Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Napa County Super. Ct. No. JV15082
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to art. VI, § 6 of the California Constitution.
Mother appeals from a February 2007 jurisdictional order and a March 2007 dispositional order. After she filed her opening brief, the Agency conceded error in the juvenile court and the court vacated the challenged orders. New jurisdictional and dispositional orders were subsequently issued, which are the subject of a separate appeal. We dismiss this appeal as moot.
Background
On January 7, 2007, Karen F. (Mother) hit her son, David H. (born in 1999) with an electrical cord and belt 21 times. David had bruises and red marks on his arms, back and chest and he told a social worker Mother had hit him in the past. The Napa County Health and Human Services Agency (Agency) placed David in protective custody and Mother was arrested. Mother immediately informed the Agency she was a member of the Western Cherokee Nation.
On January 11, 2007, the Agency filed a petition pursuant to Welfare and Institutions Code section 300, subdivision (a), alleging David had suffered, or there was a substantial risk he would suffer, serious physical harm inflicted nonaccidentally by Mother. Between 2000 and June 2006, the Agency had received 11 referrals for neglect or physical abuse of David by Mother, one of which was substantiated. The court detained David on January 11 and found that reasonable efforts had been made by the Agency to prevent removal.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
At the February 6, 2007 jurisdiction hearing, Mother waived her right to an evidentiary hearing. The court sustained the petition. The Agency reported that it had notified the Cherokee tribes of the proceeding as required by the Indian Child Welfare Act (ICWA, 25 U.S.C. § 1901 et seq.).
The Agency’s disposition report recommended family reunification services for Mother while David remained in foster care. Mother contested the recommendation, seeking David’s return to her home and family maintenance services. Following an evidentiary hearing, the court made the following findings. The ICWA “does or may” apply to this case. The Agency made reasonable efforts to return David to the home and active efforts to prevent the breakup of the Indian family, but those efforts were unsuccessful. There was clear and convincing evidence of a substantial danger to David’s physical health if he were returned home and continued physical custody with Mother was likely to cause serious emotional or physical damage. In a March 15, 2007 disposition order, the court ordered family reunification services for Mother.
Mother appeals from the disposition order. She argues there were multiple violations of the ICWA in the proceedings, including inadequate notice to the Cherokee Nation of the jurisdiction and disposition hearings, lack of ICWA expert testimony, inadequate active efforts to prevent the breakup of the Indian family, failure to comply with ICWA placement preferences, and failure to advise Mother of her ICWA rights. She also argues the court’s finding of detriment that prevented David’s return to Mother’s home is not supported by substantial evidence under the legal standards of the ICWA or California dependency law. Finally, if any of these arguments was forfeited by her attorney’s failure to raise them in the juvenile court, she received ineffective assistance of counsel. In her opening brief, which was filed May 31, 2007, Mother asks this court to reverse the jurisdictional and dispositional orders and remand for new jurisdictional and dispositional hearings.
On May 31, 2007, concurrently with the filing of Mother’s opening brief, Mother’s appellate counsel sent the Agency a letter suggesting it stipulate to reversal of the jurisdictional and dispositional orders. On June 1, the Agency moved the juvenile court to set aside the jurisdictional and dispositional orders, advise Mother of her ICWA rights, and set a new jurisdictional and dispositional hearing. In an attached declaration, county counsel acknowledged the Agency had not given the Cherokee Nation 10 days’ notice of the jurisdictional and dispositional hearings or any notice of the contested dispositional hearing; had not advised Mother of her ICWA rights; and had not provided ICWA expert testimony at the dispositional hearing. On June 12, the court granted the Agency’s motion, set aside the orders, found the ICWA applied, advised Mother of her ICWA rights, and scheduled a jurisdictional and dispositional hearing. At the July 11 hearing, the court sustained the petition and ordered family reunification services for Mother. Mother has appealed from that order.
Discussion
In its Respondent’s Brief (filed August 1, 2007), the Agency argues this appeal should be dismissed for mootness because the orders challenged in the appeal have been vacated by the juvenile court. (In re Pablo D. (1998) 67 Cal. App.4th 759, 761 [“Because we are unable to fashion an effective remedy, the appeal is moot”].) Mother disagrees.
First, Mother claims this appeal is not moot because her appeal of the July 11, 2007 order was initially filed by the clerk of this court under the same case number as this appeal. That problem has been rectified. On September 6, this court ordered that the notice and amended notice of appeal of the July 11 order be stricken from this appeal and lodged as case number A118968.
Second, Mother argues the proper remedy for the errors she raises in this appeal, many of which have been conceded by the Agency, is dismissal of the dependency case rather than reversal of the jurisdictional and dispositional orders and remand for new jurisdictional and dispositional hearings. However, reversal and remand is the precise remedy Mother sought in her opening brief. Mother’s new argument for dismissal is improperly raised for the first time in her reply brief. (REO Broadcasting Consultants v. Martin (1999) 69 Cal. App.4th 489, 500.) To the extent Mother’s argument for dismissal is founded on events that occurred after she filed her notice of appeal from the March 15, 2007 order, the proper forums to raise the argument were in the juvenile court during the June and July proceedings and on appeal from the July order. Mother in fact requested dismissal of the dependency action during a June 26 hearing and she argues on her second appeal that the dependency case should have been dismissed. We will not address the issue here.
Mother opposes dismissal of this appeal because she fears the arguments she raises in this appeal will be deemed forfeited in future proceedings. Mother will not be prejudiced by a dismissal. Her specific argument for reversal of the jurisdictional and dispositional orders need not be revisited because the orders have been vacated. Her underlying legal and factual arguments will not be deemed forfeited or resolved against her because we are not deciding this appeal on the merits. (See People v. Shuey (1975) 13 Cal.3d 835, 842 [doctrine of law of the case does not apply to appellate rulings that do not decide issues on the merits].)
Mother cites case law holding that appeals in dependency cases are not moot if the purported error is of such magnitude as to infect the outcome of later proceedings. (In re Kristin B. (1986) 187 Cal. App.3d 596, 605; In re Dylan T. (1998) 65 Cal. App.4th 765, 769.) Those cases are distinguishable.
Kristin B. held that an appeal challenging a jurisdictional finding should not be dismissed as moot following termination of the appellant’s parental rights, which was also appealed. (Kristin B., supra, 187 Cal. App.3d at pp. 605-606.) At the time Kristin B. was decided, the termination proceeding was a separate civil action. (See In re Cynthia D. (1993) 5 Cal.4th 242, 246 [discussing former Civ. Code § 232].) Also at the time Kristin B. was decided, the Legislature had not yet adopted procedures to ensure that appellate challenges to prior juvenile dependency proceedings were resolved before the juvenile court terminates parental rights at a section 366.26 hearing. (See § 366.26, subd. (l).) In Kristin B., the court faced a situation where unresolved challenges to underlying jurisdictional findings, which potentially infected the outcome of the termination proceedings, could not be addressed before the termination proceeding took place or in an appeal of the termination judgment. Those difficulties are not present here. The jurisdictional or dispositional orders challenged in this appeal have been vacated and, as already explained, Mother’s continuing concerns could have been raised in the juvenile court proceedings in June and July 2007 and on appeal of the July order.
Dylan T. is also distinguishable. The court there ruled that an appeal challenging the denial of visitation while a parent was incarcerated was not mooted by the parent’s release from custody. (Dylan T., supra, 65 Cal. App.4th at p. 769.) Because the denial of visitation had affected the parent-child relationship, the error could infect the outcome of a section 366.26 hearing. (Dylan T., at p. 769; see § 366.26, subd. (c)(1)(B)(i).) The court therefore proceeded to consider the merits of the visitation issue, determined visitation was wrongfully denied, and ordered the juvenile court not to consider the lack of visitation during incarceration when it evaluated the parent’s reunification efforts or made other orders. (Dylan T., at pp. 775-776.) Here, the Agency has already conceded errors in the initial jurisdictional and dispositional proceedings, the original jurisdictional and dispositional orders have been vacated, and Mother has had the opportunity to argue in the juvenile court and on appeal of the July 2007 order that the resulting months of separation from David without lawful jurisdictional and dispositional orders prejudiced her and should not count against her. We need not address those issues in this opinion.
Disposition
This appeal is dismissed as moot.
We concur. JONES, P.J., SIMONS, J.