Opinion
D072809
05-03-2018
In re L.H., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. R.D., Defendant and Appellant.
Clare M. Lemon, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. EJ4084) APPEAL from an order of the Superior Court of San Diego County, Gary M. Bubis, Judge. Reversed and remanded with directions. Clare M. Lemon, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
I.
INTRODUCTION
After granting K.V. and D.V.'s (the V.s) application to become de facto parents of L.H., the trial court, sua sponte, ordered that the V.s receive confidential reports pertaining to L.H.'s dependency. L.H.'s father, R.D., objected to the release of the reports, but the trial court overruled R.D.'s objection. Two days later, R.D. filed a motion for reconsideration of the trial court's sua sponte ruling ordering the disclosure of confidential reports and sought a stay of the court's order. R.D. attached a copy of this court's decision in B.F., supra, 190 Cal.App.4th 811 to his motion. In B.F., this court stated, "De facto parents do not have an automatic right to receive the Agency's reports and other documents filed with the court." (Id. at p. 817.) Instead, we explained, "[De facto parents] have standing to petition the juvenile court for the right to inspect or copy the case file." (Id. at p. 818.)
" ' "De facto parent" means a person who has been found by the court to have assumed, on a day-to-day basis, the role of parent, fulfilling both the child's physical and psychological needs for care and affection, and who has assumed that role for a substantial period.' " (In re B.F. (2010) 190 Cal.App.4th 811, 817 (B.F.).)
At a hearing two weeks after the trial court's release of the reports, the trial court restored legal custody of L.H. to R.D. and L.H.'s mother, continued the dependency, and denied R.D.'s motion for reconsideration. In denying the motion, the trial court stated, "It's a wonderful issue that you can take to the appellate court." The court added that it believed that it's ruling ordering disclosure of confidential reports to the de facto parents "was appropriate," explaining, "I firmly believe and I would find that this court has [an] independent right to sua sponte allow de facto parents and other parties to get these [reports]." The trial court added that, going forward, the de facto parents would no longer be "automatically entitled to the reports." The court did not expressly rule on R.D.'s motion to stay its ruling.
On appeal, R.D. maintains that the trial court erred in releasing the confidential reports to the V.s. The San Diego County Health and Human Services Agency (the Agency) acknowledges that "the juvenile court's statement that the de facto parents would get 'copies of reports' moving forward was erroneous because de facto parents do not have an entitlement to automatically receive reports in the child's case." However, the Agency contends that the error has been rendered moot because the reports have already been released and this court cannot grant R.D. any effective relief. The Agency further argues that R.D. was not prejudiced by the release of the reports, given that the trial court stated that it would no longer automatically release future reports to the V.s and that L.H has been returned to R.D.'s custody.
We agree with the parties that the trial court erred in sua sponte ordering the release of confidential reports to the de facto parents. (See B.F., supra, 190 Cal.App.4th at p. 817.) However, we reject the Agency's contentions that R.D.'s claim is moot and that the trial court's error was harmless. With respect to mootness, we may grant effective relief by reversing the court's order and directing the trial court to fashion a procedure by which the V.s may return any improperly released reports. Moreover, even assuming that R.D.'s claim were moot, in light of the trial court's remarks expressly stating its belief as to the correctness of its ruling, we would exercise our inherent discretion to address R.D.'s claim on the merits to ensure that the trial court does not make a similar error in the future. (See In re N.S. (2016) 245 Cal.App.4th 53, 59 ["a court may exercise its inherent discretion to resolve an issue [that has become moot] . . . where 'there is a likelihood of recurrence of the controversy between the same parties or others' "].) We reject the Agency's prejudice argument since it fails to recognize that the harm suffered by R.D. is the release of confidential information occasioned by the trial court's order.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2016, the Agency filed a dependency petition and removed L.H. from her parents' care. On the same day that the Agency filed the dependency petition, the Agency placed L.H. in the foster home of the V.s.
L.H. was approximately 11 months old at the time of the removal.
In December 2016, the trial court declared L.H. a dependent of the court. L.H. continued to reside with the V.s and the trial court ordered that reunification services be provided for both R.D. and L.H.'s mother.
Approximately four months later, the V.s filed a request to be named L.H.'s de facto parents. On August 8, 2017, the trial court held a contested special hearing on the V.s' de facto parent request. At the conclusion of the hearing, the court granted the V.s de facto parent status. After granting the V.s de facto parent status, the court stated:
"From this point on you'll get copies of reports. They are confidential. You can only share them with yourself and the social workers and the attorneys, and we'll go from there."
R.D. objected to the trial court's sua sponte order releasing confidential reports to the de facto parents. The trial court responded:
"They're only getting reports because they are able to do that, because they're now parties. They're going to get the reports from this point forward, and they have been admonished what they can do with the reports. If there was a violation of that, I'm going to yell at you. So don't do that."
Two days after the hearing, R.D. filed a motion for reconsideration / motion for stay. In his motion, R.D. requested that the court vacate its order for release of "reports and other documents" to the de facto parents. In his motion, R.D. argued that in B.F., this court held that de facto parents do not have an automatic right to receive such reports, and that the only manner by which such reports may be disclosed to such persons would be through proceedings conducted on a petition filed pursuant to Welfare and Institutions Code section 827. R.D. argued that disclosure of the confidential reports to the V.s was improper since the V.s had not filed a petition seeking the confidential reports, R.D. had not been afforded the opportunity to defend against their disclosure, and the court had not weighed the legally relevant factors in determining whether to order such disclosure. R.D. also requested that the court stay its order releasing the documents pending a resolution of the issue. R.D. attached a copy of B.F. to the motion.
Unless otherwise specified all subsequent statutory references are to the Welfare and Institutions Code.
Section 827 provides that juvenile case files are confidential and may be inspected only by certain statutorily specified classes of persons, including those persons "designated by court order of the judge of the juvenile court upon filing a petition." (§ 827, subd. (a)(1)(Q).)
The Agency filed an addendum report addressing the parents' progress in reunification services, among other issues. With respect to R.D., the report discussed R.D.'s substance abuse testing history, his employment, and the results of a criminal background check. The report also attached a "completed home study," pertaining to R.D.'s living conditions, drafted by a Mexican governmental agency, among other documents.
R.D. resides in Tijuana, Mexico.
The trial court conducted a contested six-month review hearing on August 22, 2017. The V.s were present for the hearing. Near the conclusion of the hearing, the trial court restored custody of L.H. to R.D. and L.H.'s mother.
At the end of the hearing, R.D. reminded the court of his pending motion for reconsideration / stay. The court denied the motion, stating:
"I've read and considered the motion for reconsideration. It's a wonderful issue that you can take to the appellate court. I believe my ruling was appropriate. They're not entitled to any [psychological evaluations]. I will indicate that at this point forward they won't be automatically entitled to the reports. Whatever they have, they have. But subsequent reports they would not be entitled without release by the court.
"I firmly believe and I would find that this court has [an] independent right to sua sponte allow de facto parents and other parties to get these cases [sic]. I think there is a case called Matthew B.[] I don't remember.
"They are parties. They're entitled to certain information. They're not entitled to [psychological evaluations]. They're not entitled to specific therapy type reports. They're entitled to general information. I'm confident in my ruling. You have the right to appeal from that decision. But I'm going to deny your request for reconsideration. I believe that my orders were appropriate."
R.D. timely appealed from the August 8 and August 22 orders.
As discussed in part III.A, post, it appears the court intended to refer to In re Matthew P. (1999) 71 Cal.App.4th 841 (Matthew P.).
As noted in part I, ante, the trial court did not expressly rule on R.D.'s request to stay its ruling.
III.
DISCUSSION
A. The trial court erred in sua sponte ordering the release of confidential reports to the V.s
R.D. claims that the trial court erred in sua sponte ordering the release of confidential reports pertaining to L.H.'s dependency to the V.s. R.D. contends that the only proper mechanism for releasing such confidential reports to de facto parents is upon a petition filed pursuant to section 827. The Agency properly concedes the error. The Agency states in relevant part:
"As set forth in the B.F. decision the appropriate procedure for the de facto parent to request access to the juvenile court file is via section 827. (In re B.F., supra, 190 Cal.App.4th 811, 818.) Here, the correct procedure was not followed by the juvenile court when it issued the August 8, 2017 order for the release of reports to the de facto parents from that point forward."
We agree with the parties that the trial court erred in sua sponte ordering the release of the confidential reports to the V.s. As the B.F. court explained:
" 'It is the express intent of the Legislature "that juvenile court records, in general, should be confidential." ' [Citations.] Thus, section 827 restricts access to the case file in a juvenile proceeding. That section lists persons entitled to inspect the file without a court order, and a smaller number of persons who are also entitled to receive copies of the file without a court order. [Citations.] De facto parents are not listed [citation], but they have standing to petition the juvenile court for the right to inspect or copy the case file [citations]." (B.F., supra, 190 Cal.App.4th at p. 818, italics added.)
The B.F. court explained the heavy burden a party has prevailing on a section 827 petition:
"A section 827 petition must identify '[t]he specific records sought' and 'describe in detail the reasons the records are being sought and their relevancy to the proceeding or purpose for which petitioner wishes to inspect or obtain the records.' [Citation.] To prevail, the petitioner must show good cause. [Citations.] The petitioner has the burden of proving, by a preponderance of the evidence, 'that the records requested are necessary and have substantial relevance to the legitimate need of the petitioner.' [Citation.]
"All interested parties must be given notice and an opportunity to object to the section 827 petition. [Citation.] '[I]f the court determines that there may be information or documents in the records sought to which the petitioner may be entitled, the . . . court . . . must conduct an in camera review of the juvenile case file and any objections and assume that all legal claims of privilege are asserted.' [Citation.] 'In determining whether to authorize inspection or release of juvenile case files, in whole or in part, the court must balance the interests of the child and other parties to the juvenile court proceedings, the interests of the petitioner, and the interests of the public.' [Citation.] To grant the petition, the court must determine 'that the need for discovery outweighs the policy considerations favoring confidentiality of juvenile case files.' [Citation.] 'The court may permit disclosure of juvenile case files only insofar as is necessary.' [Citation]." (B.F., supra, 190 Cal.App.4th at p. 818.)
In light of B.F., it is clear that the trial court erred in sua sponte ordering the release of the confidential case records to the V.s. B. R.D.'s claim is not moot and even if it were, we would exercise our discretion to address it on the merits because it is likely to recur
The Agency acknowledges that the trial court's "apparent reliance on [Matthew P.] was misplaced." Again, we agree. While the Matthew P. court stated in the "background" section of the opinion that the "K.'s de facto status entitled them to receive [the social worker's] report" (Matthew P., supra, 71 Cal.App.4th at p. 847), the court provided no authority for this statement, which is both dicta and, for the reasons stated in B.F., incorrect.
While acknowledging that the trial court erred in sua sponte ordering the disclosure of the case reports, the Agency claims that R.D.'s claim is moot and that we should dismiss R.D.'s appeal.
" ' "[W]hen, 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 [the appellate] court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever," ' the appeal is moot." (Californians for an Open Primary v. McPherson (2006) 38 Cal.4th 735, 783 (Californians for an Open Primary).) However, "if an appeal is technically moot, but 'there may be a recurrence of the same controversy between the parties and the parties have fully litigated the issues,' a reviewing court may in its discretion reach the merits of the appeal." (City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 480.)
The Californians for an Open Primary court explained that, "[t]he same is true in the trial court." (Californians for an Open Primary, supra, 38 Cal.4th at p. 783, fn. 1.) " ' "[A]lthough a case may originally present an existing controversy, if before decision it has, through act of the parties or other cause, occurring after the commencement of the action, lost that essential character, it becomes a moot case or question which will not be considered by the court." ' " (Ibid.)
The Agency argues that this court "cannot grant any effective relief because the report(s) have already been released and reviewed by the de facto parents as part of their participation in the child's review hearing." The Agency further argues that the issue is unlikely to recur since "the juvenile court expressly stated its intent to ensure that future reports would not be 'automatically' released to the V.s." We disagree with both contentions.
While this court could have granted more effective relief if the trial court had stayed its order, as R.D. requested, we may still direct the trial court to order that the V.s return the reports, and thereby provide some form of relief. (See In re Gina S. (2005) 133 Cal.App.4th 1074, 1085 ["we conclude that the juvenile court's order that appellant return documents and not disseminate information from the copies she received was within the court's inherent power to control the dissemination of the juvenile case files and keep the files confidential"].) Moreover, given that the trial court stated that it "firmly believe[d]" that the court had an "independent right to sua sponte allow de facto parents" to receive such reports, there is a likelihood of recurrence of the same controversy warranting this court's review of this issue, irrespective of any potential mootness. C. The trial court's error was not harmless
R.D. also could have sought a writ in this court to stay such release. (Cf. County of Los Angeles v. Superior Court (1990) 224 Cal.App.3d 1446, 1451 ["discovery orders requiring the revelation of allegedly privileged information may be a proper subject of review by prerogative writ"].)
In his reply brief, R.D. argues that "the sensitive information remains in the custody of the de facto parents and they can refer to it at any time if they wish to know intimate details about [R.D.'s] life." R.D. contends that he "remains prejudiced by the release of the reports as long as they remain in the de facto parents' possession."
We observe that the trial court instructed the V.s to maintain the confidentiality of the reports that they were to receive.
The Agency contends that any error that the trial court committed in ordering the release of confidential reports to the de facto parents is harmless because the trial court indicated that it would no longer "automatically" release any future reports to the V.s, and the trial court restored legal custody of L.H. to R.D. Neither argument has any merit.
First, the trial court's August 22 statement that it would no longer "automatically" release confidential reports to the Vs. does not establish that R.D. was not prejudiced by the release of reports the court had already authorized by way of its August 8 order. Second, the fact that the trial court restored legal custody of L.H. to R.D. does not render harmless the unauthorized disclosure to the V.s of confidential reports pertaining to R.D. As R.D. argues, the trial court's order improperly authorized the release of confidential records that "contained extremely sensitive and personal information about [R.D.], such as his history of interpersonal relationships, his familial relationships, the specifics of his daily routine, his hygiene practices, his diet, the location of his home, a detailed description of the interior of his home, and his income and expenditures." The Agency's prejudice argument fails to address, in any fashion, the harm that R.D. suffered by the improper release of such information.
In addition, as discussed in part II.B, ante, the court did not indicate that it intended to release reports in the future only pursuant to proceedings conducted under section 827, as is required. --------
Accordingly, we reject the People's argument that the trial court's error in ordering the release of the confidential reports was harmless.
IV.
DISPOSITION
The trial court's August 8, 2017 order releasing the juvenile case file reports to the V.s is reversed. The trial court is directed to fashion a procedure by which the V.s shall return any improperly released reports.
AARON, J. WE CONCUR: NARES, Acting P. J. O'ROURKE, J.