Opinion
F062152
01-04-2012
In re SANTINO P., a Person Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. ERICA P. et al., Defendants and Respondents, SANTINO P., Appellant.
Kimball Sargeant, under appointment by the Court of Appeal, for Appellant. Kevin Briggs, County Counsel and William G. Smith, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 08CEJ300079-1)
OPINION
THE COURT
Before Levy, Acting P.J., Cornell, J. and Gomes, J.
APPEAL from a judgment of the Superior Court of Fresno County. Mary Dolas, Commissioner.
Kimball Sargeant, under appointment by the Court of Appeal, for Appellant.
Kevin Briggs, County Counsel and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
Three-year-old juvenile dependent, Santino P., by his guardian ad litem, appeals from juvenile court orders rejecting requests by respondent Fresno County Department of Social Services (department) and the child's counsel to vacate previous orders and reunify the child with his mother (Welf. & Inst. Code, § 388). His court-appointed appellate counsel contends the juvenile court abused its discretion in its handling of these requests and prejudiced him as a result. On review, we disagree and conclude this appeal is moot. Accordingly, we dismiss the appeal.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
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PROCEDURAL AND FACTUAL HISTORY
In early 2008, then two-month-old Santino suffered severe physical harm while in his parents' care. Consequently, the juvenile court later removed Santino from parental custody and ordered reunification services only for the child's father. In denying the mother reunification services, the juvenile court found the child suffered severe physical abuse due to an act or omission by his parent and it would not be in Santino's best interest for his mother to receive court-ordered reunification services (Welf. & Inst. Code, § 361.5, subd. (b)(6)).
The father failed to make sufficient progress in his court-ordered services. As a result, in February 2010, the juvenile court terminated reunification efforts and set a section 366.26 hearing to select and implement a permanent plan for Santino. The court also ordered that a bonding study as to Santino, his parents and caregivers be conducted. The child's caregivers were maternal relatives.
It took until November 2010 for the bonding study to be completed and a report to be submitted. Consequently, the juvenile court granted a series of continuances of its section 366.26 hearing. According to the therapist who conducted the bonding study and wrote the report, Santino had a positive parent/child relationship with mother. He had formed a healthy and strong attachment due to mother's efforts since the time Santino was placed with the maternal relatives. Nevertheless, due to Santino's young age and the fact that he was only in mother's care for a short time, the therapist did not believe Santino would be greatly harmed if the parent/child relationship were terminated.
However, the therapist also offered these additional opinions. In her view, there was not enough evidence to suggest Santino would be greatly harmed if given the chance to maintain the parent/child relationship with the mother. Also, continuing the parent/child relationship between Santino and mother would promote his wellbeing. The therapist further could not find reason to believe that Santino would be harmed if placed in mother's care.
As of early 2011, Santino had been awaiting permanency planning for approximately one year. It was then that first the department, and later Santino's court-appointed trial counsel and guardian ad litem (trial counsel), made ill-fated attempts in January and February 2011 to seek modification (§ 388) of the court's orders and place Santino with mother subject to family maintenance services. The parties were in apparent agreement that the court should issue such an order.
The court summarily rejected these attempts, based on perceived problems with each petition, and proceeded with permanency planning on February 22, 2011, in light of the significant delay. In spite of evidence that Santino was likely to be adopted, the juvenile court found termination would be detrimental to Santino due to his beneficial relationship with his mother. The court selected a permanent plan living arrangement, informally referred to as long-term foster care, as its permanent plan for Santino. It also set returning Santino home as its permanency goal for the child.
To that end, the juvenile court ordered unsupervised visits between Santino and mother with discretion for liberal visits. The court also set a 30-day review hearing for March 22, 2011, to determine whether services for mother should be ordered. It further directed the department in the interim to assess mother for any further reunification services and offer them to her pending the next hearing.
On the day before the March 22nd review hearing, Santino's trial counsel/guardian ad litem appealed the juvenile court's January and February orders denying the section 388 petitions and its selection of a permanent plan living arrangement as Santino's permanent plan. Meanwhile, a department social worker prepared a written report for the March 22nd review hearing, which disclosed the following information.
Santino began having liberal visits with his mother in February and he appeared to be adjusting well. During liberal visits, Santino would return to his long-term foster care home every other Saturday and return to his mother's care on Sunday.
In early March, mother was re-referred for a Domestic Violence Inventory (DVI) based on some domestic violence incidents between her and Santino's father. As a result of the DVI, it was recommended that mother complete a 52-week Child Abuse/Batterers Treatment program. Because she previously completed 26 weeks of the program, the recommendation was that she complete the remaining 26 weeks of the program. The DVI also recommended that mother complete another mental health assessment to see if she needed any additional services.
In addition, according to the department's report, mother acknowledged that she did not complete all of the services the department had offered her in 2008. She also expressed a willingness and ability to complete any necessary services in order to reunify with Santino.
The department social worker concluded the report with recommendations that: Santino remain in his foster care placement; and mother begin receiving court-ordered reunification services, including the remaining 26 weeks of a Child Abuse/Batterers Treatment program, a mental health assessment and any recommended treatment. The report also recommended liberal visitation with discretion to the department to begin extended visits between Santino and his mother.
According to the juvenile court's minute order for the March 22nd hearing, the court followed the department's recommendations and granted mother reunification services, continued mother's liberal visits with Santino, and granted the department the discretion for extended visits between Santino and mother.
DISCUSSION
Santino's court-appointed appellate counsel contends the juvenile court repeatedly abused its discretion in its handling of the modification requests brought by the department and by the child's trial counsel in January and February 2011. Assuming we were to find prejudicial error on any of the theories he posits, counsel asks that this court reverse and remand the matter, directing the juvenile court to either grant one of the modification requests without a hearing or conduct a hearing on the merits.
In the process, however, appellate counsel attempts to overlook the balance of the appellate record, which establishes, alternatively, that any error was harmless or this appeal is moot. Although the juvenile court summarily dismissed or refused to act on the modification requests, it issued additional orders on both February 22 and March 22, as summarized above, which thoroughly dealt with the substance of the modification requests.
On February 22, the juvenile court found termination would be detrimental to Santino due to his beneficial relationship with his mother and selected long-term foster care as its permanent plan for Santino. However, it did not stop there. It also set returning Santino home to mother as its permanency goal for the child. It further ordered unsupervised visits between Santino and mother with discretion for liberal visits, directed the department, in the interim, to assess mother for any appropriate reunification services, and set the 30-day review hearing to determine whether services for mother should be ordered.
Then, on March 22, one day after the notice of appeal was filed, the juvenile court granted mother's reunification services and continued her liberal visits with Santino. It further granted the department the discretion to provide extended visits between Santino and mother.
Appellate counsel nevertheless urges that the juvenile court's handling of the case was prejudicial because "the collective desire of all the parties" was to return Santino to his mother's full-time care. Notably, he fails to cite any authority and we know of none requiring a court to modify a previously-made order under section 388 based on the collective desire of all the parties.
In any event, we further observe that none of the parties appealed from the juvenile court's March 22, 2011 orders, which stopped short of granting mother custody based on her acknowledged need for reunification services. In that the March 22, 2011 order is now final, this appeal is subject to dismissal as moot. (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315.)
When no effective relief can be granted, an appeal is moot and will be dismissed. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.) It is the reviewing court's duty 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. (Ibid.) When, pending appeal and without any fault of the respondent, an event occurs which renders it impossible for this court, if it should decide the case in favor of appellant, to grant him any effectual relief whatever, the court will dismiss the appeal. (Ibid.)
DISPOSITION
This appeal is dismissed.