Opinion
B296263
05-26-2020
In re A.G., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. R.C., Defendant and Appellant.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the County Counsel, Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 18CCJP01414) APPEAL from an order of the Superior Court of Los Angeles County, Martha Matthews, Judge. Dismissed. Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the County Counsel, Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
The juvenile court assumed dependency jurisdiction over infant A.G. when she was hospitalized after suffering serious injuries likely caused by a babysitter's intentional abuse. The juvenile court initially permitted A.G.'s father (Father)—who had no contact with A.G. prior to her hospitalization—unmonitored visitation. Father was later arrested for driving under the influence of alcohol, however, and the juvenile court responded by limiting him to monitored visitation. Father noticed this appeal from that order, and while the appeal was pending, the juvenile court terminated its jurisdiction over A.G., gave A.G.'s mother (Mother) sole physical custody of A.G., and ordered supervised visits for Father. We consider whether there is any effective relief we can provide Father in light of the juvenile court's order terminating jurisdiction.
I. BACKGROUND
Mother and Father separated in August 2017, several months before A.G.'s birth. Father moved to another state and initially had no contact with A.G.
One morning when A.G. was about six months old, Mother left her in the care of a longtime and trusted friend (Babysitter) who had been babysitting A.G. six days a week for about a month. Hours later, Babysitter called 911 because A.G. was limp and unresponsive. Paramedics transported A.G. to the hospital and tests revealed she had a skull fracture, extensive bleeding in the brain, global neurologic injury from lack of oxygen to the brain, and retinal hemorrhages. A.G.'s treating physician expressed concern that she may have permanent neurological limitations. The hospital's child abuse expert diagnosed A.G.'s injuries as "abusive head trauma" and suggested it was likely the injuries were sustained close to the time of A.G.'s hospitalization, but could not rule out earlier abuse.
The Los Angeles County Department of Children and Family Services (the Department) interviewed Mother and Babysitter (and some others), and all denied knowing how A.G. had been injured. Father returned to California for an indefinite stay when he learned of A.G.'s injuries. Father visited A.G. daily during her month-long hospital stay and told the Department he wanted to be active in his daughter's life.
The Department filed a petition asking the juvenile court to assume dependency jurisdiction over A.G. and her half-sister. In addition to the injuries for which A.G. was hospitalized, the petition referred to earlier untreated injuries—including bruising to A.G.'s cheeks and thigh, plus swelling on her head. The petition alleged A.G. suffered severe physical abuse and the children were at risk of serious physical harm either inflicted non-accidentally by Mother or caused by Mother's failure to protect them or seek medical treatment. (Welf. & Inst. Code, § 300, subds. (a), (b), (e), (j).)
The allegations concerning A.G.'s half-sister, who has a different father, are not at issue in this appeal.
Undesignated statutory references that follow are to the Welfare and Institutions Code.
At the detention hearing, Father asked the juvenile court to release A.G. to him or, failing that, to order unmonitored visitation with A.G. The juvenile court commended Father for relocating and being present to assist with the care of A.G. but did not give him custody of A.G. because he had no prior contact with the child and because A.G. may have extreme health needs for the foreseeable future.
Months later, at the jurisdiction hearing, Mother and the Department agreed she would plead no contest to an amended petition that omitted allegations concerning non-accidental injury and severe physical abuse and referred only to the relatively minor injuries for which A.G. did not receive treatment. The juvenile court assumed jurisdiction over A.G. and ordered her removed from the parents' custody. The juvenile court ordered Father to have unmonitored visitation with A.G. and gave the Department "discretion to liberalize, up to and including[ ] release to [F]ather."
A few months later, the Department filed a section 388 petition asking the juvenile court to restrict Father to monitored visitation because he had been arrested for driving under the influence of alcohol. As detailed in a police report, Father struck several parked cars around 6:35 a.m. There was an empty beer bottle near the front passenger seat of the car he was driving, and his blood alcohol level was at least 0.196. He did not have a driver's license. In justifying its request to change Father's visitation, the Department emphasized A.G. was medically fragile and blind and the Department expressed concern that Father's driving under the influence was an indication that unmonitored visits would be too risky.
Counsel for A.G. joined the Department's recommendation.
At a hearing to consider the Department's request to restrict visitation, the juvenile court concluded the circumstances of Father's drunk driving—i.e., the time at which the accident occurred, the beer bottle in the car, and Father's high blood alcohol level—suggested Father had a serious problem and the incident was not an aberration. The juvenile court stated it appreciated Father's effort to move from another state to help take care of his daughter, but the court concluded the Department had convincingly argued visits should revert to being monitored (noting the monitoring requirement would not hinder visitation because A.G.'s caregiver had been willing to allow visits in her home). In addition to limiting Father to monitored visits, the juvenile court ordered "that Father should start testing, and if there are any missed or dirty tests, the Department should refer Father for a program." The court also gave the Department discretion to liberalize Father's visits back to unmonitored if he tested clean.
Father noticed an appeal from the juvenile court's order granting the Department's section 388 petition. Some eight months later, before Father submitted his opening brief, the juvenile court terminated dependency jurisdiction over A.G. The juvenile court also issued a family law "exit order" pursuant to section 362.4 granting joint legal custody to Mother and Father, sole physical custody to Mother, and monitored visits for a minimum of nine hours per week for Father. On a form listing reasons for the visitation order, the juvenile court checked boxes indicating Father's visits were to be monitored because he "ha[d] not completed" and "ha[d] not made substantial progress in" court-ordered programs, including an "[a]lcohol abuse treatment program with random testing."
Father's notice of appeal refers to "[a]ll orders and findings made on 2/1/19." In addition to granting the Department's section 388 petition on that date, the juvenile court held a six-month review hearing (§ 366.21, subd. (e)) and found "continued jurisdiction is necessary because conditions continue to exist that justified the Court in taking jurisdiction under [section 300]." Father does not challenge that ruling.
The judicially noticed post-hearing orders include no more details about when or why Father was referred to an alcohol treatment program.
II. DISCUSSION
"'An appeal becomes moot when, through no fault of the respondent, the occurrence of an event renders it impossible for the appellate court to grant the appellant effective relief. [Citations.]' [Citation.]" (In re Anna S. (2010) 180 Cal.App.4th 1489, 1498.) "As a general rule, an order terminating juvenile court jurisdiction renders an appeal from a previous order in the dependency proceedings moot." (In re C.C. (2009) 172 Cal.App.4th 1481, 1488.) "[D]ismissal for mootness in such circumstances is not automatic, [however,] but 'must be decided on a case-by-case basis.'" (Ibid.) "[T]he critical factor in considering whether a dependency appeal is moot is whether the appellate court can provide any effective relief if it finds reversible error." (In re N.S. (2016) 245 Cal.App.4th 53, 60.)
Here, the juvenile court's order granting the Department's section 388 petition was superseded by its exit order, which is not at issue in this appeal. Father contends we must nonetheless consider whether the juvenile court abused its discretion in granting the section 388 petition because he continues to be adversely impacted by this order. He suggests the order granting the section 388 petition "formed the legal and factual basis" of the exit order because "the court limited [F]ather to monitored visitation[ ] solely due to his failure to complete the alcohol treatment program [ ] it mandated after granting the Department's section 388 petition."
There are two problems with Father's argument. First, the juvenile court did not require Father to complete an alcohol treatment program. Rather, the juvenile court ordered "that Father should start testing, and if there are any missed or dirty tests, the Department should refer Father for a program" (emphasis ours). But second, even taking Father's argument on its own terms, it still fails. Father does not contend the court's order for alcohol testing (and for an alcohol treatment program referral if tests were positive) lacked a proper factual or legal predicate. Rather, his briefing on appeal challenges only the order for monitored, rather than unmonitored, visitation. If we held (though we do not) that the trial court should have allowed unmonitored visits, there would still be the evidence of Father's continued troubles with alcohol that served as the legal and factual basis of the juvenile court's later exit order. We can therefore provide Father no effective relief in this appeal even if the visitation order were reversed.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J. We concur:
RUBIN, P. J.
KIM, J.