was Texas, with 30,000 children.41 The third, fourth, and fifth largest
foster care populations were in New York, Florida, and Illinois,
respectively, and each of these three states had nearly 20,000
children in foster care.42 Undoubtedly, a number of these children
came from non-traditional families with no legal parent present in
their life. Unless a legal guardianship was already established, the
person standing in loco parentis43 has no rights under current
dependency law when a child welfare case is initiated.
As the state with the nation’s largest foster care population,
California provides a compelling example of the problems that occur
when the state fails to recognize non-traditional families. An analysis
of California’s laws demonstrates that the existing system does not
do enough to protect these modern families. This example, in
conjunction with an explanation of other states’ laws that do not
grant rights to non-traditional parents, illustrates how current laws
fail these modern families at their most critical moment—during the
preliminary hearings of child welfare cases when the court first
determines whether the state’s intrusion and the removal of the child
from the home is justified.
IV. An Illustrative Case in California Dependency Court
Imagine a ten-year-old child who has been raised from the
age of two by her maternal grandmother.44 The child’s birth mother
is deceased and the biological father listed on the birth certificate has
never contacted the child. The grandmother has a high school
education and struggles financially but manages month-to-month.
LAST DAY OF EACH FEDERAL FISCAL YEAR (2012),
43 Latin for “in place of a parent” and meaning “[o]f, relating to, or acting as a
temporary guardian or caretaker of a child, talking on all or some of the
responsibilities of a parent.” BLACK’S LAW DICTIONARY 858 (9th ed. 2009) (citing
as an example that, during the school day, a teacher may act in loco parentis).
44 This is a hypothetical case that is loosely based on a fact pattern drawn from
numerous cases that the Author has worked on in her dependency practice.