Opinion
NOT TO BE PUBLISHED.
APPEAL from an order of the Superior Court of Merced County. Super. Ct. No. JP000136 Harry L. Jacobs, Juvenile Court Commissioner.
Carin L. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.
James N. Fincher, County Counsel, and James B. Tarhalla, Senior Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Wiseman, A.P.J., Kane, J., and Poochigian, J.
INTRODUCTION
E.W., the mother of C.W., A.W., and E.W., appeals from the juvenile court’s judgment adjudicating her three children dependents of the court pursuant to Welfare and Institutions Code section 300 and placing them in care outside of the home. Appellant challenges the sufficiency of the evidence to support the juvenile court’s decision. Respondent argues the case is now moot. We agree with respondent and will dismiss the appeal.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Respondent has filed a motion requesting that we take judicial notice of the juvenile court’s order of June 14, 2007, dismissing the action and returning the children to appellant. Respondent’s motion is hereby granted pursuant to California Rules of Court, rule 8.155(a) and Evidence Code sections 452, subdivision (d) and 459.
FACTS AND PROCEEDINGS
On November 17, 2009, a juvenile dependency petition was filed alleging that appellant failed or was unable to adequately protect her children and, due to alcoholism, was unable to provide regular care for her children. The petition set forth several incidents in which appellant endangered her children by driving while intoxicated or was unable to care and/or protect her children while intoxicated. The petition also alleged that appellant had been in alcohol rehabilitation programs twice in the past, and, although appellant does not drink every day, when she does drink she drinks until she is unconscious. In September 2009, a social worker offered appellant alcohol treatment services but she refused them. At the conclusion of a contested detention hearing on November 19, 2009, the children were detained.
The social worker’s report prepared for the joint jurisdiction/disposition hearing noted that appellant was aware that her children were in foster care because they were not safe with her. Appellant admitted that she drank wine to deal with her depression. Appellant remained sober during her pregnancies. Appellant denied drinking until she became unconscious.
Appellant had twice been in alcohol treatment prior to the filing of the instant petition. Appellant first entered a treatment program in December 2006 at her family’s request. Although appellant completed a 30-day program, she later relapsed because she failed to follow up with an aftercare program. Appellant voluntarily entered a second treatment program in May 2009 and completed a 14-day program but again relapsed because her aftercare program was not structured enough.
Appellant acknowledged that her use of alcohol scared and saddened her children. Appellant had been seeing a therapist for the past year to deal with the death of her husband, her anxiety, and her sobriety. Appellant was in daily attendance with Alcoholics Anonymous (AA) and had a sponsor. Appellant attended a grief support group through her church and increased sessions with her therapist to twice a week. Appellant also attends three group sessions through an out-patient treatment program and was taking Antabuse.
Appellant’s brother-in-law reported that appellant did drink alcohol during two of her pregnancies and was hospitalized for alcohol poisoning during one pregnancy. The brother-in-law reported that appellant hid alcohol in light fixtures, under the crib, and around the house.
Appellant admitted that she drank and became intoxicated to the point of passing out when the children were home alone with her. Appellant had a safety plan that her eight-year-old child would call family members when she began to drink and he got scared. The children were frightened by appellant’s drinking and did not want to call the police out of fear their mother would be arrested. Appellant admitted entering treatment programs twice before and relapsing. Appellant continued to drink during the course of her individual counseling. There were two prior child welfare referrals due to appellant’s alcohol problem. Appellant was referred to voluntary family maintenance services in September 2009 to address her drinking issues, but appellant refused services at that time. Appellant also minimized the extent of her alcohol abuse even though she is enrolled and engaged in services.
Appellant took Antabuse for two weeks so there would be no question about her consumption of alcohol. Appellant denied her alcohol use was as severe as reported by others and that her abuse of alcohol was traumatic for her children. Appellant interacted well in her visits with her children. Appellant had the children wash their hands, brought them food, played with them, and kissed them at the beginning and end of each visit. Appellant wanted her children returned to her because she wants to remain sober, continue her therapy, and knows what it takes to be a good mother.
The social worker concluded that although appellant was taking advantage of counseling and other services, she had no sustained period of maintained sobriety. Because past treatment had failed, the social worker recommended that appellant receive further reunification services to give her an extended time of sobriety before returning the children to her care.
At the joint jurisdiction/disposition hearing on February 11, 2010, the court also considered a section 388 petition filed by appellant. Appellant’s therapist, Shaula Brent, a licensed clinical social worker, explained that appellant’s treatment focuses on grief and loss issues. When the children were detained, they moved from one session a week to two sessions per week. Appellant’s treatment plan includes therapy, AA, an aftercare program, parenting classes, and attending a grief group.
During the 18 months Brent administered treatment to appellant, the appellant was sober for eight months. Appellant had four relapses, but with other services added to appellant’s plan, the relapse plan was adequate. Brent explained that relapse is part of treatment for addiction. Brent acknowledged that sobriety cannot be guaranteed forever. Since the children were detained, however, appellant’s approach to sobriety was serious.
Appellant now takes the possible danger of drinking to her children more seriously. Appellant is now relying on the services of professionals and AA members. Appellant understands protecting her children is paramount. Brent opined that appellant was in a good position to maintain her sobriety.
The social worker assigned to appellant’s case, Esmerelda Reese, testified that appellant’s children missed their mother, wanted her to get better, and they wanted to go home. Appellant took all of her rehabilitative efforts upon herself, though Reese did refer appellant to parenting classes. Reese believed it would be between 6 and 12 months before the children would be returned to appellant.
Appellant testified, explaining all of the steps she has taken to become sober. Appellant attends grief counseling and a parenting class. Appellant denied drinking during her pregnancies but admitted she drank after her children were born. Appellant’s brother-in-law testified that in the last month he had seen a big change in appellant. Appellant cares about her children, calls about them every night, and wants to be there for them. The brother-in-law explained that appellant was taking this situation seriously and that she wants her children.
The court found the allegations in the petition true. The court believed appellant had made heroic efforts to overcome what the court described as an insidious disease. The court applauded appellant’s efforts and stated it believed appellant sincerely wanted her children returned. The court found, however, that appellant’s progress was very recent. The court explained that appellant was building a beautiful structure for her future life but the scaffolding, braces, and cement forms were still attached. The court noted that given appellant’s past history, she needed more time before the children were returned to her. The court denied the section 388 petition without prejudice to counsel refiling it in the future, declared the minors dependents of the court, and scheduled a six-month review hearing. The court also ordered enhanced visitation.
DISCUSSION
Appellant contends the agency did not meet its burden of proof at the disposition hearing of clear and convincing evidence and that the children should have been returned to her. Respondent argues that because the children were recently returned to appellant and the petition was dismissed, the appellant’s issue is moot. Appellant responds that the juvenile court’s adjudication of her case acts as a prior offense that could limit her right to reunification services in a potential future dependency proceeding.
Generally, where the juvenile court terminates its jurisdiction over minors, there is no ongoing dependency proceeding and the appeal becomes moot. (In re Michelle M. (1992) 8 Cal.App.4th 326, 328-329.) An issue is not moot, however, if the purported error infects the outcome of subsequent proceedings. (In re C.C. (2009) 172 Cal.App.4th 1481, 1488; In re Dylan T. (1998) 65 Cal.App.4th 765, 769-770.).
We have taken judicial notice of the order of the juvenile court terminating its jurisdiction and returning the children to appellant’s custody. Appellant argues in her reply brief that there are potential future consequences to her from the juvenile court’s earlier order at the jurisdiction/disposition hearing should there be a future dependency proceeding involving her children. Appellant cites to In re Joel H. (1993) 19 Cal.App.4th 1185 (Joel H.) in support of her right to have this court consider the merits of her argument. The facts of the Joel H. decision are inapposite to the instant action because there the de facto parents were appealing an order by the juvenile court terminating its jurisdiction and placing the child back into parental custody. (Id. at pp. 1193-1196.) The de facto parents had standing to appeal and the juvenile court’s order allegedly harmed their relationship as de facto parents. Unlike the de facto parents in Joel H., appellant was not harmed by the juvenile court’s termination of jurisdiction.
In her reply brief, appellant further argues that the prior services offered her could act as a “prior” for the purpose of offering future services in a potential future petition. This would lead to reduced services or no services according to appellant. As authority for this argument, appellant cites to sections 361.5, subdivision (b)(3) and 361.5, subdivision (b)(13). Under section 361.5, subdivision (b), reunification services need not be provided to a parent if the court finds by clear and convincing evidence that one or more of 15 circumstances apply to a parent. Section 361.5, subdivision (b)(3) concerns prior occasions in which a child or a sibling have been adjudicated dependents as the result of physical or sexual abuse. No such allegation or finding was made here.
Appellant’s reply brief actually refers to sections 361.5, subdivision (a)(3) and 361.5, subdivision (a)(13). The former statute sets forth the length of reunification services. The latter statute does not exist. We will treat these citations as clerical mistakes and instead refer to the statutes appellant meant to refer to: sections 361.5, subdivisions (b)(3) and (b)(13).
Section 361.5, subdivision (b)(13) involves failure in a court supervised program of drug or alcohol treatment. Under the express provisions of this subdivision of section 361.5, a juvenile court in a potential dependency proceeding can only deny appellant services if she resisted court ordered treatment or failed a drug or alcohol treatment program during a three-year period prior to the filing of the petition, or, if she failed or refused to comply with such a treatment program as described in a case plan pursuant to section 358.1.
Subdivision (b)(13) of section 361.5 provides:
Appellant struggled and relapsed on two prior occasions, but in both instances appellant was voluntarily in treatment. She was not under court-ordered treatment or treatment pursuant to a reunification plan until after the instant petition was filed. Appellant’s two prior relapses do not trigger the provisions of section 361.5, subdivision (b)(13). Furthermore, appellant successfully complied with and completed her court-ordered plan under this petition leading to the termination of the court’s jurisdiction and the return of her children. Appellant has not yet suffered a prior circumstance that would prevent her from receiving reunification services in a hypothetical future dependency proceeding.
We therefore agree with respondent that the juvenile court’s termination of jurisdiction renders this appeal moot.
DISPOSITION
Appellant’s appeal is dismissed as moot.
“That the parent or guardian of the child has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court's attention, or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by Section 358.1 on at least two prior occasions, even though the programs identified were available and accessible.”