Opinion
F073759
02-02-2017
In re JEREMIAH G., a Person Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. A.G., et al., Defendants and Respondents. JEREMIAH G., Appellant.
M. Elizabeth Hardy, under appointment by the Court of Appeal, for Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent. No appearance by Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CEJ300226-1)
OPINION
APPEAL from orders of the Superior Court of Fresno County. Brian M. Arax, Judge. M. Elizabeth Hardy, under appointment by the Court of Appeal, for Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent. No appearance by Defendants and Respondents.
-ooOoo-
Juvenile dependent Jeremiah G. appeals from the juvenile court's order granting a continuance of the six-month review hearing and providing further reunification services to his mother, A.G. The Fresno County Department of Social Services (Department) filed a motion to dismiss the appeal as moot because, after this appeal was filed, the juvenile court conducted six- and 12-month review hearings and ordered continued reunification services for mother. We grant the motion and dismiss the appeal as moot.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2015, the Department filed a dependency petition on behalf of two-year-old Jeremiah, which alleged he came within the provisions of Welfare and Institutions Code section 300, subdivision (b), based on mother's failure to provide him with medical care and her substance abuse. Mother, who at the time was living with Jeremiah at his maternal grandmother's home, identified Alfredo G. as Jeremiah's father; father was incarcerated and did not have a relationship with Jeremiah. Jeremiah was removed from mother's custody and placed with his maternal uncle.
Undesignated statutory references are to the Welfare and Institutions Code.
A combined jurisdiction and disposition hearing was held in October 2015. Mother submitted on an amended petition and the Department's recommendation that she be provided reunification services. The juvenile court found the amended petition's allegations true, adjudged Jeremiah a dependent, granted services for mother, and denied services for father as he was an alleged father. The juvenile court ordered an assessment for Jeremiah by the Central Valley Regional Center (CVRC), which had been requested due to his lack of verbal skills.
In a report prepared for the six-month review hearing, the Department recommended mother continue to receive reunification services. CVRC had diagnosed Jeremiah with Autism Spectrum Disorder and possible intellectual disability, and he was receiving CVRC services. Jeremiah remained placed with his uncle, but his uncle was not committed to adopting him or obtaining guardianship.
On April 5, 2016, at the request of Jeremiah's counsel, the juvenile court set a contested six-month review hearing for May 3 and a settlement conference for April 19. On April 19, the Department filed a motion requesting a continuance of the six-month review hearing pursuant to section 352 to allow mother time to enter an inpatient treatment program. The trial court, however, set the matter for trial.
Subsequent references to dates are to the year 2016, unless otherwise stated.
Section 352, subdivision (a), provides in pertinent part: "Upon request of counsel for the parent, guardian, minor or petitioner, the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor. . . . [¶] Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance."
At the outset of the May 3 hearing, County counsel stated the Department wanted to continue the hearing under section 352 so mother's services could be extended and intended to have the social worker testify about mother's current circumstances. The social worker testified about the Department's April 19 request for continuance and mother's progress on services, which included mother's entry into an inpatient treatment program. The social worker continued to recommend mother receive additional services. County counsel asked the court to find there was a substantial probability of reunifying at the end of 12 months and continue mother's reunification services. Jeremiah's attorney asserted the court should terminate reunification services because mother failed to participate regularly and make substantive progress in court-ordered programs. Mother's attorney asked the court to follow the Department's recommendation and either (1) extend services and set a 12-month review hearing, or (2) continue the six-month review hearing for two and a half to three months to see how mother did in her inpatient program.
The juvenile court decided to continue the hearing for 60 days on section 352 grounds to see how mother was doing in her program; if she did well, she could continue to receive another 30 days of services, but if not, the court would rule on the evidence before it. The juvenile court believed there was good cause to continue the hearing and it was in Jeremiah's best interest to do so. The juvenile court set the continued six-month review hearing for July 5.
DISCUSSION
On appeal, Jeremiah contends the juvenile court both abused its discretion and acted in excess of jurisdiction when it continued the hearing and permitted mother to receive additional services. He asserts the juvenile court's decision violated his right to permanency, as well as the intent of the dependency statutes. He claims the juvenile court's only option at the May 3 hearing was to terminate mother's services and set a section 366.26 permanency planning hearing. He urges us to reverse the orders and instruct the juvenile court to set a section 366.26 hearing.
On September 28, the Department filed a motion to dismiss the appeal as moot. County counsel declared that after receiving Jeremiah's opening brief, he sought to determine the status of the case. He found that the juvenile court had made six- and 12-month findings and orders pursuant to sections 366.21, subdivisions (e) and (f), and reunification services had been ordered for mother to February 14, 2017, when an 18-month review hearing was set pursuant to section 366.22.
Appended to the motion are copies of minute orders of the following proceedings: (1) the July 5 six-month review hearing, at which the juvenile court continued mother's reunification services; and (2) the August 30 12-month review hearing, at which the juvenile court continued mother's reunification services and set an 18-month review hearing for February 14, 2017. In his opposition to the motion, Jeremiah does not object to our considering these minute orders in ruling on the Department's motion. Accordingly, we grant the Department's implied motion for judicial notice of these minute orders. (Evid. Code, §§ 459, subd. (a), 452, subd. (d)(1); see In re Raymond G. (1991) 230 Cal.App.3d 964, 967, fn. 2.) No appeal has been taken from these orders, which are now final.
An appellate court's jurisdiction extends only to actual controversies for which the court can grant effective relief. (In re Christina A. (2001) 91 Cal.App.4th 1153, 1158; In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316.) If subsequent acts or events have rendered the questions raised in the appeal moot, then the action no longer presents a justiciable controversy. An exception may be made when the question raised is an issue of continuing public importance, which is capable of repetition, yet evading review. (In re Christina A., at p. 1158.) This can sometimes occur in dependency cases where an appellate court may be unable to obtain the record and briefing by the parties in time to decide an important issue before it becomes moot in a particular case. (Ibid.) In dependency cases, we decide if the appeal is moot on a case-by-case basis. (In re Dani R. (2001) 89 Cal.App.4th 402, 404.)
Here, Jeremiah's complaint is that the juvenile court improperly granted a continuance of the six-month review hearing under section 352, which resulted in mother's continued receipt of reunification services. Mother, however, has already received reunification services and presumably benefitted from them, as the juvenile court has extended her services to 18 months.
In In re Pablo D. (1998) 67 Cal.App.4th 759, 760-761 (Pablo D.), a minor appealed from an order made at the 12-month review hearing that extended his parents' reunification services to 18 months, arguing there was insufficient evidence to support the juvenile court's finding it was likely he would be returned to his parents and instead the evidence compelled termination of reunification services. The appellate court held the appeal was moot because the services had been rendered and were ongoing, as the 18- month review hearing had not yet been held. The court explained: "Obviously, we cannot rescind services that have already been received by the parents. Because we are unable to fashion an effective remedy, the appeal is moot." (Id. at p. 761.)
Here, there is no actual controversy about whether mother could receive reunification services, as she has already received them. Nevertheless, Jeremiah argues the appeal is not moot because he is seeking termination of reunification services and the setting of a permanent placement hearing pursuant to section 366.26. This argument, however, is essentially the same as that set forth in Pablo D., and we face the same issue as in that case. Jeremiah seeks a ruling that the juvenile court erred in granting mother additional reunification services by continuing the six-month review hearing. Services have been continued to the 18-month review hearing, which is set for February 14, 2017, less than a month from now. As the court in Pablo D. noted, an appellate court cannot rescind services a parent has already received.
Jeremiah claims that Pablo D. is not controlling here because that case did not involve the claim he makes here - that the juvenile court acted in excess of jurisdiction, thereby infecting future hearings. While an appeal is not moot if the alleged defect undermines the juvenile court's initial jurisdictional finding (In re Joshua C. (1994) 24 Cal.App.4th 1544, 1548), Jeremiah does not contest the juvenile court's jurisdictional finding.
In addition, "[a]n issue is not moot if the purported error infects the outcome of subsequent proceedings." (In re Dylan T. (1998) 65 Cal.App.4th 765, 769.) Jeremiah asserts the continuance of the six-month review hearing did so here because absent the continuance, no further review hearings would have been held. Reunification services, however, have already been provided to mother and an 18-month review hearing will be held soon. At that hearing, either mother's services will be terminated and a section 366.26 hearing set, or Jeremiah will be returned to mother. (§ 366.22, subd. (a); Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 306.) We simply cannot grant the relief Jeremiah seeks, namely to return the case to the state of the evidence on May 3, 2016. We note that had Jeremiah's trial counsel sought traditional writ relief immediately after the May 3 hearing, this court could have addressed the contentions in a timely and effective manner. (Pablo D., supra, 67 Cal.App.4th at p. 761.)
Jeremiah urges us to consider the appeal on the merits because the case presents an issue of broad interest which is likely to recur in other dependency cases before the same judge. (Liberty Mut. Ins. Co. v. Fales (1973) 8 Cal.3d 712, 715-716 ["If an action involves a matter of continuing public interest and the issue is likely to recur, a court may exercise an inherent discretion to resolve that issue, even though an event occurring during its pendency would normally render the matter moot."].) In our view, the issue Jeremiah raises is not one of broad public interest or likely to recur; instead, it is specific to the parties and the circumstances before the juvenile court. We therefore decline to address the merits of Jeremiah's challenge to the juvenile court's orders.
DISPOSITION
The appeal is dismissed as moot.
/s/_________
GOMES, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
PEÑA, J.