Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge. Super. Ct. No. 93123 & 93124
Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Minors and Appellants.
B. C. Barmann, Sr., County Counsel, and Judith M. Denny, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
DAWSON, J.
Marcus and Tommy R. (the boys) challenged a juvenile court order sustaining a Welfare and Institutions Code section 387 petition, which sought removal of the boys from their mother’s care. Subsequently, Tommy R. abandoned his appeal, and the juvenile court dismissed jurisdiction as to Marcus R., who is now of legal age. We dismiss the appeal as moot.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
PROCEDURAL AND FACTUAL SUMMARY
Rosa R. (mother), the boys’ mother, lost custody of her first three children in 1989. Mother’s subsequent children, Marcus, Tommy, and Justine, (now ages 18, 15, and 13), first came to the attention of Kern County Department of Human Services (Department) in April of 2000, when a referral was received alleging that mother and father were spending all of their money and food stamps, which they sold, on drugs, and the children were asking neighbors for food. The allegations of the referral were substantiated, and the family agreed to voluntary family maintenance services.
In January of 2001, the children were removed from their parents’ custody due to mother’s abuse of controlled substances and her physical abuse of Justine. At the time, the children’s father was in prison; he is since deceased. Family reunification services were offered.
By the time of the six-month review hearing in October of 2001, the court found mother had made substantial progress, and the children were placed back in the home and family maintenance services ordered. But in May of 2002, after mother tested positive for drugs on two occasions, the children were again removed from mother’s custody. In July of 2002, the court terminated family maintenance services and ordered long-term foster care as the permanent plan for the children.
Mother failed to test in October of 2002 and tested positive the following month. She provided a clean drug test in June of 2003, but, as of October of 2003, had not tested again. Mother moved to Louisiana in September of 2003 and stopped regular visitations.
The three children remained with a relative until December of 2003, when the boys were moved to a nonrelated family friend’s home at the request of the relative caretaker. Justine remained with the relative.
At the January 2004 review hearing, mother, who had travelled from Arizona where she was currently living, expressed a desire to have her children returned. At the July 2004 review hearing, evidence was submitted that mother had negative drug tests beginning in December of 2003, but she failed to test in May of 2004. She had completed a substance abuse counseling program, and she had visited the children once in January of 2004.
The social study prepared in anticipation of the January 2005 review hearing stated that mother had continued to test negative for drugs throughout 2004. The boys had expressed a desire that their caretakers become their guardians. At the section 366.26 hearing in May of 2005, the caretakers were appointed legal guardians for the boys and the dependency proceedings as to them were dismissed.
In January of 2006, Justine was returned to her mother, and mother returned to California soon after. Dependency as to Justine was subsequently dismissed. Mother resumed contact with the boys.
In August of 2006, the boys filed a petition under section 388 asking that their guardianship be set aside and that they be placed with their mother. By this time, mother had completed all of her case plan, had appropriate housing, had had Justine for over six months, and wished to have all three of her children together in her home.
In September of 2006, the court ordered dependency jurisdiction reinstated for the boys and they were placed back with their mother. Mother was ordered to submit to random monthly drug tests.
Mother tested negative for drugs until February 8, 2007, when she tested positive for methamphetamine and amphetamine and she was ordered into drug abuse counseling. Mother failed to test on February 15, and March 6, 2007, and, as of the end of March of 2007, she had not yet enrolled in drug abuse counseling. The social study report stated that the monthly visits to the home found the house clean, the kitchen sufficiently stocked, and all utilities in working order. The boys were doing well in school, and they were current in their immunizations and medical and dental checkups.
At the subsequent six-month family maintenance review, the court ordered mother to participate in substance abuse counseling and to continue to submit to random drug tests. Family maintenance services were continued.
In the middle of April 2007, mother tested positive for heroin. A section 387 petition was filed and alleged that the previous disposition had not been effective in protecting the boys and that they were at risk of suffering physical harm or illness due to mother’s substance abuse.
At the May 15, 2007, jurisdictional/dispositional hearing, counsel for the boys argued against the detention, stating that the boys had only two weeks left in the school year. Mother’s counsel also argued against detention, noting that the children were older, that mother had been taking them to school, and that there was no indication of any danger to the boys. The court ordered the boys detained, and a contested hearing set.
There is nothing in the record indicating that Justine was also detained.
At the subsequent hearing on July 5, 2007, the Department recommended that the boys be placed in long-term foster care and mother be denied any further reunification services due to her continued drug use and the fact that she had exhausted her reunification services time allotment. Counsel for the boys argued that the best interests of the boys were served by placing them with their mother, as the Department had failed to show risk to the boys.
The court disagreed and sustained the section 387 petition. The court ordered the boys removed from their mother, denied her any further reunification services, and ordered long-term foster care as the permanent plan.
Marcus and Tommy appealed the July 5, 2007, jurisdictional findings and the dispositional orders. On January 8, 2008, during the pendency of this appeal, Tommy filed a “Notice of Abandonment of Appeal,” and this court ordered the appeal dismissed as to him on January 10, 2008. While this appeal was pending, Marcus turned 18 years of age, and on January 24, 2008, the juvenile court dismissed jurisdiction as to him.
“Although a case may originally present an existing issue …, if before decision is reached, it has, through acts of the parties or other cause, lost that existent character, it is rendered moot and may not be considered. [Citations.]” (National Assn. of Wine Bottlers v. Paul (1969) 268 Cal.App.2d 741, 746.) Thus, “[w]hen it appears that a controversy … from which an appeal has been taken no longer exists, it is the duty of the court to dismiss the appeal.” (Bollotin v. Workman Service Co. (1954) 128 Cal.App.2d 339, 342.) Therefore, we dismiss the appeal as moot.
WE CONCUR: HARRIS, Acting P.J., LEVY, J.