Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. JV320221A & JV320221B.
RUVOLO, P. J.
I.
INTRODUCTION
Appellant J.M. is the mother of two children, H.M. and T.M., who were removed from her custody and adjudged juvenile court dependents. (Welf. & Inst. Code § 300, subds. (b), (g).) In this appeal, J.M, does not challenge the court’s jurisdictional findings. Instead, she appeals the court’s dispositional findings denying her reunification services, denying her visitation, and transferring the case from Lake County to Santa Clara County. We affirm.
All statutory references are to the Welfare and Institutions Code.
II.
FACTS AND PROCEDURAL HISTORY
A brief factual summary will suffice as the facts will be developed more fully in considering the arguments raised on appeal. On April 3, 2009, the children, 15-year-old H.M. and 12-year-old T.M., were removed from appellant’s home and placed together in a foster home in Lake County. The children were taken into protective custody based on allegations that appellant had been supplying them with marijuana. When interviewed, both children confirmed that appellant had been supplying them with marijuana for the last two years, and that appellant was using marijuana and methamphetamines. Appellant was placed under arrest.
Dependency proceedings were initiated. The court sustained allegations under section 300, subdivisions (b) and (g), that appellant was unable to protect the children due to her methamphetamine abuse, marijuana abuse, and her perpetration of domestic violence, for which she had previously served time in state prison. The court also sustained an allegation that appellant had been providing marijuana to the children.
Following the jurisdictional hearing, the court made its disposition orders on June 1, 2009. The court denied appellant’s request for reunification services and visitation, finding that visits were “detrimental to the children.” The court granted reunification services and visitation to the children’s presumed father, who sought custody of them. The father had previously had custody of the children for approximately 10 years, when they were younger, but he had lost contact with them in recent years. He is quoted in a Department report as stating, “I want my [children] back. I haven’t always been a perfect parent but I’m willing to do anything.”
In entering this dispositional order, we note that the court did not adopt the recommendation made by counsel for the Lake County Department of Social Services (the Department) at the conclusion of the hearing that appellant be granted reunification services. Invoking a claim of judicial estoppel, appellant now argues that respondent is estopped from asserting a position on appeal that is contrary to the position the Department asserted at the dispositional hearing. Setting aside the question of whether the doctrine of judicial estoppel may be applied in a dependency hearing, where the focus is on the best interest of the child, one of the requirements for the application of judicial estoppel is clearly not met here. Judicial estoppel applies when “(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake. [Citations.]” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.) The third judicial estoppel factor of success is not satisfied on the record here, as the court issued an order contrary to the Department’s recommendation. (See Jogani v. Jogani (2006) 141 Cal.App.4th 158, 170-171 [“[t]he factor of success—whether the court in the earlier litigation adopted or accepted the prior position as true––is of particular importance.”].)
Pending any permanent custody determination, the court continued the children their foster care placement in Lake County so they could finish out the school year. After a transition period, the goal was to grant the father legal and physical custody. To facilitate reunification, the court ordered the case transferred to Santa Clara County, where the father resides. Appellant filed this appeal.
Appellant repeatedly expresses concerns about the suitability of the father as a custodial parent. Those concerns are irrelevant to the issues raised in this appeal.
III.
DISCUSSION
A. Mootness
Since the filing of the instant appeal from the original dependency proceeding, there have been more hearings and appeals. Appellant filed a motion on November 24, 2009, requesting this court take judicial notice of the current status of this case. We granted the motion by order filed on December 1, 2009, without a determination of relevance. (See Evid. Code, § 452, subds. (c), (d).) After due consideration, we consider the proffered documents relevant because, in dependency cases, subsequent events oftentimes either moot issues or alter the appropriate relief. (See, e.g., In re Tania R. (1995) 32 Cal.App.4th 447, 450-451 [encouraging Legislature to provide for review of orders following juvenile dependency hearings by writ petition to permit appellate court to grant timely relief].)
Pursuant to one of the orders challenged in this appeal, the matter was transferred from Lake County to Santa Clara County on June 12, 2009. (Santa Clara County Case Nos. JD06398 and JD19721.) On September 22, 2009, the Santa Clara County Superior Court made “exit orders” terminating dependency jurisdiction over H.M and T.M., and granting the father sole legal and physical custody of the children. Appellant was granted “a minimum” of one supervised visit per month, “for two hours each.” On November 4, 2009, appellant filed a notice of appeal challenging these orders.
In appellant’s motion for judicial notice, she claims the fact that dependency jurisdiction over the children has been terminated should not preclude our review of the issues she has raised in this appeal. She argues that her “multiple claims of error affect the validity of the orders made by the juvenile court, and those errors infect subsequent orders made by the Santa Clara County Superior Court.”
As the court instructed in In re Michelle M (1992) 8 Cal.App.4th 326, when dependency proceedings are dismissed during the pendency of an appeal, the aggrieved parent’s remedy is to file an appeal from the juvenile court’s order terminating jurisdiction in order to preserve his or her right to appeal from the termination order and the orders entered prior to the dismissal that continue to affect the rights of the children or parents. (Id. at pp. 329-330; In re Hirenia C. (1993) 18 Cal.App.4th 504, 517-518.) Appellant has done just that, thereby preserving her right to challenge the juvenile court’s termination of jurisdiction over the children and any earlier orders that continue to adversely affect her. (In re Joshua C. (1994) 24 Cal.App.4th 1544, 1548.)
Appellant claims that her appeal challenging the original dispositional order denying her reunification services, denying her visitation, and transferring the case from Lake County to Santa Clara County is still viable because it “affect[s] the validity of the orders made by the juvenile court, and those errors infect subsequent orders made by the Santa Clara County Superior Court.” Respondent Lake County Department of Social Services (the Department) does not claim otherwise; nor has it asked that we dismiss this appeal as moot. Thus, we will address the issues raised in this appeal.
We need not, however, address appellant’s challenge to the court’s denial of visitation during the dependency period. As previously noted, since this appeal was filed, not only has the Santa Clara County juvenile court terminated dependency jurisdiction, but also, in its exit order, the court restored appellant’s right to supervised visitation with H.M. and T.M.––the very relief she seeks by this appeal. Consequently, this issue is clearly moot since relief has been granted.
B. Bypass of Reunification Services under Section 361.5, subdivision (b)(10)
Reunification services may be bypassed pursuant to section 361.5, subdivision (b)(10), where the court finds that a parent has previously “failed to reunify with the sibling or half sibling” of the dependent child, and the parent “has not subsequently made a reasonable effort to treat the problems that led to the removal of the sibling or half sibling” The court applied this statute to the distinct facts of this case and determined that bypass of reunification services to appellant was appropriate. Appellant now argues that “under de novo review, section 361.5, subdivision (b)(10) is inapplicable as a matter of law.”
At issue here is section 361.5, subdivision (b)(10), which provides: “(b) Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶].... (10) That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian.” (§ 361.5, subd. (b)(10).)
The court applied section 361.5, subdivision (b)(10), because over a decade earlier, appellant lost custody of T.M. and H.M. and failed at reunification services. On July 19, 1995, then one-year-old H.M. was removed from appellant’s care based on an incident of physical abuse, which appellant admitted. On August 7, 1995, shortly after T.M.’s birth, T.M. was removed from appellant’s care on an allegation of general neglect. The Department’s report indicates that appellant “failed reunification services,” and her services were terminated at the 12-month review hearing. T.M. was placed with the father on March 20, 1997, and H.M. was placed with him on December 29, 1998. Eight years later, in 2003, the children were returned to appellant’s custody. According to appellant, after termination of the children’s dependency, she petitioned the Santa Clara County family court for custody of the children “and won by default when [father] failed to appear.”
Appellant argues that her prior failure to reunify with the children in 1995 should not affect their current dependency case. Her position is that in order for section 361.5, subdivision (b)(10) to apply, “the child or children in question in the present case must be other than the child or children who were previously removed from the parent and for whom reunification services were terminated.” (Original italics.) Accordingly, appellant interprets the statute to apply to a parent only where there was an earlier dependency proceeding involving the dependent child’s sibling, but not the dependent child, in which the parent did not reunify with the sibling. She also claims that “having a legal award of custody of the minors since 2003 means that she has reunified with them.”
Before assessing appellant’s statutory arguments, we point out that in interpreting subdivision (b)(10) of section 361.5, we must “give the provision a reasonable and commonsense interpretation consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity. [Citation.]” (Marshall M. v. Superior Court (1999) 75 Cal.App.4th 48, 55.) The interpretation of a statute is a question of law, and is reviewed de novo. (Robin J. v. Superior Court (2004) 124 Cal.App.4th 414, 420.)
We first point out that even if we accept appellant’s interpretation, the statute’s requirement that a parent has previously “failed to reunify with the sibling or half sibling” is undeniably met in this case. Although the express language of section 361.5, subdivision (b)(10) creates an anomaly with respect to a single child who is the subject of multiple dependency proceedings, we note that those circumstances do not exist here. As the trial court pointed out, H.M. and T.M. are siblings. Each sibling was the subject of prior dependency proceedings. Appellant was unable to reunify with either sibling, and the court terminated reunification services for each child. The court was therefore entitled to invoke section 361.5, subdivision (b)(10) in denying appellant reunification services because the requirement that “the parent previously failed to reunify with a sibling” is undeniably met in this case. (In re Albert T. (2006) 144 Cal.App.4th 207, 217.)
In any event, we are convinced that appellant fails to give a rational interpretation to section 361.5, subdivision (b)(10), given its legislative purpose. “In enacting section 361.5, subdivision (b)(10), ‘the Legislature has made the decision that in some cases, the likelihood of reunification is so slim that scarce resources should not be expended on such cases.’ [Citation.] ‘Inherent in this subdivision appears to be a very real concern for the risk of recidivism by the parent despite reunification efforts.’ [Citation.]” (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.)
We concur with respondent’s observation that “[i]t would not resolve the obvious concerns embodied in the statute if a parent could fail at reunification, and then since the children are the same ones they failed with previously, get another chance to reunify.” We also agree with respondent that an interpretation of the statute that requires the prior dependency proceedings involve completely different children than those involved in the current proceeding would defeat the legislative intent to deny services to parents who have previously demonstrated an inability to treat the problems leading to the dependency of their children. After all, it is the recurrent or repetitive nature of the parent’s harmful conduct that is central to the purpose of the statute, not whether the past treatment involved the child in question or other children in the household. Accordingly, we can see no reason to allow a parent who has previously failed to reunify with his or her child, and then failed once again when given another opportunity to be an adequate parent, to escape the purview of section 361.5, subdivision (b)(10).
Appellant next contends that “[e]ven if the juvenile court correctly applied section 361.5, subdivision (b)(10) as a matter of law” there is no evidence to support the juvenile court’s finding that she had not made reasonable efforts to treat the problems that led to the removal of H.M. and T.M. This issue turns on the second prong of section 361.5, subdivision (b)(10): whether the parent has “subsequently made a reasonable effort to treat the problems that led to removal of the sibling....” (§ 361.5, subd. (b)(10).) That “clause in the statute provides a means of mitigating an otherwise harsh rule that would allow the court to deny services simply on a finding that services had been terminated as to an earlier child when the parent had in fact, in the meantime, worked toward correcting the underlying problems.” (In re Harmony B. (2005) 125 Cal.App.4th 831, 842.) We review the court’s necessary determination that appellant failed to make a reasonable effort to treat the problems leading to her children’s removal under the substantial evidence test. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 599-600; Amber K. v. Superior Court (2006) 146 Cal.App.4th 553, 560.)
Upon our examination of the record in its entirety, we find substantial evidence to support the juvenile court’s conclusion that appellant had not made a reasonable effort to treat the problems leading to H.M. and T.M.’s removal. In the current dependency, the Department’s report prepared for the disposition hearing indicated that appellant “has not demonstrated an ability or willingness to engage in services to address the problems which led to the removal of her children from her care.... [She] continues to have untreated drug problems, lacks appropriate housing, has a history of domestic violence and limited parenting skills which has negatively affected her relationship with her children.”
When she testified, appellant admitted that she had a 16-year addiction to methamphetamines. She acknowledged that when she uses drugs, her “life falls apart immediately, it has a complete negative effect on everything.” At the June 1, 2009 dispositional hearing, appellant admitted that she had recently used drugs and that she was homeless. However, she testified that “now I see my mistakes,” and claimed to have recently enrolled in an out-patient drug treatment program. While we commend appellant for finally approaching the primary cause of her parental deficiencies––her substance abuse––on this record, the court could reasonably find that her current, brief, limited undertaking with its uncertain outcome does not constitute a reasonable effort to correct her longstanding parental deficiencies. (See, e.g., Francisco G. v. Superior Court, supra, 91 Cal.App.4th at p. 601.)
A final opportunity for reunification services is provided in section 361.5, subdivision (c), which allows the juvenile court to order services even where bypass is otherwise warranted, if doing so is in the child’s best interest. (Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 107.) The parent has the burden of affirmatively demonstrating that reunification is in the best interests of the children. (In re Ethan N. (2004) 122 Cal.App.4th 55, 66.)
“[A] court called upon to determine whether reunification would be in a child’s best interest may, indeed, consider a parent’s current efforts and fitness as well as the parent’s history. [Citation.]” (In re Ethan N., supra, 122 Cal.App.4th at p. 66.) The gravity of the problems that led to the dependency, the strength of relative bonds between the dependent child and the parent, and the child’s need for stability and continuity are all relevant considerations in determining the best interests of the children. (Id. at pp. 66-67.) “The court has broad discretion to determine what would best serve and protect the child’s interest and to fashion a dispositional order in accord with this discretion. [Citations.]” (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) “As a reviewing court, we will reverse a juvenile court’s order denying services only if that discretion has been clearly abused. [Citation.]” (In re Angelique C. (2003) 113 Cal.App.4th 509, 523-524.)
The court did not abuse its discretion by finding that it is not in the children’s best interests to prolong the dependency process to provide reunification services to appellant. (Francisco G. v. Superior Court, supra, 91 Cal.App.4th at p. 601.) We echo the trial court’s observation that the “kids have suffered enough, they no longer can wait for their mother to clean up her act.”
In arguing otherwise, appellant ignores her significant untreated methamphetamine addiction and her damaged relationships with the children. The children indicated they did not want to reunify with appellant because they feared her behavior was a “cycle that will just keep on going... then we’ll just end up right back in the system.” The seriousness of the criminal conduct that resulted in the current dependency, coupled with the unmitigated history of appellant’s failure to gain control of her life, provides ample support for the finding that reunification is no longer in the best interests of the children. (In re Ethan N., supra, 122 Cal.App.4th at p. 67; Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 73.)
C. Transfer Order
Appellant contends that the juvenile court abused its discretion when it transferred the case to Santa Clara County pursuant to section 375. Whether to transfer a case is a matter for the trial court’s sound discretion; and the exercise of that discretion will be upheld on appeal unless it exceeds the bounds of reason. (Maribel M. v. Superior Court (1998) 61 Cal.App.4th 1469, 1478; In re R.D. (2008) 163 Cal.App.4th 679, 684.)
Section 375 provides: “Whenever a petition is filed in the juvenile court of a county other than the residence of the person named in the petition, or whenever, subsequent to the filing of a petition in the juvenile court of the county where such minor resides, the residence of the person who would be legally entitled to the custody of such minor were it not for the existence of a court order issued pursuant to this chapter is changed to another county, the entire case may be transferred to the juvenile court of the county wherein such person then resides....”
The basis for the court’s transfer order was that Santa Clara County was where the father resided. At the dispositional hearing, the father was identified as the parent more likely to reunify with the children. He was the only parent granted visitation and reunification services, and it was believed Santa Clara County could more effectively monitor the father’s compliance with his reunification plan. However, the court decided to keep the children temporarily in foster care in Lake County so that they could continue their excellent academic progress and finish out the school year. This would also enable their father to have additional time within which to seek appropriate housing.
According to appellant, the transfer order was improper because she “was the person entitled to custody of the minors under prior court order... and neither her residence nor the minors’ residence changed; therefore, the juvenile dependency case could not be transferred to Santa Clara County simply because the father lived there and was to receive reunification services.” In short, appellant argues that because she had custody of the children before the dependency petition was filed, and that, at the conclusion of the disposition hearing, her residence and that of the children remained in Lake County, the case was improperly transferred to Santa Clara County.
Appellant’s challenge to the transfer order has no merit. As has been repeatedly noted by the courts which have analyzed section 375, “[j]urisdiction can be transferred to a parent’s county of residence even though the children live in or are wards of a different county than where the parent resides.” (In re Lisa E. (1986) 188 Cal.App.3d 399, 403; accord, In re Christopher T. (1998) 60 Cal.App.4th 1282, 1291-1292 [“it is clear section 375 allows a transfer to the county of the natural parent’s residence”]; In re J.C. (2002) 104 Cal.App.4th 984, 992 [“section 375 permits, but does not require, a court to transfer a juvenile case to the county where the parent resides.”] Here, the court’s order transferring this matter to Santa Clara County was proper because that is the county where the father resided.
Moreover, the record supports the conclusion that the transfer order was in the children’s best interests. (See In re R.D., supra, 163 Cal.App.4th at p. 687 [transferring court is required to make findings as to whether the transfer is in the child’s best interests].) The anticipated placement with the father would undoubtedly require ongoing supervision while the children adjusted to their new living situation. Accordingly, “the focus of the proceedings should have been which county could best monitor the children’s well-being and the suitability of their placement on a monthly basis, as well as keep tabs on their academic progress and other needs.” (In re J.C., supra, 104 Cal.App.4th at p. 994.) The children are now teenagers, “so it is reasonable to anticipate that they will encounter difficulties and may seek assistance from their social worker or legal counsel. The children would be hampered in seeking these services if they are reachable only by a long-distance telephone call....” (Ibid.) The court did not abuse its discretion in concluding that Santa Clara County would be the appropriate jurisdiction to undertake supervision of the reunification of this family.
IV.
DISPOSITION
The judgment is affirmed.
We concur: REARDON, J. SEPULVEDA, J.