Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. CK68162 Sherri Sobel, Juvenile Court Referee.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Fred Klink, Senior Deputy County Counsel, for Petitioner and Respondent.
ZELON, J.
Appellant Jorge E. (“Father”) appeals from an order of the Los Angeles County Juvenile Court terminating family reunification services for Father at a 12-month review hearing held pursuant to Welfare and Institutions Code section 366.21, subdivision (f). Father contends that the juvenile court erred in terminating his reunification services because Respondent Los Angeles County Department of Children and Family Services (“DCFS”) never provided any services to him. The DCFS concedes that the court’s order terminating reunification services was erroneous. It asserts, however, that Father’s appeal is moot because he was deported to Mexico four months after reunification services were ordered, or if not moot, that any error was harmless because there was no reasonable probability that Father could have reunified with his children prior to his deportation. We conclude that Father’s appeal is not moot and that the juvenile court’s order terminating reunification services must be reversed because no such services were ever provided to Father.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Father and Irene H. (“Mother”) are the parents of minors W.E., a girl, and J.E., a boy. Mother also has three other children from a prior relationship. On May 16, 2007, the DCFS filed a section 300 petition on behalf of all five children on the basis that Mother physically abused the half-siblings of W.E. and J.E., and that Father had a history of physically assaulting Mother in the children’s presence. In its detention report, the DCFS stated that the children were residing with Mother prior to their removal and that Father was serving a 16-month prison term in North Kern State Prison in Delano, California. At the time of their detention, W.E. was one-year-old and J.E. was eight months.
Neither Mother nor the three half-siblings are parties in this appeal.
On May 16, 2007, the juvenile court ordered that the children be temporarily detained in foster care. The court found Father, who was not present for the detention hearing, to be the presumed father of W.E. and J.E., and appointed counsel to represent him. The court ordered family reunification services for both parents, consisting of parenting and anger management counseling for Mother and one weekly telephone call to the DCFS for Father to inquire about the status of his children.
On June 15, 2007, the court held a pretrial resolution conference. Prior to the conference, an order for Father’s appearance was issued to the North Kern State Prison, but was returned with a notation that Father had been transferred to the Mesa Verde Correctional Facility and was “out to court” in Riverside County. Father’s appointed counsel appeared at the conference on his behalf. The court ordered that W.E. and J.E. be detained with the paternal grandmother, and set an adjudication hearing for July 13, 2007. On June 29, 2007, a new order for Father’s appearance at the adjudication hearing was issued to the Mesa Verde Correctional Facility. However, that order also was returned with a notation that Father was “out to court” in Riverside County.
On July 13, 2007, the court held the adjudication hearing. Father did not appear, but was represented by his attorney. Mother appeared and agreed to submit the matter on the DCFS’s reports. The court sustained the petition under section 300, subdivisions (a), (b), and (j), finding that Mother had inappropriately disciplined W.E. and the three half-siblings by striking them with her hands and that Father had committed acts of domestic violence against Mother in the presence of the children. Proceeding to disposition, the court ordered that the children be placed in the custody of the DCFS for suitable placement and that reunification services be provided to both Mother and Father. The DCFS was ordered to provide Mother with monitored visitation with the children, anger management counseling, and 52-week domestic violence counseling for victims. The DCFS was ordered to provide Father with monitored telephone contact with his children, parenting and anger management counseling, and 52 week domestic violence counseling for perpetrators.
W.E. and J.E. remained in the custody of the paternal grandmother, while their three half-siblings were placed in foster care. In its January 14, 2008 status review report, the DCFS advised the court that the paternal grandmother had died, and that W.E. and J.E. were now residing with a paternal aunt. The DCFS also reported that Mother had maintained regular visitation with the children and made progress with her reunification services, but recently had stopped attending an anger management program. The DCFS recommended that reunification services be continued for both Mother and Father, but did not state what services had been provided to Father or whether he was complying with his case plan.
On January 14, 2008, the court held a six-month review hearing pursuant to section 366.21, subdivision (e). Father’s attorney appeared on his behalf. The court found that the DCFS’s status review report was inadequate because it failed to include any information about Father or his progress with the reunification services. The court continued the review hearing to February 27, 2008, so that the DCFS could submit an updated status report. In its February 27, 2008 report, the DCFS stated that Father was no longer incarcerated in state prison, and that the paternal aunt reported that Father had been deported to Guatemala and was afraid of returning to the United States. The DCFS did not state whether any reunification services had been provided to Father prior to his deportation.
On February 27, 2008, the court held the continued review hearing. Father’s attorney again appeared on his behalf. The court noted that the parties were now in agreement that Father apparently was in Mexico. Father’s attorney argued that reunification services for Father should not be terminated, however, because the DCFS had not submitted a due diligence report. The court agreed and ordered that Father’s reunification services be continued for six months while the DCFS conducted a due diligence search. The court also ordered that Mother be provided with an additional six months of reunification services because she had made some progress with her case plan. A 12-month permanency review hearing was set for July 14, 2008.
In its July 14, 2008 status review report, the DCFS stated that it had conducted a due diligence search of Father’s whereabouts and found that Father was in the custody of the Immigration and Naturalization Service (“INS”) pending deportation. The DCFS reported that Mother was compliant with her case plan and was committed to reunifying with the children. In particular, Mother had completed parenting and anger management programs, was actively participating in domestic violence and nutrition counseling, and was maintaining regular monitored visitation with the children. All five children were currently residing with the maternal grandparents. The DCFS recommended that Mother’s reunification services be continued while she completed her remaining counseling programs and that Father’s reunification services be terminated.
On July 14, 2008, the court held a 12-month review hearing pursuant to section 366.21, subdivision (f). Father did not appear. At the outset of the hearing, the court stated that another attorney, Ms. Baca, was standing in for Father’s appointed counsel, and although Ms. Baca had not “signed out,” the court could not find her. After noting on the record that notice had been provided as required by law, the court proceeded with the hearing. The court found that the DCFS had provided reasonable reunification services to Mother and that Mother was compliant with her case plan. The court ordered that reunification services for Mother be continued for an additional six months and include unmonitored day visits with the children. With respect to Father, the court found that the DCFS had shown due diligence in determining Father’s whereabouts, and that based on the DCFS’s report, Father had been deported. The court also stated that it could not make a proper finding as to Father because no reunification services had been provided to him. The court then ordered that reunification services for Father be terminated. At the conclusion of the hearing, the court set an 18-month permanency hearing for November 10, 2008.
On September 11, 2008, Father filed this appeal of the juvenile court’s order terminating his reunification services. During the pendency of Father’s appeal, DFCS moved for dismissal, arguing that subsequent events rendered the appeal moot. On February 4, 2009, we granted the DCFS’s request to take judicial notice of three documents that were filed in the juvenile court following Father’s appeal. The documents consisted of (1) an October 10, 2008 declaration of due diligence from the DCFS, (2) a November 10, 2008 minute order, and (3) a December 9, 2008 minute order.
In its declaration of due diligence, the DCFS reported that it had learned that Father was paroled and placed in the custody of the INS on October 29, 2007, and that Father was deported 10 days later on November 8, 2007. The November 10, 2008 minute order reflected that the court held an 18-month permanency review hearing on that date. At that hearing, the court ordered that the children be placed in the home of Mother under DCFS supervision, that the DCFS provide Mother and the children with family maintenance services, and that the matter be continued to December 9, 2008, for a transfer hearing. The December 9, 2008 minute order reflected that the case was in fact transferred to the Riverside County Juvenile Court on that date.
DISCUSSION
I. Mootness
The DCFS argues that, because Father was deported to Mexico four months after reunification services were first ordered, no effective relief can be granted to Father and his appeal is therefore moot. As a general rule, an appellate court only decides actual controversies. (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1316; In re Joel H. (1993) 19 Cal.App.4th 1185, 1193.) “‘[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’” because “‘[a] reversal in such a case would be without practical effect.’” (In re Dani R. (2001) 89 Cal.App.4th 402, 404.) “‘“It necessarily follows that when... an event occurs which renders it impossible for this court, if it should decide the case in favor of [appellant], to grant... any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.”’ [Citation.]” (Giles v. Horn (2002) 100 Cal.App.4th 206, 227.) The question of mootness must be decided on a case-by-case basis. (In re Hirenia C. (1993) 18 Cal.App.4th 504, 518; In re Kristin B. (1986) 187 Cal.App.3d 596, 605.)
In juvenile dependency cases, one well-established exception to the mootness doctrine is that “[a]n issue is not moot if the purported error infects the outcome of subsequent proceedings.” (In re Dylan T. (1998) 65 Cal.App.4th 765, 769; see also In re A.R. (2009) 170 Cal.App.4th 733, 740; In re Joshua C. (1994) 24 Cal.App.4th 1544, 1548.) In Dylan T., for instance, the appellate court declined to dismiss as moot a formerly incarcerated parent’s appeal of an order denying visitation during her period of incarceration because the absence of visitation could prejudice the parent’s ability to reunify with her child in the future. (In re Dylan T., supra, at pp. 769-770.) Likewise, in Joshua C., the appellate court concluded that the subsequent termination of a dependency action did not preclude review of the juvenile court’s jurisdictional findings because the restrictive custody and visitation orders issued at termination would continue to adversely impact the parent. (In re Joshua C., supra, at p. 1548.) The same reasoning applies here.
The alleged error in terminating reunification services for Father is likely to have an adverse effect on his ability to obtain custody of, or visitation with, his children in the future. A parent’s entitlement to future reunification services depends, in part, on the period of reasonable reunification services already received, on the parent’s progress with those services, and on whether services ever were terminating in a prior proceeding. (§§ 361.5, 366.21, & 366.22.) Accordingly, an order terminating reunification services for Father could be used as a basis for denying him reunification services in any subsequent dependency proceedings involving W.E. and J.E., or in any separate dependency proceedings involving other children that Father may have. (§ 361.5, subd. (b).)
The DCSF contends that the termination of reunification services for Father can no longer detrimentally impact him because he has been deported to Mexico and cannot legally return to the United States to reunify with his children. However, Father’s current residency status could change in the future. If Father were to return to the United States at a later date and attempt to reunify with his children, the prior adverse ruling in this case could impact his opportunities for such reunification, thus “infect[ing] the outcome of subsequent proceedings.” (In re Dylan T., supra, 65 Cal.App.4th at p. 769.) Because the order terminating reunification services for Father could have adverse consequences for him in the future, Father’s residency status does not render his appeal moot.
II. Termination Of Reunification Services
Turning to the merits of Father’s appeal, Father asserts that the juvenile court erred in terminating his reunification services because the DCFS never provided any such court-ordered services to him. The DCFS concedes that the termination of Father’s reunifications services was erroneous, but claims that the error was harmless because there was no reasonable probability that Father could have reunified with his children in the four months prior to his deportation.
In juvenile dependency proceedings, the court must order “reasonable services” to reunify an incarcerated parent with his or her children unless it determines that those services would be detrimental to the children. (§ 361.5, subd. (e).) The DCFS, in turn, is required to make a good faith effort to provide reasonable services responsive to the unique needs of each family, regardless of the difficulties in doing so or the prospects of success. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1011.) The mere fact that a parent is incarcerated is not sufficient to support a conclusion that reunification is impossible. (In re Monica C. (1994) 31 Cal.App.4th 296, 308; In re Brittany S. (1993) 17 Cal.App.4th 1399, 1402.) Moreover, it is the duty of the supervising agency to “preliminarily identify services available to an incarcerated parent. [Citation.] It cannot delegate to an incarcerated parent the responsibility for identifying such services. [Citation.]” (Mark N. v. Superior Court, supra, at p. 1012.) The burden is also on the DCFS to show that the reunification services provided to a parent were reasonable. (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) The adequacy of reunification plans and the reasonableness of the agency’s efforts are judged according to the circumstances of each case. (Mark N. v. Superior Court, supra, at p. 1011.)
Here, the parties do not dispute that the DCFS failed to provide any reunification services to Father prior to his deportation. At the July 13, 2007 disposition hearing, the juvenile court ordered the DCFS to offer Father monitored telephone contact with his children, parenting and anger management counseling, and 52 weeks of domestic violence counseling for perpetrators. The DCFS was aware that Father was incarcerated at the Mesa Verde Correctional Facility at the time of the disposition hearing, but made no attempt to contact Father about his case plan or to identify what services were available to him at that facility. As a result, the DCFS’s status report for the six-month review hearing held on January 14, 2008, was silent with respect to Father’s progress with his services. After the court ordered the DCFS to provide an updated status report on Father, the DCFS learned that Father had been paroled and placed in INS custody pending deportation. Solely on that basis, the DCFS recommended that Father’s reunification services be terminated at the 12-month review hearing. However, given that the DCFS made no effort to offer Father any court-ordered services while he was in state custody, it could not meet its burden of establishing that Father’s reunification services were reasonable.
At the 12-month review hearing on July 14, 2008, the juvenile court noted that it could not make a proper finding regarding the reasonableness of Father’s reunification services because no such services had been provided to him. Yet despite finding that the DCFS had failed to provide Father with any of the court-mandated services, the court ordered that Father’s reunification services be terminated. As the DCFS concedes, the court’s order was erroneous. Where the juvenile court finds at the 12-month review hearing that the return of the child to the parent would create a substantial risk of detriment and that reasonable reunification services have not been provided, it is required to continue the matter for an 18-month permanency review hearing and to extend the time period for reunification services. (See § 361.5, subd. (a)(2) [the court shall extend reunification services to a maximum time period not to exceed 18 months “if it finds... that reasonable services have not been provided to the parent or legal guardian”]; § 366.21, subd. (g)(1) [the court shall continue the case to an 18-month review hearing “if it finds... that reasonable services have not been provided to the parent or legal guardian”].) Although the juvenile court in this case set an 18-month review hearing, it extended reunification services solely for Mother. The court therefore erred in terminating reunification services for Father. We cannot conclude that such error was harmless because, as discussed, it could adversely affect Father’s opportunities for reunification with his children in the future.
DISPOSITION
The order of the juvenile court terminating reunification services for Father is reversed.
We concur: PERLUSS, P. J. WOODS, J.