uncle who lives in the family home.130 In contrast, courts have found
that neither a minor sibling131 nor a grandparent’s boyfriend who did
not reside in the home132 is a legally responsible person.
The court’s determination depends on an evaluation of the
relationship of the person to the child and whether that person
assumed a parental role.133 If the person meets the “legally
responsible” standard, he or she is entitled, at the initial hearing and
thereafter, to notice, advisement of his or her legal rights, standing as
a full party in the proceedings, and court-appointed counsel if he or
she is indigent.134 This statutory scheme protects the relationship of
the psychological parent and child when child welfare proceedings
are initiated, and adequately addresses the concerns raised in the
illustrative case above.
In California, as in many states, when dependency
proceedings are initiated, there are seven essential rights afforded by
statute—the right to notice, the right to appear with counsel, standing
to participate fully in all proceedings, the right to physical custody of
the child, the right to visitation, the right to appeal, and the right to
reunification services. Generally, only mothers, presumed fathers,
adoptive parents, and legal guardians are entitled to these rights
under California dependency law. Until these statutes are expanded
to embrace psychological parents and afford them the same rights as
legal guardians, dependency courts should take action to cure this
130 See In re Dayquon G., 803 N. Y.S.2d 510, 510 (App. Div. 2005).
131 See Catherine G. v. Cnty. of Essex, 818 N.E.2d 1110, 1112-13 (N.Y. 2004).
132 See In re Brent HH., 765 N.Y.S.2d 671, 674 (App. Div. 2003).
133 See generally Matter of Yolanda D., 673 N.E.2d 1228, 1231 (N.Y. 1996)
(recognizing that while parenting functions will not always be performed by a legal
parent, determination of whether a person is acting in loco parentis is a
discretionary decision that will depend on the facts of each individual case).
134 See N.Y. FAM. CT. ACT § 1023 (McKinney 2013) (providing notice for “person
legally responsible” that temporary protective order would be sought and
preliminary hearing held); N. Y. FAM. CT. ACT § 1033-b (McKinney 2013)
(providing for advisement and right to court-appointed attorney for indigent
respondents at initial hearing).