Opinion
D059391
09-28-2011
In re ROSA C. et al., Persons Coming Under the Juvenile Court Law. IMPERIAL COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. JAVIER. M. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. Nos. JJP02142, JJP02143)
APPEALS from orders of the Superior Court of Imperial County, Juan Ulloa, Judge. Appeals dismissed.
Javier M., the biological father of Rosa C., appeals the juvenile court's order placing Rosa in the custody of her presumed father, Juan C. In addition to Rosa, an order placed her half brother, Carlos C., in the custody of Juan. Carlos and Rosa also appeal the placement orders.
While these appeals were pending, Rosa was removed from Juan's custody and placed with Javier. Carlos also was removed from Juan's custody, and his dependency case was scheduled for a Welfare and Institutions Code section 366.26 hearing. These developments render these appeals moot. We therefore dismiss the appeals.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL HISTORY
On March 4, 2009, the Imperial County Department of Social Services (the Department) filed dependency petitions alleging that one-year-old Rosa and her newborn half brother Carlos were at substantial risk of harm because of substance abuse by their mother, Priscilla P. (§ 300, subd. (b).) Carlos had tested positive for methamphetamine at birth.
At the detention hearing, the court returned Rosa to Juan's custody; Carlos remained in protective custody. Later that month, Rosa and Juan had positive drug tests. The Department filed an amended petition, which was sustained; Rosa was detained in foster care. By the end of the month, Rosa and Carlos were placed in the same foster home.
Juan, listed as the father on the birth certificates of both children, held out the children as his own and provided for their care and support. In May, the juvenile court found Juan was the presumed father of both children. The court declared the children dependents of the court and removed them from the custody of Juan and Priscilla. The court ordered reunification services for Juan, but not for Priscilla. At the six-month review hearing, the court continued Juan's services for six months.
In February 2010, Javier filed a section 388 petition in propria persona, asking the court to order paternity testing and appointment of the counsel representing him in
another dependency case. Javier alleged he was Rosa's biological father and was at the hospital when Rosa was born, and had brought clothing and diapers for Rosa to the hospital but Priscilla had him removed. The court denied the section 388 petition.
Attorney Larry Dawson represented Javier in the dependency case of his son, Javier M., Jr. (Javier Jr.). Priscilla is the mother of Javier Jr.
Attorney Dawson appeared on behalf of Javier at Rosa and Carlos's 12-month review hearing on May 3. The court reconsidered Javier's section 388 petition. The court ordered paternity testing for Rosa and appointed Dawson to represent Javier in this case. The court denied Javier's request for visitation. Also at the 12-month review hearing, the court ordered an additional six months of services for Juan.
After the paternity tests showed Javier was Rosa's biological father, he filed a second section 388 petition, seeking a change in status from alleged father to biological father, visitation and services. Javier pointed out he had completed a parenting class and had obtained full physical custody of Javier Jr. The Department supported Javier's petition.
At the 18-month review hearing on September 27, the court denied Javier's petition with respect to services and visitation. The court said that Javier, as a biological father, was not entitled to services. Also at the 18-month review hearing, the court ordered further reunification services for Juan.
Javier appealed the denial of services and visitation, and we reversed. (In re Rosa C. (Apr. 5, 2011, D058316) [nonpub. opn.].) The remittitur was issued June 6, 2011. By written order dated May 19, 2011, this court granted Javier's unopposed motion to take judicial notice of the opinion. (Evid. Code, § 459.)
In November 2010, counsel for Rosa filed a section 388 petition, seeking visitation between Rosa and Javier Jr. The court granted the petition.
On March 14, 2011, Javier filed his third section 388 petition, which sought custody of Rosa and termination of services to Juan. At the 24-month review hearing, the court denied Javier's petition. Also at the 24-month review hearing, the court ordered the Department to return Rosa and Carlos to Juan's custody and provide family maintenance services for an additional six months. Javier and the children's counsel filed timely notices of appeal. Since the 24-month review hearing, the Department filed a section 387 petition, alleging Juan used drugs in the presence of the children.
By written order dated September 15, 2011, we augmented the record before us with postjudgment documents from the superior court file. (Cal. Rules of Court, rule 8.410(b)(1).) We recognize in other contexts we may not consider postjudgment or postorder documents. (See In re Zeth S. (2003) 31 Cal.4th 396, 413 [appellate court may not rely on postjudgment declaration in reversing order terminating parental rights].) Here, however, we have augmented the record because the documents were relevant to our determining whether the appeals are moot.
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On July 18, the court removed Rosa and Carlos from Juan's custody and ordered unsupervised visitation for Javier. On August 10, the court sustained the section 387 hearing and placed Rosa with Javier.
On August 29, the court ordered services to Juan be terminated. The court also continued placement of Rosa with Javier, ordered the Department to provide family maintenance services for Javier, and scheduled a section 366.26 hearing for Carlos.
DISCUSSION
We conclude the appeals are moot because both children no longer are placed with Juan, and Rosa has been placed with Javier. An appeal becomes moot when events make it impossible for the appellate court to grant the appellant effective relief. (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316.) We decide on a case-by-case basis whether subsequent acts or events in a dependency case make the appeal moot and whether our decision would affect the outcome of the case in a later proceeding. (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1055.) We may dismiss an appeal that has become moot. (In re Dani R. (2001) 89 Cal.App.4th 402, 404.)
In In re Dani R., supra, 89 Cal.App.4th 402, the mother appealed a dependency court order that denied her request for reunification services with her child. While the appeal was pending, the dependency court granted the mother's new petition for reunification services. The Court of Appeal dismissed the appeal because the mother's subsequent receipt of the services made the appeal moot. (Id. at p. 406.)
In In re C.C. (2009) 172 Cal.App.4th 1481, the mother appealed a dependency court order denying her request for monitored visitation with her child. While the appeal was pending, the dependency court restored monitored visitation and terminated its jurisdiction. The Court of Appeal observed the appeal was moot because the subsequent order provided the mother with the relief she had been seeking, but nevertheless decided to reach the merits of the appeal. (Id. at pp. 1488-1489.)
This case is similar to Dani R. and C.C. Javier's appeal and the appeal on behalf of the children are based on an order placing the children with Juan. While these appeals were pending, as in both Dani R. and C.C., Javier and the children effectively obtained the relief they sought by appeal—the children were removed from Juan's custody and Rosa was placed with Javier. Therefore, the appeals are moot.
DISPOSITION
The appeals are dismissed.
MCDONALD, J.
WE CONCUR:
HALLER, Acting P. J.
AARON, J.