Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Los Angeles County, Zeke Zeidler, Judge, Los Angeles County Super. Ct. No. CK60444
Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens and Jacklyn K. Louie, Deputy County Counsel for Plaintiff and Respondent.
ARMSTRONG, J.
C.P. appealed from August and October 2007 orders denying her Welfare and Institutions Code section 388 petitions in the dependency case concerning her three children. The dependency proceeded while the appeal was pending, and on May 21, 2008, appellant's parental rights were terminated. (§ 366.26.) Appellant did not appeal from that order. It is now final, and could not be modified even if we were to reverse the orders denying the section 388 petitions. Because no effective relief can be granted, this appeal is moot and must be dismissed. (In re Jessica K. (2000) 79 Cal.App.4th 1313.)
All further statutory references are to that code.
We make that order, but do so with two comments. First, we ask that in the future, County Counsel and counsel for parents take pains to ensure that moot appeals are timely dismissed. In this case, the order terminating parental rights was made while this appeal was in briefing. Timely dismissal could have spared this court and counsel from unnecessary work.
Next, we comment, as we did in Jessica K., on the dilemmas posed by the unusual nature of dependency proceedings, which are not stayed while appeals are pending. (§ 395, subd. (a)(1).)
This dependency was initiated largely on allegations concerning appellant's drug use. On her section 388 petitions, appellant's supporting evidence was that, in contrast to her behavior earlier in the dependency, she was testing negative for drugs, attending a drug program, and visiting her children. She sought additional reunification services and more visits. At the time of the first section 388 petition, the children were not in a potential adoptive home and the two older children said that they wanted to live with their mother. At the time of the second section 388 petition, the children were in a potential adoptive home, but had only been there for one week.
We do not opine on the merits of the trial court decisions denying appellant's section 388 petitions, and we have no record of subsequent events in this dependency. We cannot say why parental rights were terminated. We do, however, note that a parent free from drugs, whose children were not in a potential adoptive home, and who was granted additional visits and services, could seek and perhaps achieve reunification. In contrast, if that parent's section 388 petition were denied, the parent would not have been able to play a parental role in her children's lives, and might well have no defense at the section 366.26 hearing. The children might well have spent considerable time in a potential adoptive home, making reunification even more unlikely. All of this would be true even if denial of the petition was an abuse of discretion. Thus, a reversal and remand would be essentially ineffectual. The trial court could only base its post-remand rulings on the actual circumstances of a weakened attachment to the biological parent and a stronger one to the potential adoptive parents. There could be no room for what might have been.
Jessica K., supra, was also an appeal from the denial of a section 388 petition, mooted by the subsequent termination of parental rights. We wrote that the parent was not without an appellate remedy, and that she "might have filed, prior to the date scheduled for the parental rights termination hearing, a petition for an extraordinary writ as to the summary denial [of the section 388 petition], asserting that appeal was not an adequate remedy." (Id. at p. 1317.) We echo that comment here.
I concur: MOSK, J., Turner, P. J.
I concur in the dismissal. I do not question in anyway the juvenile court’s decisions in this matter.
TURNER, P. J.