Opinion
F074189
07-25-2017
In re AMBER H., a Person Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. J.T., Defendant and Appellant.
Kristin Bryce Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13CEJ300307-1)
OPINION
APPEAL from orders of the Superior Court of Fresno County. Gary L. Green, Commissioner. Kristin Bryce Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
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In May 2015, then 12-year-old Amber H. was living with her father, Carl M., who obtained full custody of her in January 2013, and her stepmother. The Fresno County Department of Social Services (Department) initiated these dependency proceedings that month, after Amber physically attacked her stepmother. Amber's mother, J.T. (mother), who was the noncustodial parent, asked that Amber be placed with her, but the juvenile court declined mother's request and instead took dependency jurisdiction over Amber, removed her from father's custody, and ordered reunification services for mother and Carl. Reunification services continued for both parents until the 12-month review hearing. (Welf. & Inst. Code, § 366.21, subd. (f).) At the contested 12-month review hearing held in August 2016, the juvenile court found reasonable services had been provided to mother and Carl, terminated reunification services for mother, suspended mother's visitation, continued reunification services for Carl, and set an 18-month review hearing for November 2016.
Undesignated statutory references are to the Welfare and Institutions Code.
On mother's appeal from these orders, mother challenges only the reasonable services finding. In her briefing filed with this court, she argues the finding is not supported by substantial evidence because she was never offered a mental health evaluation, as required by the juvenile court's dispositional service order, and individual therapy was not offered to her until just before the 12-month review hearing, even though multiple providers had stated mother needed to engage in her own therapy in order to be able to respond to Amber's needs. She asserts the Department failed to fulfill its obligation to provide reasonable services. She asks us to reverse the juvenile court's order terminating her reunification services and direct the juvenile court to offer her at least an additional six months of reunification services, including a mental health evaluation and individual therapy.
In November 2016, while this appeal was pending, the juvenile court terminated Carl's reunification services at the 18-month review hearing and set a section 366.26 hearing. At the section 366.26 hearing, held on March 20, 2017, the juvenile court found termination of parental rights would be detrimental because Amber was difficult to place for adoption due to her age and no one was willing or able to provide an adoptive home or guardianship. The court found the appropriate permanent plan for Amber was to remain in foster care with the permanency goal of legal guardianship. The court ordered Amber to remain in her current foster home, with the specific goal of legal guardianship, and approved a planned permanent living arrangement as the recommended permanent plan.
Following the 18-month review hearing, mother sought an extraordinary writ in this court directing the juvenile court to reinstate her reunification services and visitation, and asked for a temporary stay of the section 366.26 hearing pending review of her writ petition. In an unpublished decision, J.T. v. Superior Court (F074767, Feb. 24, 2017), we dismissed the writ petition, as mother failed to challenge any of the juvenile court's rulings from the setting hearing, and denied her request for a temporary stay without prejudice to ask for a stay of the hearing by filing a traditional writ of mandate. Mother did not file such a writ.
By a June 1, 2017 letter, this court invited the parties to file supplemental briefing on (1) the propriety of taking judicial notice of the March 20, 2017 orders, and (2) whether this appeal is now moot. Only mother filed a response. While she does not object to our taking judicial notice of the March 20, 2017 orders, she argues the appeal is not moot because (1) we can render effective relief as these orders did not deprive us of jurisdiction since parental rights were not terminated, (2) her failure to appeal from the March 20, 2017 orders cannot bar us from considering her appeal on the merits, as reasonable services were not an issue at the section 366.26 hearing, (3) while the 18-month limit for reunification services has passed since she filed her notice of appeal, the review period may be extended by granting a continuance under section 352, and (4) termination of her reunification services could adversely affect her in future proceedings.
"An appellate court will not review questions which are moot and only of academic importance, nor will it determine abstract questions of law at the request of a party who shows no substantial rights can be affected by the decision either way. [Citation.] 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.] On a case-by-case basis, the reviewing court decides whether subsequent events in a dependency case have rendered the appeal moot and whether its decision would affect the outcome of the case in a subsequent proceeding." (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1054-1055.)
Contrary to mother's assertion, we cannot render effectual relief in this case. Even were we to agree with mother that she was not provided reasonable services, the 18-month period for providing such services has passed and a plan of long term foster care has been established for Amber, with a goal of guardianship. At that point, the case moved into the post-permanency stage and section 361.5, which governs reunification services after removal, has no further operation. (D.T. v. Superior Court (2015) 241 Cal.App.4th 1017, 1038 (D.T.).) Mother did not appeal from the order establishing the plan, which is now final and binding. (Cal. Rules of Court, rule 8.406(a) [unappealed orders become final in 60 days].) Given this, we cannot now set aside that order, which we would be required to do were we to find error, and return the case to the reunification period.
We note the juvenile court is not foreclosed from ordering reunification services in a post-permanency phase when the child has been placed outside the home as part of a permanent plan, but parental rights have not been terminated. (D.T., supra, 241 Cal.App.4th at p. 1036.) If a parent can show " 'further efforts at reunification are the best alternative for the child,' " the court is authorized to grant six more months of reunification services and up to six months of family maintenance services. (Ibid.; § 366.3, subd. (f).) Section 366.3, subdivision (f) "gives the juvenile court discretion to order additional services if the child's unique circumstances suggest that is the 'best alternative.' By placing the burden of proof on the parent and focusing exclusively on the child's best interests, section 366.3, subdivision (f) promotes the welfare of the child and avoids interference with permanency planning, while leaving open the possibility of reunification in those rare cases where it might remain the child's best option." (D.T., supra, 241 Cal.App.4th at p. 1041.) Here, while the juvenile court could order reunification services for mother were she able to show it was in Amber's best interest to do so, we cannot order such services in the first instance.
Mother claims her failure to appeal from the orders made at the section 366.26 hearing cannot bar this appeal because the question of reasonableness of reunification services is not considered at the section 366.26 hearing. The problem, however, is that the order made at the section 366.26 hearing establishing long term foster care as the permanent plan is now final. To preserve the issue mother raises in this appeal, she should have sought a traditional writ of mandate to stay the section 366.26 hearing, as we advised in our decision denying the petition for extraordinary writ. Had that occurred, we could have stayed the hearing, decided the appeal and, if we determined reasonable services were not provided, vacated the section 366.26 hearing, as mother suggests. (In re Calvin P. (2009) 178 Cal.App.4th 958, 964 [when a section 366.26 has been set and a parent has not received reasonable services, "the reviewing court will vacate the order setting the section 366.26 hearing so that the services may be provided"].) Instead, the section 366.26 hearing proceeded as scheduled and a permanent plan was established that prevents us from rendering the relief mother requests on this appeal.
We reject mother's assertion that the appeal is not moot because the purported error might infect the outcome of subsequent proceedings. (In re Dylan T. (1998) 65 Cal.App.4th 765, 769.) Mother asserts that if the order terminating her reunification services stands it could provide a basis, should there be a future dependency case involving mother's other children, to bypass reunification services pursuant to section 361.5, subdivision (b)(10). It is entirely speculative that such a situation would occur and even if it did, mother fails to show that the section 361.5, subdivision (b)(10) bypass provision would apply in a future dependency case, as the statute applies only if the sibling or half sibling had been removed from the parent pursuant to section 361. Here, Amber was not removed from mother's custody pursuant to section 361, as mother was a noncustodial parent. As such, it is not apparent that the order terminating services as to Amber would have any effect in subsequent proceedings involving mother's other children.
Section 361.5, subdivision (b)(10) allows the juvenile court to deny reunification services to a parent where "the court ordered termination of reunification services for any siblings or half sibling of the child because the parent . . . failed to reunify with the sibling or half-sibling after the sibling or half sibling had been removed from that parent . . . pursuant to Section 361 and that parent . . . is the same parent . . . described in subdivision (a) and that, according to the findings of the court, this parent . . . has not subsequently made reasonable efforts to treat the problems that led to the removal of the sibling or half-sibling of that child from that parent . . . ." (Italics added.) --------
In sum, we conclude mother's challenge to the juvenile court's finding at the 12-month review hearing that reasonable services were provided is moot. We do not mean to suggest that mother's contentions, if not moot, would have merit. We simply conclude we lack jurisdiction to consider them. In so concluding, we take judicial notice of the juvenile court's March 20, 2017 minute order and orders attached thereto. (Evid. Code, §§ 455, 459.)
DISPOSITION
The appeal is dismissed as moot.
/s/_________
GOMES, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
PEÑA, J.