Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. Nos. J189225, J189226, J189227
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.
L.S. and Darnell W. appeal from juvenile court orders related to a permanency planning hearing involving L.’s children K.S. and Jalen S. L. contends that the juvenile court erred in permitting the Alameda County Social Services Agency to recommend a permanent plan different than that agreed to in a stipulation approved by the court; she also challenges certain visitation orders. Darnell, a cousin raised with K. and Jalen, contends that the juvenile court erred in denying him participation in the dependency proceedings as a sibling. We conclude that L.’s claims are moot and Darnell’s claims are without merit.
This court consolidated appeals A114462, A117204, and A115271. On December 11, 2007, this court dismissed the appeal in A115271 as to appellant Khalil W., pursuant to his December 4, 2007, voluntary abandonment of the appeal and request for dismissal, which stated that his appeal was moot.
BACKGROUND
L.S. (Mother) is the mother of K.S. (born June 1998), Jalen S. (born January 2001), and Khalil W. (born October 2003). Prior to December 19, 2003, Mother was also the caretaker of her niece Jamilah B. (born July 2001) and her nephews Darnell W. (born July 1993) and Joseph R. (born May 1989). On December 19, 2003, Demetrius W., Mother’s husband and the father of Jalen and Khalil, beat Jamilah to death. The Alameda County Social Services Agency (Agency) removed K. (aged five years), Jalen (aged two years), and Khalil (aged one month), from Mother’s home.
Joseph had no relevant involvement in the proceedings below.
On December 23, 2003, the Agency filed a juvenile dependency petition regarding K., Jalen, and Khalil, pursuant to Welfare and Institutions Code, section 300, subdivision (b) and (g). In addition to the circumstances surrounding Jamilah’s death, the petition alleged that the minors were at risk because the home was filthy and lacked food, police found drugs and drug paraphernalia in the home, Mother admitted using drugs, and Jalen had a cigarette burn on his face. On January 20, 2004, the juvenile court sustained the petitions and declared K., Jalen, and Khalil dependents of the court.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
In May 2005, the Agency filed an 18-month status review report recommending the termination of reunification services and the setting of a section 366.26 hearing for K., Jalen, and Khalil. The parties engaged in settlement discussions and, on October 3, 2005, the parties and the juvenile court signed a stipulation and order. Among other things, the agreement provided that the 18-month review hearing for Khalil would be continued with the intention of eventually returning Khalil to Mother’s custody. A section 366.26 hearing would be set for K. and Jalen with the identified permanent plan of legal guardianship. The juvenile court terminated reunification services and set a section 366.26 hearing with respect to K. and Jalen.
We do not detail the facts of the review hearings and status reports, the extent of Mother’s compliance with the reunification plan, and reports and testimony regarding the children because those details are not important to the narrow issues on appeal.
In February 2006, the juvenile court returned Khalil to Mother’s custody and transferred his dependency case to the Family Maintenance Program.
With regard to K. and Jalen, the Agency recommended termination of Mother’s parental rights with adoption as the permanent plan. The section 366.26 hearing was continued several times and testimony was spread over a number of appearances. In June 2006, the Agency filed a motion in limine seeking to prohibit non-parties, including Darnell and Khalil, from examining witnesses and presenting evidence and argument in the proceedings concerning K. and Jalen. Darnell opposed the Agency’s motion and requested that he be treated as a sibling for purposes of section 388, subdivision (b), or that the court find that he is entitled to participate in the section 366.26 hearing as a “de facto” sibling of K. and Jalen. The juvenile court denied Darnell’s motion and granted the Agency’s motion, ruling that Darnell and Khalil were not parties to K.’s and Jalen’s proceedings. Darnell appealed.
In May and June 2006, the juvenile court modified the visitation orders, reducing visitation to four hours every other week. Mother appealed.
In July 2006, Mother’s counsel objected to the Agency’s recommendation of adoption as the permanent plan, arguing that the Agency was required to file a petition under section 388 in order to set aside the October 2005 stipulation and order. The juvenile court ruled that a section 388 petition was unnecessary because there was never an order establishing a legal guardianship. Mother appealed.
In January and February 2007, the juvenile court rejected the Agency’s recommendation and ordered that the minors be permanently planned in long-term foster care with a possible goal of legal guardianship. The court found exceptions from termination of parental rights applicable because, among other things, the children would benefit from continuing their relationship with Mother and termination of parental rights would substantially interfere with the children’s relationship with their sibling Khalil. The court continued its visitation orders.
Mother and Darnell filed notices of appeal.
In July 2007, Mother’s visitation was increased, and overnight visits were added in September 2007.
We granted two Agency requests for judicial notice of proceedings following the filing of the notices of appeal.
DISCUSSION
I. Mother’s Challenge to the Agency’s Permanent Plan Recommendation
In October 2005, pursuant to a stipulation, the juvenile court ordered that a section 366.26 hearing be set for K.’s and Jalen’s cases, with the identified permanent plan of legal guardianship. Several months later, in its report for the hearing, the Agency recommended termination of parental rights and selection of adoption as the permanent plan. Mother contends that, in light of the stipulation and order, the Agency was required to file a section 388 petition demonstrating changed circumstances in order to recommend adoption as the permanent plan.
At the section 366.26 hearing, the juvenile court rejected the Agency’s recommendation and ordered a permanent plan of long-term foster care with a goal of legal guardianship. At the time of the hearing the children’s foster parents had not committed to becoming legal guardians.
Mother’s claim that the Agency was required to file a section 388 petition demonstrating changed circumstances in order to change its permanent plan recommendation is moot. The juvenile court rejected the Agency’s recommendation and Mother does not challenge the permanent plan ultimately adopted by the juvenile court. “As a general rule, ‘an appeal presenting only abstract or academic questions is subject to dismissal as moot.’ ” (In re Jody R. (1990) 218 Cal.App.3d 1615, 1621-1622.) Mother has made an insufficient showing that the issue raised on appeal is a matter of continuing public interest that is likely to recur, and we decline to exercise our discretion to address the issue despite the mootness of Mother’s claims. (Id. at p. 1622.)
Mother asserts in passing that she was prejudiced by the Agency’s change in its recommendation because she gave up “her due process rights to file a writ and to have a hearing on whether reasonable services had been offered in exchange for a permanent plan of legal guardianship” in the stipulation. However, Mother has made no showing of a reasonable probability of a different result had she not entered into the stipulation. (In re Celine R. (2003) 31 Cal.4th 45, 59-60.)
II. Challenge to Visitation Orders
Mother contends that the juvenile court erred in reducing visitation in May and June 2006 and in maintaining the reduced visitation schedule in January 2007. The reduced visitation schedule provided for daytime visits once every other week. Mother also contends that the visitation order was deficient because it did not make clear the nature of the services that would be provided, in particular whether family therapy or therapeutic visitation was required and with what frequency. Finally, she argues that the Agency was required to file a section 388 petition to request that visitation be reduced.
In July 2007, Mother’s visitation was increased, and overnight visits were added in September 2007. Mother does not challenge the current visitation orders. The Agency also points out that family therapy began in October 2006 and that Mother does not contend that those services are inadequate.
Mother asserts that her claims regarding the visitation orders are not moot despite the current favorable orders. She asserts, “Visitation is an ongoing concern in an ongoing case permanently planned in long term foster care. The agency can request and the court can order that visits return to the same level or incorporate aspects of the earlier visitation order challenged by [L.] in this appeal.” Effectively, Mother concedes that the issue is moot but asks this court to address it because the issue could come up again in some form. We decline to do so. (In re Jody R., supra, 218 Cal.App.3d at pp. 1621-1622.)
III. Darnell W.’s Claims
Darnell W. contends that the juvenile court erred in excluding him from participation in the section 366.26 hearing. He urges that he was entitled to participate as a sibling “by affinity” under section 388, subdivision (b) or as a “de facto” sibling. The juvenile court did not err.
At the outset, we reject the Agency’s contention that Darnell cannot show prejudice from any error because the juvenile court did not terminate Mother’s parental rights. It is true that, because the juvenile court relied on the sibling exception (vis-à-vis Khalil) in declining to terminate parental rights, Darnell has not shown a reasonable probability of a more favorable outcome had he been allowed to participate in the section 366.26 hearing. (In re Celine R., supra, 31 Cal.4th at pp. 59-60.) However, the juvenile court’s order prohibits him from participating as a party in future hearings, so any prejudice is ongoing.
Section 388, subdivision (b) permits persons to petition the juvenile court to assert a sibling relationship with a child in dependency proceedings and to “request visitation with the dependent child, placement with or near the dependent child, or consideration when determining or implementing a case plan or permanent plan for the dependent child or make any other request for an order which may be shown to be in the best interest of the dependent child.” To qualify as a sibling under the statute, the person must assert a sibling relationship “by blood, adoption, or affinity through a common legal or biological parent.” (Ibid.; see also In re Hector A. (2005) 125 Cal.App.4th 783, 789, fn. 2.) Darnell W. is not a sibling to K. or Jalen by blood or adoption. Moreover, he effectively concedes he is not a sibling by affinity in characterizing himself as “a legal orphan residing with [L.] S. in foster placement.” That is, he does not claim that Mother is his legal parent. The Agency makes this point in its respondent’s brief, and Darnell’s reply brief is silent on the issue. Although there may be good arguments in favor of treating persons such as Darnell as siblings, only the Legislature has authority to extend the definition of sibling in section 388, subdivision (b). (Kobzoff v. Los Angeles County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851, 863.) Darnell’s claim to sibling status under section 388, subdivision (b) fails under the plain language of the statute.
In the alternative, Darnell argues that the juvenile court should have granted his request for “de facto sibling” status. As Darnell acknowledges, a “de facto sibling” has never been recognized in California law. The “de facto parent” concept is, on the other hand, well established. A de facto parent is “a person who has been found by the court to have assumed, on a day-to-day basis, the role of parent, fulfilling both the child’s physical and psychological needs for care and affection, and who has assumed that role for a substantial period.” (Cal. Rules of Court, rule 5.502(10); see also In re B. G. (1974) 11 Cal.3d 679, 692, fn. 18.) The court may, upon a sufficient showing, “recognize the child’s present or previous custodians as de facto parents and grant standing to participate as parties in disposition hearings and any hearing thereafter at which the status of the dependent child is at issue. The de facto parent may: [¶] (1) Be present at the hearing; [¶] (2) Be represented by retained counsel or, at the discretion of the court, by appointed counsel; and [¶] (3) Present evidence.” (Cal. Rules of Court, rule 5.534(e).) The purpose of recognizing de facto parent status is to “ensure that all legitimate views, evidence, and interests are considered in dispositional proceedings involving a dependent minor.” (In re Kieshia E. (1993) 6 Cal.4th 68, 76.)
Darnell urges that he be permitted to participate in K.’s and Jalen’s dependency proceedings as a “de facto sibling” because he has assumed the role of a sibling on a day-to-day basis for a substantial period of time and because he possesses unique and relevant information regarding the children’s best interests. We need not decide whether the reasoning underlying the recognition of de facto parents (see In re B. G., supra, 11 Cal.3d at pp. 692-693; In re Kieshia E., supra, 6 Cal.4th at pp. 75-76) should be extended to justify the recognition of de facto siblings. That is because Darnell’s argument suffers from a fatal flaw; he has not shown that, were he treated as a sibling, he would have a right to participate in the dependency proceedings as a party.
Darnell cites no authority for the proposition that a sibling is entitled to participate as a party in another sibling’s dependency proceeding. That issue was considered in In re Hector A., supra, 125 Cal.App.4th 783, where the juvenile court denied a request by two siblings to be heard in their other siblings’ section 366.26 hearing. The siblings, like Darnell in this case, sought to assert the applicability of the sibling relationship exception to termination of parental rights. (Id. at p. 788.) In re Hector A. stated that, unlike parents, siblings do not automatically have standing to assert applicability of the exception. (Id. at p. 791.) Instead, a sibling seeking to appear at a section 366.26 hearing “must obtain an order pursuant to section 388[,] [subdivision (b),] to become entitled to participate in the section 366.26 hearing.” (Id. at p. 793.) The court rejected the further suggestion that the siblings “were entitled to participate [in the section 366.26 hearing] simply because they are siblings.” (Id. at p. 796; see also Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2007 ed.) Dependency, § 2.171[5][a], p. 2-403 [“Even dependent siblings are not parties to another sibling’s dependency case . . . . Thus, there is no automatic right for siblings to participate” in section 366.26 hearings].)
The court also rejected an argument that the siblings were entitled to participate under statutory provisions requiring that certain siblings be notified of various stages of the dependency proceedings. (In re Hector A., at p. 796.) The notice provisions did not dispense with the need to gain permission to participate under section 388, subdivision (b). (Ibid.)
Accordingly, even if we were to declare Darnell a “de facto sibling,” it would not provide him the relief he seeks; a sibling’s entitlement to participate in another sibling’s dependency proceedings turns on satisfying the requirements of section 388, subdivision (b), and we have already concluded that Darnell failed to satisfy those requirements. The juvenile court did not err in denying Darnell’s request for party status.
Disposition
The juvenile court’s orders are affirmed.
We concur. SIMONS, ACTING P. J., NEEDHAM, J.