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In re Kendall R.

California Court of Appeals, First District, Second Division
Apr 21, 2009
No. A122322 (Cal. Ct. App. Apr. 21, 2009)

Opinion


In re KENDALL R., a Person Coming Under the Juvenile Court Law. MENDOCINO COUNTY HEALTH & HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. L.R., Defendant and Appellant. A122322 California Court of Appeal, First District, Second Division April 21, 2009

NOT TO BE PUBLISHED

Mendocino County Super. Ct. No. SCUK-JVSQ-04-14221-02

Richman, J.

L.R. appeals from an order of the juvenile court terminating her status as de facto parent to dependent child Kendall R. (Kendall). The order issued on the motion of T.R., who was also a de facto parent, as well as Kendall’s maternal aunt and guardian. L.R. contends that: (1) T.R. lacked standing to bring the motion; (2) no change of circumstances supported the order; (3) the order did not serve the child’s best interests; and (4) her own “outspoken concern” below about T.R.’s ability to care for him did not support the order. Having taken judicial notice of a subsequent order dismissing the dependency and terminating the court’s jurisdiction, we dismiss the appeal as moot.

Background

A terse overview of the record suffices. An original petition filed in December 2004 by the Mendocino County Health & Human Services Agency (HHS) (then known as Mendocino County Department of Social Services) alleged jurisdiction over Kendall (21 months old) and a half-sister and half-brother (four and 11 years old). The mother of all three had left them months earlier in the care of Randall G., the father of the eldest two, and the whereabouts of the mother and Kendall’s father were at first unknown. The petition alleged neglect and physical and emotional abuse by Randall G.

The children were detained and ultimately kept in foster care upon sustained allegations of serious physical harm, failure to protect, and serious emotional damage. (Welf. & Inst. Code, § 300, subds. (a), (b) and (c)). The mother was located, but reunification ultimately failed for all parents, and their services were terminated. Both parents of the older children were enrolled members of the Yurok Tribe, and the tribe gave input on their behalf through the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). Kendall, having different lineage, was ultimately accepted for enrollment in the Wiyot Tribe, which gave input on his behalf.

All unspecified section references are to the Welfare and Institutions Code.

Paternity testing excluded Randall G. as Kendall’s biological father, but this left two other potential legal fathers for Kendall. One was presumed, evidently from being named on Kendall’s birth certificate. Another claimed to be the biological father. All we need note further is that neither man gained custody or appeals.

Legal guardianship became the permanent plan for the children, and guardianship of Kendall and his half-sister was conferred on T.R. in September 2007. T.R. was also granted de facto parent status of all three children in January 2008. The case began and ended in Mendocino County, with a short-lived transfer out to Sonoma County in 2008 during a period of uncertainty about where T.R. would reside.

Controversy about de facto parent status for L.R. arises from the circumstance that her son, Randall G., lived with the children in her home for the months preceding their removal in December 2004. She and her son moved jointly in November 2005 for de facto parent status. The court denied the motion as to Randall G., citing his own neglect and abuse as causes for the dependency. Over the objection of counsel for Kendall, who pointed out that L.R. had not protected the children against Randall G., the court granted the motion as to L.R. L.R.’s special status was granted only as to Kendall. She later had visits but, in large part because she continued to have her son live with her, never again had day-to-day care of the children. The three children had been placed in foster care.

Kendall and his half-sister were placed with T.R. in early July 2007, and the third child was placed with her in August. T.R. became legal guardian for the younger two in September of 2007, and her grant of de facto parent status for all three in January 2008 left Kendall with two de facto parents—T.R. and L.R.

In late July 2008, T.R. filed a “Motion to Terminate De Facto Parent Status,” stressing L.R.’s lack of day-to-day care for the past three and a half years and monthly visits since then. L.R. opposed the motion, raising some of the issues she raises on appeal. Kendall’s older half-sister had been having visits with L.R., but was uncomfortable with them and told her therapist that she wanted them stopped.

The motion was heard and granted on August 6, 2008. Kendall’s counsel supported terminating L.R.’s status, reporting that the minimal contact with her had “not had a large impact” and that Kendall did not mention her on his own. HHS supported that view, and a representative of the Yurok Tribe saw “no reason for the status to continue,” but did support continued visits. A letter from a Wiyot Tribe representative supported HHS’s report recommendations as to Kendall, which had included terminating L.R.’s status.

L.R. filed notice of appeal on August 8, but we construe her premature notice of appeal as referring to the formal written order filed subsequently, on August 19, 2008.

In a late August report, HHS requested dismissal of the dependency and termination of jurisdiction. The children had now lived with T.R. as their guardian for more than a year, which qualified T.R. to receive “Kin Gap funding should the case be dismissed.” “[N]umerous complaints” by L.R. about T.R. had been investigated to the report author’s satisfaction, and T.R. had been evaluated and cleared by two agency’s for possible substance abuse. The court formally dismissed the dependency and terminated jurisdiction by an order filed September 10, 2008.

Discussion

“ ‘[A]n action that originally was based on a justiciable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events. A reversal in such a case would be without practical effect, and the appeal will therefore be dismissed.’ [Citation.] The question of mootness in a dependency case should be decided on a case-by-case basis.... [Citations.]” (In re Dani R. (2001) 89 Cal.App.4th 402, 404-405.)

All of L.R.’s contentions are directed at restoring her de facto parent status and overturning the order that terminated it. Without question, dismissal of the dependency, with termination of jurisdiction, leaves us unable to render any effective relief. Were we to find reversible error, we would have no pending action to direct remand, and we could not compel the juvenile court to reinstate the case. In fact, dismissal of the dependency itself terminated L.R.’s de facto parent status (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1513; In re Patricia L. (1992) 9 Cal.App.4th 61, 67), irrespective of the prior order.

An exception is that, despite dismissal, “ the case ‘is not moot if the purported error is of such magnitude as to infect the outcome of [subsequent proceedings].... [Citation.]” (In re Joshua C. (1994) 24 Cal.App.4th 1544, 1547.) L.R. urges: “As it stands now, the erroneous order terminating [her] de facto parent status prejudices her by limiting her involvement in dependency proceedings that may arise in the future.” We do not see how that is likely. She cites no authority for her implicit assumption that the court in new proceedings would automatically, or even presumably, deny her de facto parent status just because that status had been terminated a month before the prior action’s dismissal. Rather, it appears that an application for such status in a later action would necessarily depend on the circumstances then existing. (Cal. Rules of Court, rule 5.502 (10); In re Brandon M. (1997) 54 Cal.App.4th 1387, 1393-1394.) The termination of her status here, moreover, did not involve any findings of misconduct or impropriety that might adversely affect a future application.

L.R. also argues that she was prejudiced in that a court, upon dismissing a dependency, has discretion in an unusual case to grant continuing visitation to a de facto parent. (E.g., In re Robin N. (1992) 7 Cal.App.4th 1140, 1145-1146.) Given the record before us, however, we do not see this as an unusual case clearly meriting such an order. The case she cites advised: “Although the particular facts of this case support the visitation order..., courts must be cautious in making visitation orders which require a minor to be shuffled about among several caretakers. The value of regular visitation with such people should be carefully weighed against the potential unsettling effects of frequent changes in living arrangements.” (Id. at p. 1147.) Moreover, we observe that the recommendations of HHS in this case included four hours of unsupervised visitation for L.R. each quarter. We have no reporter’s transcript of any hearing on the dismissal request, leaving it is unclear whether L.R. was granted such visitation, but if it was denied to her, we are not advised that she took any appeal from the order, which would be a far more direct and potentially complete way of raising this issue.

This leaves only L.R.’s argument that, despite mootness, we should reach the question, in our discretion, in order to resolve a claimed issue of first impression—namely, whether a guardian/de facto parent such as T.R. had standing to seek termination of another de facto parent’s status or, as L.R. contends, this was a function reserved for HHS. She offers this as an issue of continuing public interest that is likely to recur (citing In re Adrianna P. (2008) 166 Cal.App.4th 44, 53), implying that we should issue a published opinion on the subject.

We are not persuaded to exercise our discretion to reach the issue. First, L.R. never even raised this issue below. Second, it does not seem like an issue that is likely to recur with any significant frequency, and it would be extraordinary if it ever arose again as to L.R.. Third, and without actually deciding the issue, it would seem odd if such a motion could not be made by a party other than the agency in a given case. L.R. cites two cases that stated it was an agency’s burden on such a motion to show a change of circumstances supporting the change (In re Brittany K., supra, 127 Cal.App.4th at p 1513; In re Patricia L., supra, 9 Cal.App.4th at p. 67), but each case happened to be one where the agency sought the change. There was no issue in either about whether another party had standing. “Language used in any opinion is of course to be understood in the light of the facts and the issue then before the court, and an opinion is not authority for a proposition not therein considered. [Citations.]” (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.)

Disposition

The appeal is dismissed.

We concur: Kline, P.J., Haerle, J.


Summaries of

In re Kendall R.

California Court of Appeals, First District, Second Division
Apr 21, 2009
No. A122322 (Cal. Ct. App. Apr. 21, 2009)
Case details for

In re Kendall R.

Case Details

Full title:In re KENDALL R., a Person Coming Under the Juvenile Court Law. v. L.R.…

Court:California Court of Appeals, First District, Second Division

Date published: Apr 21, 2009

Citations

No. A122322 (Cal. Ct. App. Apr. 21, 2009)