Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. Nos. OJ0604835, OJ0604836
NEEDHAM, J.
Appellants R.R. and N.R. were declared dependents of the juvenile court and placed with their maternal grandmother in Russia after their mother disappeared and their father, respondent H.R., was charged with her murder. (Welf. & Inst. Code, § 300.) After learning that the minors might be returning to the United States to testify in father’s criminal case under the auspices of the Treaty with Russia on Mutual Legal Assistance in Criminal Matters (the Treaty), the juvenile court ordered that they submit to evaluations upon their return and that they remain in the United States until further order.
The minors appeal from these orders, arguing that the juvenile court did not have the power to order them to appear in the dependency action while they were traveling under the “safe passage” provisions of the Treaty. This challenge has been rendered moot by subsequent events. Although R.R. traveled to the United States to testify in father’s case, he returned to Russia without making an appearance in juvenile court. The completion of R.R.’s travels under the Treaty and the minors’ presence in Russia make it impossible for us to fashion an effective remedy. Moreover, the effective dates of the challenged orders have passed, and father’s subsequent conviction for murder makes it extremely unlikely the minors will return to this country under the provisions of the Treaty. We will dismiss the appeal.
I. Background
On September 12, 2006, the Alameda County Social Services Agency (the Agency) filed a petition alleging that R.R. and N.R. came within the jurisdiction of the juvenile court under Welfare and Institutions Code section 300 after their mother, disappeared. Father had threatened mother in the past, and in October 2006, he was arrested and charged with her murder.
The maternal grandmother is a physician who lives in St. Petersburg, Russia. She arrived from Russia a few days after the dependency petition was filed. The juvenile court approved her request to take the minors to Russia for a family visit during the Christmas holidays, with a return date of January 7, 2007. They did not return from Russia as ordered.
After an extended jurisdictional/dispositional hearing at which it determined the minors were doing well in Russia, the court sustained the dependency petition and ordered them placed with the maternal grandmother. It denied father’s request for in-person visitation, but allowed him to have contact through letters screened by a social worker. This court recently affirmed the dispositional order.
We have taken judicial notice of the record and opinion in In re Rory R., A117698 (June 12, 2008, nonpub. opn.).)
A six-month review hearing began on June 1, 2007 before a different judicial officer than the one who presided at the dispositional hearing. The court expressed concern about grandmother’s failure to return from Russia as initially requested by the Agency. It continued the hearing and ordered the parties to address various issues relating to placement, including whether the order allowing the minors to live in Russia was in their best interests. The Agency filed a supplemental report discussing the issues identified by the court, and noted, “In regards to the minors coming to the United States, [the Russian case worker] has informed the undersigned that plans are in place for [grandmother] and [R.R.] to visit in September 2007 as related to the criminal trial only.”
On August 10, 2007, the court concluded that return of the minors to father would be detrimental and that placement with grandmother continued to be appropriate. It additionally ordered, “The Agency is to return the child[ren] to Alameda County, California, on or before September 5, 2007. . . . At that time the child[ren] shall be assessed by the assigned Child Welfare Worker and an independent child psychologist to be appointed by the Court.” The Agency was to assess whether the minors should continue to be placed with the grandmother and whether they should continue to reside in Russia. On September 4, 2007, the Agency advised the court by letter that it could not secure the minors’ return because it could not obtain the appropriate travel documents (passports, exit and entrance visas) and because the court in Russia had issued an order preventing departure from that country.
The minors appealed the August 10 order to challenge the requirement that they return to Alameda County for evaluation. Father filed a cross-appeal to challenge the finding that placement with grandmother remained appropriate. This court affirmed the order continuing placement with grandmother and, concluding that the minors’ challenge was not yet ripe, affirmed without prejudice the order that the minors be returned to Alameda County.
We have taken judicial notice of the record and opinion in In re R.R., A118904 (filed March 21, 2008, nonpub. opn.).
At the next progress report hearing, held October 19, 2007, the court set a contested 12-month review hearing for January 11, 2008, and ordered that “[s]hould the minor(s) return to the United States prior to the 1/11/08 court date, the matter is to be placed on the Department 150 1:45 p.m. calendar the next day for a progress report.”
In November 2007, R.R. returned to Alameda County with his grandmother to testify in his father’s criminal trial as a witness for the prosecution. His presence had been secured under the Treaty with the cooperation of the United States Department of Justice. Under Article 11 of the Treaty, a witness appearing under its provisions “shall not be subject to service of process, or be detained or subjected to any restriction of personal liberty, by reason of any acts or convictions that preceded that person’s departure from the Requested Party.”
On November 13, 2007, father applied to the juvenile court for an ex parte order seeking to compel visitation and R.R.’s appearance in juvenile court. On the same date, the court ordered: “1. The Alameda County Social Services Agency shall insure that the above-mentioned minor(s) shall appear in the Alameda County Superior Court, Department 150 at 400 Broadway, Oakland, California, on November 16, 2007 at 1:45 p.m.,” and “3. That the children are stayed from returning to Russia until these proceedings have been completely litigated or upon further order of the court.” The court denied without prejudice the application for visitation.
Neither R.R. nor his grandmother appeared at the hearing on November 16, 2007, having already returned to Russia. Minors’ counsel and the Agency argued that under the safe passage provision of the Treaty, R.R. could not be ordered to appear. The deputy district attorney handling the criminal matter had filed a declaration stating that in his opinion, it would violate the Treaty to bring R.R. into juvenile court while he was in the country to testify in his father’s case, and that to do so would undermine the grandmother’s willingness to cooperate with the prosecution if additional appearances in the criminal action were required. Attached as an exhibit to the declaration was a letter from the United States Department of Justice stating that Article 11 of the Treaty required the safe passage of R.R. and his grandmother while he was a witness in the criminal case: “Any efforts to command the appearance of [R.R. or grandmother] in other proceedings are prohibited by the expressed provisions of the Treaty. Any order or subpoena should be regarded as null and void, and the Court should be directed to the provisions of the Treaty as the legal authority in this matter as a basis to vacate any order or to quash any subpoena issued against [R.R. or grandmother].”
The juvenile court ruled that the Treaty did not preclude it from ordering the appearance of a minor within its jurisdiction. It reasoned that the minors were in its custody, even though they were currently residing in Russia, and that R.R.’s appearance in dependency court was not a detention or restriction on his liberty based on an “act[] or conviction[]” preceding his departure from Russia to the United States. It set a hearing to determine whether minors’ counsel and the Agency should be held in contempt of its prior orders. Minors appealed the orders issued October 19, November 13 and November 16, 2007 to the extent those orders directed their appearance in Alameda County as part of the juvenile dependency proceedings.
Father has since been convicted of murder.
We take judicial notice of the proceedings in People v. Hans Thomas R., Alameda County Superior Court No. 154825.
II. Discussion
The minors argue that the juvenile court erred when it ordered their appearance in the dependency proceeding because Article 11 of the Treaty provides safe passage for any witness traveling to the United States under its provisions to give testimony. They also rely on Penal Code section 1334.4, which provides, “If a person comes into this State in obedience to a subpoena directing him to attend and testify in this State, he shall not, while in this State pursuant to the subpoena or order, be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this State under the subpoena.” We conclude the issue is moot.
“It is settled that ‘the duty of this court, as of every other 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.’ ” (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132.) When the court cannot fashion an effective remedy on appeal, the appeal is properly dismissed as moot. (See In re Pablo D. (1998) 67 Cal.App.4th 759, 761.)
The only issue presented in this appeal is whether the safe passage provision of the Treaty (or Penal Code section 1334.4) deprives a juvenile court of the power to detain a child over which it has jurisdiction. R.R. has already entered the United States under the provisions of the Treaty and has returned to Russia, thus obtaining the “safe passage” to which he claims he is entitled. N.R. apparently remains in Russia, and there is no suggestion in the record that she ever came to this country to testify in the criminal case or will do so in the future. The controversy before us has become an abstract proposition.
The minors argue the appeal is not moot because father’s case is not final and it is possible that one or both of them will return to the United States under the terms of the Treaty to give testimony. We have taken judicial notice of the fact that since the challenged orders were entered in the case, father has been convicted of murder. Even if the conviction could hypothetically be set aside at some point in the future, or be challenged in collateral proceedings that might require the minors’ testimony, the challenged orders requiring the minors’ appearance in juvenile court were date-specific. The first, issued October 19, 2007, required that a status hearing be held the following day if either child returned to the country before January 8, 2008, and the second, issued November 13, 2007, required that the minors appear in court on November 16, 2007. Should the minors reenter the country under the provisions of the Treaty, and should the juvenile court at that time issue another order requiring their presence in the juvenile proceedings, the minors can at that time challenge the new orders on whatever ground they believe appropriate.
Finally, the minors argue that we should exercise our discretion to reach an otherwise moot issue because the interpretation of the Treaty’s safe passage provision is one of public importance that tends to evade review. (Conservatorship of Wendland (2001) 26 Cal.4th 519, 524, fn. 1.) Though the legal issue regarding the Treaty is an interesting one, we do not believe it is likely to present itself with any regularity. It could only recur if a dependent child residing outside the country returned for the limited purpose of testifying in a criminal matter, and sought during that time to avoid making an appearance in the juvenile court having jurisdiction. In the event such a scenario again transpires, it can be addressed by the courts at that time. We do not think it would be prudent to offer an advisory opinion on an international agreement between two nations in a case where it will have no practical effect.
III. Disposition
The appeal is dismissed as moot.
We concur: SIMONS, Acting P. J., REARDON, J.
Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.