Opinion
D041629.
7-16-2003
In re AMY A. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ARNOLD C., Defendant and Appellant.
Arnold C. appeals orders under the Welfare and Institutions Code removing his children, Amy A., Joseph A., and Caitlyn A., from the custody of their mother, Cynthia A. He does not challenge the jurisdictional or dispositional findings, but asserts the court improperly delegated its authority to determine whether he would receive visits with the children. Because we conclude the issue raised by Arnold is moot, we dismiss the appeal.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2002, the San Diego County Health and Human Services Agency (the Agency) removed 11-year-old Amy, nine-year-old Joseph, and seven-year-old Caitlyn from Cynthias custody and filed a section 300 petition on each childs behalf because Cynthia was mentally ill and could not control the childrens behavior. At the time, Arnold was incarcerated in state prison.
In December 2002, the court made true findings on the petitions and ordered reunification services for the parents. However, because Arnold was in prison, the court asked the parties about visits. The social worker believed psychological evaluations for the children were necessary because she thought an expert needed to evaluate whether visitation with Arnold was appropriate. The court ordered: "the issue of visitation of Father be evaluated [sic] and that counsel meet and confer on that issue. If they can resolve it, fine. If not, they can always put it back on special [sic] and address it." In May 2003, the court ordered reasonable and supervised visitation for Arnold with the children.
We took judicial notice of the May 2003 minute order at the childrens request.
DISCUSSION
Arnold asserts the courts visitation orders improperly delegated to the social worker and the attorneys control over whether he would receive visitation. The minors assert Arnolds appeal is moot because in May 2003, the trial court granted the relief he seeks from this court. An appeal is rendered 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. (Woodward Park Homeowners Assoc. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 888.) The question of whether subsequent events in a juvenile dependency case render any given issue moot must be decided on a case-by-case basis. (In re Dylan T. (1998) 65 Cal.App.4th 765, 769.)
Arnold asserts he has not received effective relief because in May 2003, the juvenile court did not provide him with the five months of face-to-face visits he asserts he lost as a result of the December 2002 order. However, Arnold has not shown effective relief would necessarily include those five months of visits. After a child has been removed under section 361, a parent is entitled to visit him or her, unless it would be detrimental to the child. ( §§ 361.5, subd. (f), 362.1, subd. (a)(1)(B).) However, at the time the December order was made, it is not clear whether it was in the childrens best interests to visit Arnold because he was in prison and they had not seen him since 2000 and had severe behavioral problems. Thus, he may not have received face-to-face visits in December 2002.
The children were "extremely defiant" at school. Joseph made derogatory statements about his principal, threw a rock at her, and broke a window at a fast food restaurant. He fought with younger children at school. He had difficulty adjusting to his placement and was aggressive with other children. Amy damaged a neighbors car with a rock. She encouraged her siblings to run out of school. Caitlyn frequently ran away, climbed buildings, and sat on roofs. She disconnected telephones and tore apart chairs at a police station. She then ran outside and jumped on a car and a fence.
Arnold also contends we may grant him effective relief because if we remand, the juvenile court will have to hold a new dispositional hearing, which would effectively start anew the 12-month period of services. The only authority Arnold cites for this proposition is In re Alexandria Y. (1996) 45 Cal.App.4th 1483. However, he cites the factual background of that case, which is not authority for any proposition. The holding of In re Alexandria Y. addresses the existing Indian family exception under the Indian Child Welfare Act. (In re Alexandria Y., supra, 45 Cal.App.4th at pp. 1493-1494.) It does not hold that the court must hold a new dispositional hearing after remand on the issue of visits. Moreover, Arnold has not challenged the orders making the children dependents or removing them from Cynthias custody. We have found no authority that requires us to direct the juvenile court to hold a new dispositional hearing when a parent challenges only the terms of a visitation order. To the contrary, when a court considers the issue of visitation on remand, it would do so based on the circumstances that existed at the time of remand, not those that existed at the time of the original dispositional hearing. (See In re Eileen A. (2000) 84 Cal.App.4th 1248, 1258-1259.)
Arnold also asserts the issue is not moot because losing face-to-face visits with his children for five of the 12 months of the reunification period will impact his ability to reunify and may affect whether his parental rights are terminated. In juvenile dependency cases, an issue is not moot if the purported error infects the outcome of subsequent proceedings. (In re Dylan T., supra, 65 Cal.App.4th at p. 769.)
However, because we cannot determine whether Arnolds lack of face-to-face visits between December 2002 and May 2003 will infect the outcome of subsequent proceedings, the matter is not ripe for our review.
"The ripeness requirement, a branch of the doctrine of justiciability, prevents courts from issuing purely advisory opinions. [Citation.] It is rooted in the fundamental concept that the proper role of the judiciary does not extend to the resolution of abstract differences of legal opinion. . . . The ripeness doctrine is primarily bottomed on the recognition that judicial decision making is best conducted in the context of an actual set of facts so that the issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy." (Pacific Legal Foundation v. California Coastal Commission (1982) 33 Cal.3d 158, 170, 188 Cal. Rptr. 104, 655 P.2d 306.)
Arnold has 12 months to reunify with his children because they are over the age of three. (§ 366.21, subd. (f).) Even without receiving face-to-face visits between December 2002 and May 2003, he may make sufficient progress to reunify with them by the December 2003 12-month review hearing. If he has not reunified by that time, but has regularly visited the children, made significant progress in resolving the problems that led to their removal, and demonstrated the capacity and ability to complete the objectives of his treatment plan and to provide for their safety, protection, physical and emotional well-being, and special needs, he may receive six more months of services. (§ 366.21, subd. (g)(1)(A)-(C).) If reunification has still not occurred, the court may give him additional services. (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1789, 1796.)
Moreover, because Arnold was the childrens primary caretaker before his incarceration in 2000, we presume they are bonded with him. He has been writing to them since December 2002. Because he has a bond with them and they are older, he could effectively communicate with and maintain a relationship with them through letters. Consequently, the record does not show any immediate impact upon his ability to reunify.
Further, this record does not reflect whether the December 2002 order will impact Arnolds parental rights. Parental rights are terminated at a section 366.26 hearing. A hearing under that section cannot be scheduled in this case until after the December 17, 2003 12-month review hearing. ( § 366.21, subd. (f).) By that time, Amy will have turned 12, and can object to being adopted. ( § 366.26, subd. (c)(1)(B).) These children are also bonded to each other. That bond may be sufficiently strong as to preclude terminating parental rights under the section 366.26, subdivision (c)(1)(E) exception. The childrens severe behavioral problems may also affect their adoptability. Because of Amys age, the sibling bond, and the childrens behavioral problems, the issue of whether parental rights should be terminated may never arise. Consequently, whether Arnolds rights were impacted when he did not receive face-to-face visits between December 2002 and May 2003 is not yet ripe for review. If Arnolds reunification services are terminated, he may argue to the trial court that he did not reunify because he missed five months of visitation.
DISPOSITION
The appeal is dismissed.
WE CONCUR: HALLER, Acting P. J., and McDONALD, J.