Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. Nos. J0700689, J0700690, J0700691
Richman, J.
B.F. is the mother of E.G., who was declared to be a dependent child by the Contra Costa Juvenile Court in January 2008. B.F. appeals from the order of that court made on August 14, 2008 dismissing the dependencies of E.G. and his two brothers. B.F. contends that it was error for the court to dismiss the dependencies without vacating the jurisdictional findings.
The change from referring to the mother as B.G. in our first opinion and B.F. in this opinion is due to her advising in her opening brief that she “has resumed using her maiden name.”
We previously dismissed B.F.’s appeal from the dispositional order upon learning that the dependency had been terminated. The record of the August 14 hearing shows that B.F. never objected or raised the point she now identifies as prejudicial error. Moreover, by appealing from the dismissal order itself, B.F. is attempting to obtain what in plain effect is an impermissible rehearing of the merits of our decision to dismiss the prior appeal as moot. In light of these conclusions, we affirm.
BACKGROUND
This is the second appeal from the dependency determination. Respondent Contra Costa County Children and Family Services Bureau (Bureau) requests that we take judicial notice of the record in the first appeal. There being no opposition by B.F., who cites to that record in her opening brief, the request is granted.
Our opinion in the first appeal was as follows:
“B.G. and E.G. are the parents of minor E.G.-I and two siblings. They each appealed from the order of the Contra Costa County Juvenile Court declaring all three minors to be dependent children.
“Respondent Contra Costa County Children and Family Services Bureau has moved to dismiss the parents’ appeals on the ground that the matter is moot. In support of its motion, respondent asks this court to take judicial notice of a subsequent order of the juvenile court terminating the dependency. B.G. and E.G. have each filed opposition to respondent’s motion to dismiss. B.G. asks this court to take judicial notice of her notice of appeal from the termination order.
“ ‘ “ ‘[T]he duty of this court, as of every judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.’ [Citation.]”... ‘It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. [Citations.]’ ” ’ (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.) This standard applies to appeals from orders of the juvenile court in dependency proceedings. (E.g., In re Dani R. (2001) 89 Cal.App.4th 402, 404-405; In re Dylan T. (1998) 65 Cal.App.4th 765, 769; In re Audrey D. (1979) 100 Cal.App.3d 34, 39, fn. 4.)
“The circumstances in which respondent moves to dismiss this appeal as moot are as follows: On January 16, 2008, the juvenile court, having already sustained jurisdictional allegations of the petitions on file, ordered that dependent minor E.G. be removed from his mother’s custody and that he be placed with his father. The other dependent minors were left in the mother’s custody. On August 14, 2008, after mother and father had commenced their respective appeals, the juvenile court dismissed all three of the dependencies.
“This is a compelling case for finding mootness. The reasons for state intervention have been resolved to the satisfaction of the juvenile court. Although the parents concede they are in the midst of an acrimonious dissolution of their marriage, they present no reasons for believing that another intervention by respondent is either imminent or even likely. Reversal of the original dispositional would achieve nothing more than the juvenile court has already done by terminating its jurisdiction.
“The parents both assert that their appeals are not moot because the dismissed dependencies nevertheless have the potential to adversely affect [sic] in the future. They argue that, having been given reunification services, the amount of those services might be deducted from the services they could get if new dependencies are initiated. They also argue that they might be assessed the costs of the dismissed dependencies pursuant to Welfare and Institutions Code section 903 and 903.1. The likelihood of these consequences is entirely speculative. We decline to ignore the mootness doctrine based on hypothetical possibilities about what might happen if there are additional dependencies in the future.
“Moreover, we can advise the parents that we have seen numerous instances where a resumption of dependency jurisdiction is treated as starting the clock anew on the provision of reunification services. The pertinent statutory language pegs the provision of services to “the date the child entered foster care” (Welf. & Inst.Code, § 361.5, subds. (a)(1)-(a)(2)), and the juvenile courts in our experience do not treat this language as cumulative.
“We note that the circumstances presented here are virtually identical to those in In re Michelle M. (1992) 8 Cal.App.4th 326, where Division Five of this District dismissed a parent’s appeal from a dispositional order as moot in light of the juvenile court’s termination of its jurisdiction. Although both parents ask us to exercise our discretion to decide what might otherwise qualify as a moot appeal because an important issue of public interest is presented, nothing in the record before us suggests that this case has ramifications beyond the single family and individuals involved.
“The requests for judicial notice are granted. The motion to dismiss is granted, and the appeals are ordered dismissed.” (In re E.G. (Oct. 17, 2008, A120662) [nonpub. opn.].)
At the time we granted the Bureau’s request to dismiss the first appeal, we did not have a reporter’s transcript of the August 14 hearing that resulted in the termination of the dependencies. We now have that transcript. It shows the following:
The hearing occurred in the morning and in the afternoon. E.G.’s father was not present in the morning. The morning session opened with the juvenile court stating that it had received a report from the Bureau with the recommendation that the court terminate dependency jurisdiction. Counsel for the Bureau then advised the court that “There is a tentative agreement that’s been worked out between the parties.” Counsel then stated the terms of the agreement, which were that the father would have physical custody of E.G., while B.F. would have physical custody of the two other minors, with specified reciprocal visitation.
After some details were settled, B.F.’s counsel stated: “[O]n behalf of the mother, we’ll submit it on the report as to this language, the tentative language [of the settlement]. [¶] We would like to preserve all issues on appeal currently. We have not and are not today agreeing to any of the original jurisdictional findings.” The morning session ended when father’s counsel stated that father might be present in the afternoon.
Father was present in the afternoon; B.F. was not. The court stated that “we placed some matters on the record this morning constituting the tentative agreement.” Father’s counsel told the court, “I went over what we discussed and what we put on the record with my client. He is fine with the agreement.” At the court’s request, counsel for the Bureau then recited the terms of the agreement.
Counsel for the Bureau concluded his recital by inquiring, “So is this matter now submitted based on the information that was just placed on the record?” Father’s counsel responded: “On behalf of the father, he would like the court to know as well—well, as the Court knows, this matter is on appeal. [¶] He would like to preserve all rights and appellate rights as to this proceeding and the prior appeal. He does not believe jurisdiction should have been taken in this case in the first place. [¶] The other issue he has, going over this agreement—well, he objects to submitting the costs for supervised visits. He wanted the Court to know that. [¶] On that, we’d submit it.” Counsel for B.F. also submitted.
The court concluded the hearing by ruling: “Okay. With that, I am a little hesitant to call it a tentative agreement now. We have a tentative agreement except that, as I understand it, [the father] wants the record to reflect that he is objecting to paying half of the costs [for supervised visitation].” “Okay. I will adopt those recommendations and they’ll become the order of the court. [¶] With that, the court is now prepared to vacate the dependency matters and dismiss the petitions as to all three of the children.”
This is the order from which B.F. has appealed.
DISCUSSION
B.F. is candid in her goals and the scope of her appeal. She states that she “does not challenge the propriety of the dismissal, or the dismissal of the dependency petitions, but objects to the trial court’s failure to vacate the jurisdictional findings as part of the exit orders,” on the ground that “there never was justification for the assumption of juvenile court jurisdiction from the beginning.” The Bureau responds that B.F. “has forfeited this issue because she never asked the court to set aside the jurisdictional findings,” and because “this court’s determination that the issues in the appeal from the disposition hearing [sic] were moot is the law of the case.” We conclude that both of the Bureau’s points are well-taken.
“In dependency litigation, nonjurisdictional issues must be the subject of objection or appropriate motions in the juvenile court; otherwise those arguments have been [forfeited] and may not be raised for the first time on appeal.” (In re Christopher B. (1996) 43 Cal.App.4th 551, 558.; accord, In re S.B. (2004) 32 Cal.4th 1287, 1293 & fn. 2; In re A.E. (2008) 168 Cal.App.4th 1, 5.) It is unmistakably clear from the reporter’s transcript of the August 14 hearing that at no time did B.F. mention the issue of the juvenile court vacating the jurisdictional findings in connection with dismissing the dependencies. Although there are passing mentions in her opening brief of B.F. making such a request—without specifying when such requests were made or citation to the record—no objection appears in the transcript of the August 14 hearing. We therefore conclude that the issue has not been preserved for review.
In her reply brief, B.F. insists that she did “preserve the issue by timely objection,” citing page 6 of the August 14 reporter’s transcript. That page records B.F.’s counsel as informing the court: “We would like to preserve all issues on appeal currently. We have not and are not today agreeing to any of the original jurisdictional findings.” This is a far cry from actually requesting or inviting the court to vacate those findings.
Perhaps anticipating this conclusion, and in the hope of avoiding its consequence, B.F. argues that the juvenile court had a sua sponte duty to take such action without a request from her. Yet she cites no authority compelling the court to make such an unprompted intervention. And the argument flies in the face of the principle that “A party on appeal cannot successfully complain because the trial court failed to do something which it was not asked to do....” (In re Cheryl E. (1984) 161 Cal.App.3d 587, 603.)
B.F. also anticipated the Bureau invoking the law of the case, and argues that it should not be applied here. We are not persuaded.
“Where questions presented on a subsequent appeal were necessarily involved in a former appeal, and the conclusion arrived at on the former appeal could not have been reached without expressly or impliedly deciding the question subsequently presented, the decision on the former appeal is the law of the case and rules throughout all subsequent stages of the action.” (Stock v. Meek (1952) 114 Cal.App.2d 584, 586.) Law of the case can be based upon a motion to dismiss a prior appeal if decided by a full panel of the Court of Appeal with an opinion. (See Kowis v. Howard (1992) 3 Cal.4th 888, 900-901; In re Christopher A. (1991) 226 Cal.App.3d 1154, 1158-1161; Stock v. Meek, supra, 114 Cal.App.2d 584, 587.)
The issue of mootness was clearly necessarily involved in the first appeal. Indeed, it was the sole basis for dismissing the first appeal. That basis was explained in a written opinion by a full panel of this court. B.F. argues that the dismissal of the first appeal was not based upon the grounds she now asserts, i.e., “the legal sufficiency of the jurisdictional facts on the merits.” But law of the case is not limited to the issues a party sees as dispositive or wishes to have decided.
“However, the doctrine of the law of the case... is merely a rule of procedure and does not go to the power of the court. It will not be adhered to where its application will result in an unjust decision. [Citations.] The principal ground for making an exception to the doctrine of law of the case is an intervening or contemporaneous change in the law. [Citations.]” (Clemente v. State of California (1985) 40 Cal.3d 202, 212.) B.F. argues it would indeed be unjust, because we “misapplied existing principles of mootness” and because “an intervening decision” from the Ninth Circuit demonstrates that there are indeed collateral consequences to her if the jurisdictional findings are not erased.
As to B.F.’s first point, all she says is this: “The decision upon bureau’s motion to dismiss [B.F.]’s appeal was incorrectly decided” because “the case relied upon, namely In re Michelle M., supra, 8 Cal.App.4th 326 was distinguishable by the significant facts [B.F] filed the instant appeal.” We were not persuaded by this argument when it was advanced as a reason for rehearing. Nor was the Supreme Court when B.F. sought review of our dismissal.
As to B.F.’s second point, she bases it on a decision from the Ninth Circuit entitled Humphries v. County of Los Angeles, which was filed on November 5, 2008, slightly more than two weeks after our dismissal. It was originally published at 547 F.3d 1117, the citation that appears in B.F.’s briefs. She used Humphries extensively in her petition for review, but the Supreme Court was not persuaded to supersede our decision. But even more significant is that the version of Humphries cited by B.F. was withdrawn by the Ninth Circuit. A twice-amended version of the opinion is now at 554 F.3d 1170.
In any event, the amended version of Humphries is easily distinguishable. The Ninth Circuit found that due process was violated by California maintaining the names of parents on its Child Central Abuse Index, even after the underlying criminal charges or dependency allegations have been conclusively disproven, without providing a procedure by which an innocent parent could get his or her name removed from the Index. The differentiating details in Humphries are striking. Mr. and Ms. Humphries were charged criminally with child abuse, and their children placed in dependencies due to a false report of abuse by one of their children, who was characterized in the opinion as “rebellious.” When the accusation fell apart, the criminal court found them factually innocent of the charge, and “the juvenile court dismissed all counts of the dependency petition as ‘not true.’ ” (Humphries v. County of Los Angeles (9th Cir. 2009) 554 F.3d 1170, 1175.)
Here, there is nothing in the record to suggest that either parent was ever the subject of a criminal prosecution. Moreover, B.F. has no proof that her name has in fact been entered on the Index. This absence is particularly telling, because a person is required to be notified that his or her name has been forwarded for inclusion on the index. (See Pen. Code, § 11169, subd. (b).) The Humphries were so notified (Humphries v. County of Los Angeles, supra, at p. 1182), but B.F. does not represent that she received such a notification. Thus, there is no impeachment of our statement in the first opinion that B.F. and the father could advance “hypothetical possibilities” of adverse consequences if they did not secure a reversal.
In denying B.F.’s petition for review, the Supreme Court apparently did not view Humphries as precluding application of the doctrine of the law of the case. We are of the same view. Accordingly, we reaffirm our determination from the first appeal that the dismissal of the dependencies made moot any attempt to overturn the jurisdictional findings. Our reconsideration of the issue persuades us that no demonstrated injustice is presented, and therefore this appeal is within the law of the case.
For each and both of the above reasons, we will not undertake an examination of the validity of the jurisdictional findings.
Nevertheless, we cannot close without noting the zeal with which B.F. has been represented on both appeals by the same counsel, Ms. Judith Ganz, who has been stalwart in seeking vindication of her client’s desire to remove what see perceives as an unwarranted stain upon her reputation as a parent.
DISPOSITION
The order is affirmed.
We concur: Haerle, Acting P.J., Lambden, J.