" the removal of the minors from their foster parents' home and their transfer to appellant's own custody and care in order to promote and protect the best interests and welfare of the minors. (Cal. Rules of Court, rule 1432(b), (c);In re Marilyn H.(1993)Page 15055 Cal.4th 295,309-310[19 Cal.Rptr.2d 544,851 P.2d 826].) "[I]f the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (In re ZacharyG.(1999)77 Cal.App.4th 799,806[92 Cal.Rptr.2d 20];In reEdward H.(1996)43 Cal.App.4th 584,593[50 Cal.Rptr.2d 745] ["A `prima facie' showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited"].)

The juvenile court's determination to deny a section 388 petition without a hearing is reviewed for abuse of discretion. (In re Stephanie M.(1994)7 Cal.4th 295,316-319[27 Cal.Rptr.2d 595,867 P.2d 706];In re Anthony W.(2001)87 Cal.App.4th 246,250[104 Cal.Rptr.2d 422];In re Zachary G.,supra,77 Cal.App.4th at pp. 805-806, 808.) We must uphold the juvenile court's denial of appellant's section 388 petition unless we can determine from the record that its decisions "`exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' [Citations.]" (In re Stephanie M., supra,7 Cal.4th at pp. 318-319; seeIn re Zachary G., supra,77 Cal.App.4th at p. 808.)

Moreover, in reviewing the juvenile court's determination, we bear in mind the fact that, "[i]n any custody determination, a primary consideration in determining the child's best interests is the goal of assuring stability and continuity. [Citation.] `When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' [Citations.] [¶] . . . [¶] After the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point `the focus shifts to the needs of the child for permanency and stability' [citation], and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. [Citation.] A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (In re Stephanie M., supra,7 Cal.4th at p. 317.)

In order to obtain a hearing on her section 388 petition, appellant had to allege a "change of circumstance or new evidence that requires changing the [juvenile court's] order." (Rule 1432(a)(6); seeIn re Edward H., supra,43 Cal.App.4th at p. 592.) In our previous opinion in this matter, filed FebruaryPage 150628, 2002, this court specifically upheld the juvenile court's failure to place the minors in appellant's care, based on our determination from the entire record that appellant "would not be an appropriate placement for the minors" because she "would pose a continuing risk of further emotional, psychological and possibly physical harm" to them. Thus, with regard to her more recent section 388 petitions, appellant was required,at aminimum,to make a prima facie showing thatshehad made sufficient improvements in her own personal circumstances, attitudes and outlook such that sheherselfcould now be considered an appropriate placement for the minors. (In reAnthony W., supra,87 Cal.App.4th at pp. 250-251;In re EdwardH., supra,43 Cal.App.4th at pp. 592-594.)

This appellant has failed to do. Virtually the entire focus of appellant's section 388 petition — which requested modification of the juvenile court's prior orders to remove the minors from the foster parents' care and place them with appellant as a new adoptive placement — was on the alleged unsuitability of the minors' foster placement with the D.'s, or respondent's alleged failure to give appellant or the biological mother access to the minors. Appellant's unsubstantiated allegations about the unfitness of the D.'s as foster parents for the minors were refuted by the recent social worker and court-appointed special advocate (CASA) reports submitted by respondent in opposition to the petition, and in connection with the intervening permanency review hearing, all showing that the minors had made dramatic progress under the foster parents' care. In contrast, appellant failed to makeanyshowing that her own personal circumstances had changed to such an extent that she herself could now be considered an appropriate placement for the minors.17In actuality, by so clearly demonstrating the lengths to whichPage 1507appellant would go to destabilize the minors' foster placement, and simultaneously revealing her own lack of genuine empathy for the reality of the minors' circumstances, appellant's petition actually demonstrated that her own circumstances had not changed at all, and that she continued not to be fit for consideration as a permanent placement for the minors.

Even if we were to conclude that appellant's section 388 petition made a prima facie showing of changed circumstances — which we do not — the juvenile court properly denied the petition because there was no showing that it was in the minors' best interests for the court to return them to appellant's custody. (In re Anthony W., supra,87 Cal.App.4th at pp. 251-252;In reZachary G., supra,77 Cal.App.4th at p. 808;In re ElizabethM.(1997)52 Cal.App.4th 318,323[60 Cal.Rptr.2d 557].) There was no independent evidence whatsoever that appellant had overcome the deficiencies that had made her a continuing risk of emotional, psychological and possibly physical harm to the minors, and was now ready to take them on a permanent basis. Neither was there any independent evidence that it was in the minors' best interests to be taken from the foster home where they were making substantial progress and from the foster parents with whom they were in the process of bonding, and thereby deprive them of the stability and permanence of their existing home. At this point in these dependency proceedings, the overwhelming consideration of both the juvenile court and of this court must be the minors' need for stability, continuity, and permanency. (In re Stephanie M., supra,7 Cal.4th at pp. 317-318, 323-324;In re Marilyn H., supra,5 Cal.4th at p. 309;In re Edward H., supra,43 Cal.App.4th at pp. 593-594.) Nothing in appellant's section 388 petition rebuts the presumption that continued foster care was in the best interests of the minors.

In sum, the record shows that appellant failed to meet her burden of making a prima facie showing of changed circumstances, or that the requested modification would promote the minors' best interests. (In re Zachary G., supra,77 Cal.App.4th at pp. 805-807;In re Edward H., supra,43 Cal.App.4th at pp. 592-594.) We conclude there was no abuse of discretion by the juvenile court in its denial of appellant's section 388 petition on appeal in No. A101698.
IMPOSITION OF RESTRAINING ORDER
Appellant contends that we must reverse the juvenile court's imposition of a restraining order against her because (a) it was in violation of her constitutional right to due process, and (b) it was unsupported by the evidence. Neither contention has any merit.Page 1508
SECTION 213.5 NOT UNCONSTITUTIONAL
Appellant asserts that the restraining order must be reversed because section 213.5, subdivision (a), pursuant to which it was issued, is "vague and overbroad," and in violation of substantive due process, because it unreasonably and arbitrarily restricts her fundamental rights without providing any clear or narrowly drawn definition of the term "stalking." There is no merit to appellant's constitutional claims.

Appellant defines the "fundamental rights" threatened by issuance of the restraining order pursuant to section 213.5 as her "fundamental right to maintain a relationship with her grandchildren, her right to participate in the dependency proceeding in order [to] ensure that her grandchildren are safe and are provided a suitable permanent home, her right to travel freely, her right to speak freely, etc." Contrary to her apparent assumption, appellant — a noncustodial grandparent of dependents of the juvenile court — has no substantive due process right to free association with the minors, or to maintain a relationship with them. The rights of grandparents to assert control over their grandchildren are restricted by state juvenile jurisdiction to determine and protect the best interests of dependent minors. (SeeTroxel v. Granville(2000)530 U.S. 57,60,64-66,69-73[147 L.Ed.2d 49,120 S.Ct. 2054] [grandparents have no constitutional right to visitation over the objections of fit, custodial parents];Miller v. California(9th Cir. 2004)355 F.3d 1172,1175-1176[despite their de facto parent status under California law, noncustodial grandparents of children who are dependents of the juvenile court have no substantive due process constitutional right to family integrity and freedom of association with their grandchildren];Mullins v. Oregon(9th Cir. 1995)57 F.3d 789,791,793-797[grandparents do not have any constitutionally protected substantive due process or other liberty interest in the adoption of their children's offspring].) Appellant has not cited any California authority for her asserted substantive due process right to maintain a relationship with her dependent grandchildren. We conclude that no such constitutional right exists.

We turn to appellant's contention that section 213.5 is unconstitutionally vague or uncertain. At issue is the following statutory provision: "After a petition has been filed pursuant to Section 311 to declare a child a dependent child of the juvenile court, and until the time that the petition is dismissed or dependency is terminated, upon application . . . the juvenile court may issue ex parte orders (1) enjoining any person from molesting, attacking, striking, sexually assaulting,stalking,or battering the child or any other child in the household; (2) excluding any person from the dwelling of the person who hasPage 1509care, custody, and control of the child; and (3) enjoining any person from behavior, including contacting, threatening, or disturbing the peace of the child, that the court determines is necessary to effectuate orders under paragraph (1) or (2). A court issuing an ex parte order pursuant to this subdivision may simultaneously issue an ex parte order enjoining any person from contacting, threatening, molesting, attacking, striking, sexually assaulting,stalking,battering, or disturbing the peace of any parent, legal guardian, or current caretaker of the child, regardless of whether the child resides with that parent, legal guardian, or current caretaker. . . ." (§ 213.5, subd. (a), italics added.) Appellant contends the statute is unconstitutionally vague, "unreasonable and arbitrary," because "it provides no guidelines whatsoever for deciding what `stalking' means." The issue appears to be one of first impression.

Appellant's constitutional challenge to section 213.5 must overcome the strong presumption favoring a law's validity. "All presumptions and intendments favor the validity of a statute and mere doubt does not afford sufficient reason for a judicial declaration of invalidity. Statutes must be upheld unless their unconstitutionality clearly, positively and unmistakably appears." (Lockheed Aircraft Corp. v. Superior Court(1946)28 Cal.2d 481,484[171 P.2d 21].) "`"A statute should be sufficiently certain so that a person may know what is prohibited thereby and what may be done without violating its provisions, but it cannot be held void for uncertainty if any reasonable and practical construction can be given to its language."' [Citation.]" (Williams v. Garcetti(1993)5 Cal.4th 561,568[20 Cal.Rptr.2d 341,853 P.2d 507].) "[A] claim that a law is unconstitutionally vague can succeedonlywhere the litigant demonstrates, not that it affects a substantial number of others, but that the law is vague as to her or `impermissibly vague inall of its applications.'[Citations.]" (People ex rel. Gallov. Acuna(1997)14 Cal.4th 1090,1116[60 Cal.Rptr.2d 277,929 P.2d 596].) In sum, "`"[r]easonable certainty is all that is required. A statute will not be held void for uncertainty if any reasonable and practical construction can be given its language." [Citation.] It will be upheld if its terms may be made reasonably certain by reference to other definable sources,' including `reference to other [statutes or] code provisions' [citations]. Other `definable sources' also include judicial decisions and common law [citations], legislative history, and other portions of the legislation. [Citations.] Finally, and sometimes most importantly, common sense is also to be considered. [Citations.]" (Personal Watercraft Coalition v. Marin County Bd. ofSupervisors(2002)100 Cal.App.4th 129,139[122 Cal.Rptr.2d 425].)

In accordance with these principles, section 213.5, subdivision (a) must not be found unconstitutionally vague unless no reasonable and practical construction of the statutory term "stalking" can be found by reference to other statutory, legislative and judicial sources, as well as common usage. InPage 1510common English, to "stalk" is defined as "to pursue quarry or prey stealthily or under cover," or more generally as "to pursue or follow in a stealthy, furtive, or persistent matter." (Webster's 3d Internat. Dict. (1970) p. 2221.) Certainly, this ordinary dictionary definition of the word is neither arcane nor obviously unrelated to the term as utilized in the statute itself, where it is linked to a variety of offensive behaviors including, among other things, "molesting," "contacting, threatening, or disturbing the peace." (§ 213.5, subd. (a).) To consider just one of these terms, "molesting" has been defined for purposes of section 213.5 as synonymous with "`"trouble, disturb, annoy or vex,"'" or "`"`to interfere with or meddle with unwarrantably so as to injure or disturb.'"'" (In re CassandraB.(2004)125 Cal.App.4th 199,212[22 Cal.Rptr.3d 686], citingPeople v. Lopez(1998)19 Cal.4th 282,289-290[79 Cal.Rptr.2d 195,965 P.2d 713].) So defined, the terms "stalking" and "molesting" may be understood as very close in meaning, with the former referring to a more ongoing and persistent form of molestation, carried out in the manner of a furtive or undercover pursuit.

The ordinary dictionary definition of the term is, moreover, close to that utilized in other statutes, to which we may refer for purposes of obtaining a "reasonable and practical" statutory construction of the term as used in section 213.5. (PersonalWatercraft Coalition v. Marin County Bd. of Supervisors, supra,100 Cal.App.4th at p. 139.) Thus, "the tort of stalking" is defined in Civil Code section1708.7as "a pattern of conduct the intent of which was to follow, alarm, or harass the plaintiff," as a result of which "the plaintiff reasonably feared for his or her safety, or the safety of an immediate family member," including any person who regularly resided in the plaintiff's household within the preceding six months (Civ. Code, §1708.7, subd. (a)); while "harass" is defined as "a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, torments, or terrorizes the person, and which serves no legitimate purpose." (Id.,subd. (b)(4).) A "pattern of conduct" in turn is defined as "conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose." (Id.,subd. (b)(1).) Criminal "stalking" is similarly identified in Penal Code section646.9with following or harassing another person (§ 646.9, subd. (a)); and harassment and "course of conduct" are defined for criminal purposes in terms virtually identical to the parallel definitions given in the civil statute (§ 646.9, subds. (e), (f)).18Page 1511

In utilizing these statutory provisions to aid in construing the statutory term "stalking" for purposes of section 213.5, it is not necessary for us to incorporate every aspect of the statutory definitions of that word as used in Civil Code section1708.7or Penal Code section646.9for the purpose of describing, respectively, the crime and the tort of "stalking." Rather, we may simply utilize these sources as references to aid us in determining if the term as used in section 213.5 is susceptible to a reasonable and practical construction, such that a person of ordinary intelligence would have notice of the conduct to be enjoined by a restraining order issued underthatstatute. If so, that is sufficient to uphold the constitutionality of section 213.5. (Williams v. Garcetti, supra,5 Cal.4th at p. 568;Personal Watercraft Coalition v. Marin County Bd. ofSupervisors, supra,100 Cal.App.4th at p. 139.)

On the basis of the definitions of the word used in the Penal and Civil Codes, the ordinary dictionary definitions of the term in common usage, and the clarifying language found in section 213.5 itself, we conclude that the term "stalking," as utilized in section 213.5, does not refer exclusively to the act of literally following someone, although it certainly includes that conduct. Instead, it refers broadly to conduct that is designed to "follow" a particular person in a more general sense, as in to pursue, monitor, watch or keep that person under surveillance for no legitimate purpose, and with the consequent effect of seriously harassing, alarming, annoying, tormenting, or terrorizing the person being followed, pursued, monitored, watched or kept under surveillance. (Cf.People v. Lopez,supra,19 Cal.4th at pp. 289-290;In re Cassandra B., supra,125 Cal.App.4th at p. 212.)

Appellant cannot overcome the strong presumption favoring the validity and constitutionality of the statute. Simply put, a reasonable person would necessarily be on notice that if she surreptitiously conceals herself for the purpose of making unauthorized contact with specific children, hires investigators to spy on them, videotapes their home, tracks their movements, and goes to their schools unannounced to see them and spread defamatory information about their caretakers, all resulting in emotional distress to the children and their caretakers, she would be engaged in "stalking," and subject to a restraining order under section 213.5. (Williams v. Garcetti, supra,Page 15125 Cal.4th at p. 568;Personal Watercraft Coalition v. Marin CountyBd. of Supervisors, supra,100 Cal.App.4th at p. 139.) Because a reasonable and practical construction can be given to the term "stalking" as used in section 213.5, derived from applicable statutory references and common usage, we hold that section 213.5, subdivision (a) is not unconstitutionally vague.
RESTRAINING ORDER SUPPORTED BY SUBSTANTIAL EVIDENCE
Appellant further contends that there was insufficient evidence to support the allegation that she engaged in "stalking," as used in section 213.5, and that the restraining order must be reversed on this basis. Appellant is wrong.

Appellant's uncontested behavior toward the minors and the foster parents in this case easily comes within a reasonable and practical construction of either of the statutory terms "molesting" or "stalking." Thus, the record shows appellant concealed herself at a scheduled visitation between the minors and their birth mother so as to obtain unauthorized access to them; surreptitiously searched out and located the confidential location of the foster residence, in violation of their intended privacy; hired a private detective to spy on the minors' comings and goings at their foster home; and showed up unannounced at each of the minors' schools, where she proceeded to make defamatory accusations about the foster parents to school authorities and attempted to make unauthorized contact with the minors. Particularly when considered in the larger context of appellant's relentless and unceasing attempts to remove the minors' from their caregivers' home, all this conduct was at the very least troubling, disturbing, vexing, and unwarrantably meddlesome to the minors and their foster parents, and unquestionably interfered with their attempts to stabilize and nurture their relationship with the goal of permanency and adoption. (In re Cassandra B., supra,125 Cal.App.4th at pp. 212-213.)

We conclude that appellant's conduct constituted a knowing and willful course of conduct specifically directed at the minors and the D.'s, which seriously alarmed, annoyed, tormented, and even terrorized them, and which served no legitimate purpose. As such, there was sufficient evidence to support a conclusion that appellant had been "stalking" the minors and the foster parents. There was no abuse of discretion by the juvenile court in imposing a restraining order pursuant to section 213.5.
TERMINATION OF DE FACTO PARENT STATUS
Appellant's final contention, and the subject of her appeal in No. A103987, is that the juvenile court's decision terminating her de facto parent status was an abuse of discretion. The contention is meritless.Page 1513

A "de facto parent" is "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 1401(a)(8);In re Patricia L.(1992)9 Cal.App.4th 61,66[11 Cal.Rptr.2d 631].) The juvenile court may grant de facto parents "standing to participate as parties in disposition hearings 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, by appointed counsel; [¶] (3) Present evidence." (Rule 1412(e);In rePatricia L., supra,9 Cal.App.4th at p. 66.)19

"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.]" (In re PatriciaL., supra,9 Cal.App.4th at pp. 66-67, fn. omitted.) Once granted, de facto parent status continues until terminated by the juvenile court or the dependency itself is terminated. If it believes de facto parent status should be terminated, the responsible social services agency or department must file a noticed motion, and "has the burden of establishing a change of circumstances which no longer support the status, such as when a psychological bond no longer exists between the adult and the child," or when the de facto parent no longer hasPage 1514reliable or unique information regarding the child that would be useful to the juvenile court. (Id.at p. 67.)

The juvenile court originally granted appellant the status of de facto parent on June 7, 2000. At the hearing on its motion to terminate appellant's de facto parent status, respondent clearly bore its burden of establishing by a preponderance of the evidence that as a result of changed circumstances, the considerations supporting appellant's de facto parent status no longer exist. Respondent presented substantial evidence showing that appellant no longer serves as a psychological parent to the minors. Respondent's witnesses testified that the D.'s had become the minors' psychological parents, appellant no longer played this role, and it would be disastrous or traumatic for the minors to be removed from their foster placement. Significantly, a witness called by appellant herself — the licensed clinical social worker who performed appellant's adoption homestudy and authored the report denying her home as a suitable placement for the minors — also testified to the same effect. By the same token, there wasno evidenceoffered showing that appellant herself filled the role of psychological parent to the minors. To the contrary, the evidence that was adduced on this subject showed that the minors rarely if ever mentioned appellant, or requested to see her.

Substantial evidence was similarly admitted showing that appellant does not possess any unique information regarding the minors that would assist the juvenile court in assessing their best interests. Appellant had not provided regular care to the minors for approximately three years, and had not even seen them — except for one surreptitious and unauthorized visit — for a year. Visitation had been suspended because of appellant's inappropriate comments to the minors and her frequent nonobservance of respondent's rules, and the concern of respondent and the juvenile court that she posed a substantial risk to the minors' emotional health and the stability of their placement. Moreover, respondent also introduced evidence from the minors' therapists showing that appellant's understanding of the minors' emotional needs was seriously deficient, and she appeared unable to recognize or acknowledge the duration or the severity of physical abuse and neglect previously suffered by the minors. It was reasonable for the juvenile court to conclude, as did the minors' therapists, that appellant's tendency to minimize the extent and impact of the abuse and neglect previously suffered by the minors restricted her ability to understand their emotional needs, and compromised the reliability or usefulness of any assistance she might be able to give the juvenile court in assessing their best interests.

De facto parent status is also granted, in part, to permit an adult to protect his or her potential custody interests in a dependent child where a future proceeding may result in an order permanently foreclosing any futurePage 1515contact between the child and the adult. (In re B.G.(1974)11 Cal.3d 679,692-693[114 Cal.Rptr. 444,523 P.2d 244];In rePatricia L., supra,9 Cal.App.4th at pp. 66-67.) Both before and after the parental rights of the minors' biological parents were terminated, appellant attempted to gain adoptive placement of the minors. The state adoptions office performed a homestudy and denied appellant's application to adopt the minors — which denial was subsequently upheld on administrative review — based on her inability to recognize the minors' needs, her own past history as an abusive parent, her strong support for corporal punishment, and her demonstrated inability to put the minors' needs ahead of her own. The juvenile court refused to grant appellant's request for custodial placement of the minors, and we upheld that refusal in our previous decision in this matter, based in part on the evidence showing that appellant would be an inappropriate placement for them.

Nothing has happened since our last opinion in this case to change the conclusion to which we came at that time. To the contrary, appellant's conduct since the January 25, 2001, section 366.26 hearing terminating the parental rights of the minors' biological mother has simply provided even stronger evidence of appellant's unfitness to serve as their custodial parent. Despite the unanimous reports showing that the minors have done well in foster care, and their manifest need for stability and permanence, appellant has obstinately refused to acknowledge any progress they have made. Rather than attempting in any positive way to support the minors in their growth, she instead has relentlessly tried to undermine and discredit the foster parents and destabilize the minors' placement with them. Her ongoing efforts — including but not limited to surreptitiously concealing herself in an attempt to gain unauthorized access to the minors, hiring a private investigator to spy on and videotape the minors and their foster parents at their confidential residential address, seeking out negative information about the D.'s from neighbors and a former spouse, showing up unannounced at both of the minors' schools, and disseminating inflammatory material about the D.'s to school authorities and others — have predictably and understandably caused substantial emotional distress to the minors and their foster parents, and placed their foster placement and potential adoption in serious jeopardy.

In short, appellant has by her own actions forfeited any custody interest she might have had in the minors, and convincingly demonstrated that she no longer meets the requirements for de facto parent status. The juvenile court clearly did not abuse its discretion in making the determination to terminate that status.Page 1516
DISPOSITION
The appeal in No. A102668 is dismissed as untimely. In all other respects, the orders, decisions and determinations of the juvenile court from which appellant appeals are affirmed in their entirety.

Parrilli, J., and Pollak, J., concurred.

A petition for a rehearing was denied April 26, 2005, and appellant's petition for review by the Supreme Court was denied June 8, 2005.Page 1517
  1. Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of the Factual and Procedural Background. ↩
  2. Pursuant to California Constitution, articleVI, section21. ↩
  3. Unless otherwise indicated, all further unspecified statutory references are to the Welfare and Institutions Code. ↩
  4. As of the date of issuance of the order terminating appellant's de facto parent status, Brittany was 13 and Amanda was 10 years of age. ↩
  5. See footnote,ante,page 1497. ↩
  6. Unless otherwise indicated, all further references to rules are to the California Rules of Court. ↩
  7. Among other things, appellant alleged that Mr. D. had been arrested for drunk driving in 1995, and convicted of public drunkenness in 1996; Mrs. D. had permitted the minors to visit the home of her daughter and son in law, despite the latter's "extensive criminal history of domestic violence and substance abuse"; Mr. D. had been married six times, and Mrs. D. had been married three times; Mrs. D.'s mother had died in 2001 "from a ten-year bout with cirrhosis of the liver"; Mr. D. had been "institutionalized . . . on several occasions due to substance abuse, depression, suicide threats, and other mental problems"; Mr. D. had a "serious alcohol abuse problem"; Mr. D. had "inflicted great bodily harm upon his ex-wives" and "severely beat his children from previous marriages"; Mr. D. failed to provide support for his children from previous marriages; and he was "dangerous when he has consumed alcoholic beverages."

    In addition, appellant revealed that a "private investigator" had taken photographs and made a videotape of the foster family's residence, purportedly showing a broken and boarded up sliding glass door and a "wildly overgrown and upgraded [sic]" yard area, allegedly showing that the residence was "unsafe for children" and "reveal[ing] the real possibility that violent acts are currently occurring in, and may be a regular part of the [D.] household." ↩
  8. Under "Areas of Concern," the CASA report stated: "Since this CASA's last court report, maternal grandmother Ellen [J.] has filed a petition requesting that the girls be removed from their current foster home and has also requested a restraining order against [Mr. D.] Having reviewed these documents filed by [appellant], CASA is dismayed that [appellant] continues to attempt to undermine the stable, healthy home situation these girls are now enjoying and that she continues to jeopardize their adoption by the [D.'s]. CASA has had several long visits with the girls in the presence of [Mr. D.] and has been very favorably impressed with his intelligence and perception about the girls and their relationship to each other and the family dynamics and interactions as a whole. He is easygoing and loving with the girls, and they are obviously very fond of him. CASA continues to hope that the [D.'s] will formally adopt [the minors], but [appellant] maternal grandmother's persistent adversarial stance is disconcerting to [the D.'s] and serves as a negative reminder of the girls' former family environment." ↩
  9. Pinter noted that Amanda "was just on the honor roll," and had been "student of the month," and that "[b]oth of the girls' grades are very good." ↩
  10. At the hearing, Pinter testified that, contrary to appellant's claims, Mr. D. had not tried to hide the previous charges against him of driving under the influence, and had reported the matter on his application to be a foster parent; and that Mrs. D.'s arm had never been broken, either by Mr. D. or any other cause.

    Pinter fully rebutted appellant's factual claims in a letter to respondent's social worker assigned to the case, dated March 11, 2003, written in response to the allegations made in appellant's second section 388 petition, and admitted at the hearing in this matter as respondent's exhibit 1. Pinter wrote that "several allegations were made [in the documentation accompanying appellant's second section 388 petition] that can not be substantiated and are libelous." Among other things, Pinter affirmed that — contrary to the assertions of appellant — the D.'s had encouraged the minors to maintain their relationship with their birthmother; Mrs. D.'s mother had not been an alcoholic; Mr. D. had never been institutionalized for substance abuse, depression, suicide threats or mental problems; Mr. D. had regularly provided child support for his children; Mr. D. had never "beat up" Mrs. D. or broken her arm; the D.'s home was not across the street from a bar; the D.'s home was in a rural location with a church across the street and to the right; the D.'s house and yard area presented no safety hazards or concerns; and although D. acknowledged problems in his previous marriage 28 years earlier, he had since changed, was no longer drinking, and regularly attended Alcoholics Anonymous meetings. ↩
  11. Thus, in an application for a restraining order against Mr. D. attached to appellant's second section 388 petition, appellant alleged that the foster father was 6 feet, one inch in height, weighed 250 pounds, and had brown eyes. Pinter testified that in fact, Mr. D. "is about 5'8" [tall], he's pretty thin. He probably weighs 150 [pounds]. He has blue eyes, just a slight gray haired man." ↩
  12. Questioned about whether the "adversarial relationship" between respondent and appellant had influenced her conclusions or findings, Wagner testified: "I think quite the contrary. I knew that it was kind of a difficult case. I really made an effort and commitment to go into it with my eyes wide open and to gather whatever information I could and come to my own conclusion." ↩
  13. Initially, through her attorney, appellant invoked her Fifth Amendment "right not to testify against herself." Appellant agreed to testify after the juvenile court granted her immunity limiting her testimony to this civil proceeding. ↩
  14. Appellant's testimony was inconsistent on this point. On the one hand, she testified that she did not "recall reading" the various reports from the social worker and the CASA stating that the minors "were flourishing in their current placement with the [D.'s]." Subsequently, and in direct contradiction to this, she testified that she made her unannounced visit to the minors' schools because "`[she] wanted to investigate CASA's statement the girls are flourishing in their environment.'" ↩
  15. Regarding her conclusion that the D.'s were unfit foster parents, appellant testified: "I have a lot of years in law enforcement and you pick up on things that you need to watch out for. No, it was not somebody I would want my children to be with." ↩
  16. On July 7, 2004, appellant filed (a) a motion to take judicial notice of documents filed in the dependency proceedings since November 6, 2003, as well as "briefs, motions and other documents" filed in the earlier appeal in No. A094158; and (b) a motion to take additional evidence pursuant to Code of Civil Procedure, section909. By order filed July 20, 2004, this court deferred both motions to our consideration of this appeal on its merits. We now deny both of appellant's motions.

    The material filed since November 6, 2003, was obviously not before the juvenile court at the time it issued the orders under consideration on this appeal. We decline to grant the request for judicial notice of this material on that basis. The other material of which appellant seeks judicial notice basically consists of the appellate record in the earlier appeal, previously decided in No. A094158. (In re Brittany K.(2002)96 Cal.App.4th 805.) This material has already been considered by this court in making our decision in that appeal, and is of no relevance or materiality to the issues currently before us.

    With regard to appellant's motion to take additional evidence, the material in question consists of a declaration by appellant's appellate attorney reciting alleged facts occurring since the events at issue on this appeal, with accompanying documentation. We decline appellant's invitation to open up this case for post hoc reevaluation of the decisions of the juvenile court based on alleged information not before it at the time it made the determinations at issue on this appeal. The motion is therefore denied. (In re Zeth S.(2003)31 Cal.4th 396,412-414.)

    On March 9, 2005, appellant filed another motion to take judicial notice, this time requesting that we take judicial notice of "the records on appeal and other documents filed in [her] subsequent related appeals" in Nos. A104616, A104823, A106089, A107843, A108313, A108537 and A108758. Clearly, this material was not before the juvenile court at the time it issued the orders at issue on this appeal. Because appellant failed to make any showing of how the information of which she seeks judicial notice was relevant or material to the particular issues before us onthis appeal,we denied the motion by order dated March 15, 2004. (Ct.App., First Dist., Local Rules, rule 10(a).) ↩
  17. Unless otherwise indicated, all further references to rules are to the California Rules of Court. ↩
  18. Rule 1432(f) states in pertinent part: "The petitioner requesting the modification under section 388 has the burden of proof. If the request is for the removal of the child from the child's home, the petitioner must showby clear and convincingevidencethat the grounds for removal in section 361[, subdivision] (c) exist." (Italics added.)

    Section 361, subdivision (c) in turn provides in pertinent part: "A dependent child may not be taken from the physical custody of his or her parentsor guardian or guardians with whomthe child resides at the time the petition was initiated,unless the juvenile court findsclear and convincing evidenceof any of the following:

    "(1) There is a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor . . ., and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parents' or guardians' physical custody. [¶] . . . [¶]

    "(3) The minor is suffering severe emotional damage, as indicated by extreme anxiety, depression, withdrawal, or untoward aggressive behavior toward himself or herself or others, and there are no reasonable means by which the minor's emotional health may be protected without removing the minor from the physical custody of his or her parent or guardian.

    "(4) The minor or a sibling of the minor has been sexually abused, or is deemed to be at substantial risk of being sexually abused, by a parent, guardian, or member of his or her household, or other person known to his or her parent, and there are no reasonable means by which the minor can be protected from further sexual abuse or a substantial risk of sexual abuse without removing the minor from his or her parent or guardian, or the minor does not wish to return to his or her parent or guardian.

    "(5) The minor has been left without any provision for his or her support, or a parent who has been incarcerated or institutionalized cannot arrange for the care of the minor. . . ." (Italics added.) ↩
  19. Thus, appellant alleged as changed circumstances that the foster parents had declined to adopt the minors because of their bond with the biological mother; respondent had restricted posttermination visitation by the biological mother; respondent had refused to schedule visitation for appellant; the social workers had failed to tell the juvenile court that Mr. D. allegedly had "a recent criminal conviction and had been married six times"; and the CASA and the social worker had made reports indicating that the minors were having difficulty bonding with the foster parents. The only allegedly "changed circumstances" related to appellant herself were that appellant had been found to be qualified as a foster parent by Yolo County, and evaluated "by two psychologists" to be "psychologically appropriate to care" for the minors; and appellant still had "a strong bond" with the minors, despite her lack of any recent contact.

    Aside from the statement in her declaration, there was nothing in the record before the juvenile court on appellant's first section 388 petition to substantiate appellant's assertions about her qualification as a foster parent in Yolo County or her evaluation by "two psychologists." These evaluations did not become part of the record until they were submitted by appellant in connection with her opposition to respondent's motion to terminate her de facto parent status. The evaluations were conducted in 2000, and were therefore not "new evidence." Moreover, they were contradicted by subsequent peer review, which came to the conclusion that appellant's demonstrated personality patterns presented grounds for serious concern about her ability to function effectively as a custodial parent. ↩
  20. Penal Code section646.9provides in pertinent part: "(a) Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking. . . . [¶] . . . [¶] (e) For the purposes of this section, `harasses' means engages in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose. [¶] (f) For the purposes of this section, `course of conduct' means two or more acts occurring over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of `course of conduct.' [¶] (g) For the purposes of this section, `credible threat' means a verbal or written threat, including that performed through the use of an electronic communication device, or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct, made with the intent to place the person that is the target of the threat in reasonable fear for his or safety or the safety of his or her family, and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family. It is not necessary to prove that the defendant had the intent to actually carry out the threat." ↩
  21. The rights of de facto parents with respect to juvenile dependency proceedings are thus greater than those accorded to relatives of dependent children. Although relatives may, "[u]pon a sufficient showing to the court," be permitted to be present at hearings and to address the court (rule 1412(f)), de facto parents have these rights by virtue of their status without the need for any additional showing. In addition, as a party, the de facto parent has the right to be represented by counsel and, most significantly, has the right to present evidence at hearings. (Rule 1412(e).)

    "From these rules we discern the importance of de facto parent status: the status provides a nonbiological parent who has achieved a close and continuing relationship with a child the right to appearas a party,to be represented by counsel, and present evidence at dispositional hearings. Absent such status, very important persons in the minor's life would have no vehicle for `assert[ing] and protect[ing] their own interest in the companionship, care, custody and management of the child' [citation] and the court would be deprived of critical information relating to the child's best interests. [Citations.]" (In re Patricia L., supra,9 Cal.App.4th at p. 66.) ↩