Opinion
B302842
06-25-2020
Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 18CCJP06418A) APPEAL from an order of the Superior Court of Los Angeles County. Brett Bianco, Judge. Dismissed. Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent.
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K.C.'s daughter, Raelynn R., is a dependent of the juvenile court. Before the court had selected a permanent plan for Raelynn, K.C. filed a petition under Welfare and Institutions Code section 388 seeking to establish a legal guardianship over the child. The juvenile court denied the petition without a hearing, after which it set a date for a selection and implementation hearing under section 366.26. K.C. appealed, arguing the juvenile court was required to hold a hearing to consider the petition's merits. We dismiss the appeal as moot.
All future section references are to the Welfare and Institutions Code.
FACTUAL AND PR OCEDURAL BACKGROUND
K.C. (Mother), who has a history of substance abuse and mental health issues, gave birth to Raelynn while incarcerated. Raelynn's father (Father), who also has a history of substance abuse, was homeless at the time and could not be located. Mother consented to the Los Angeles County Department of Children and Family Services (DCFS) detaining Raelynn. At Mother's request, DCFS placed the child with the paternal grandmother (Paternal Grandmother).
DCFS subsequently filed a petition alleging Raelynn is a person described by section 300, subdivisions (b)(1) and (j). The juvenile court sustained the petition, removed Raelynn from her parents' custody, ordered reunification services, and ordered the child be suitably placed with Paternal Grandmother.
The allegations in the petition are not relevant to the issues on appeal, so we do not discuss them.
At the six-month review hearing, the court found Mother and Father had not made sufficient progress towards addressing the causes necessitating placement. The court terminated reunification services and set a section 366.26 selection and implementation hearing.
On the day of the selection and implementation hearing, Mother filed a section 388 petition seeking to modify the orders made at the six-month review hearing. She asserted the changed circumstances warranting the modifications were that she had completed a residential drug program, enrolled in an aftercare program, and continued to have successful visits with Raelynn. Mother requested the court make three orders: (1) return Raelynn to her care; (2) grant continued reunifications services; "and/or" (3) order the permanent plan for Raelynn be legal guardianship rather than adoption.
At the onset of the selection and implementation hearing, the juvenile court announced it had denied Mother's petition without a hearing. The court explained the petition did not constitute a prima facie showing of new evidence or a change of circumstances, nor would sustaining it be in the child's best interest. The court noted that Mother could file another petition if circumstances changed in the future.
After the court denied Mother's petition, DCFS asked for a continuance of the selection and implementation hearing, to which Mother submitted. The court granted DCFS's request and continued the hearing for three months.
Mother timely appealed the denial of her section 388 petition.
DISCUSSION
Mother's sole contention on appeal is the juvenile court erred in refusing to hold a hearing to consider her request that Raelynn's permanent plan be a legal guardianship. DCFS responds that Mother's appeal is moot. We agree with DCFS.
Mother states she is not challenging the denial of her other requests made in the section 388 petition. --------
"An appeal becomes moot when, through no fault of the respondent, the occurrence of an event renders it impossible for the appellate court to grant the appellant effective relief." (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404.) "We decide on a case-by-case basis whether subsequent events in a juvenile dependency matter make a case moot and whether our decision would affect the outcome in a subsequent proceeding. [Citations.]" (Ibid.)
Here, Mother asks us to direct the juvenile court to conduct a full hearing to consider whether Raelynn's permanent plan should be a legal guardianship with Paternal Grandmother. The juvenile court, however, has already set such a hearing. After denying Mother's section 388 petition, the court set a date for the section 366.26 selection and implementation hearing. At that hearing, the court must select a permanent plan for Raelynn, which requires it consider "[a]ppoint[ing] a relative or relatives with whom the child is currently residing as legal guardian or guardians for the child, and order that letters of guardianship issue." (§ 366.26, subd. (b)(3).) We can conceive of no reason, and Mother provides none, why the selection and implementation hearing will not adequately address the issues Mother raises on appeal and in her section 388 petition. In fact, because section 366.26 provides the "exclusive procedures for selecting a permanency plan for a dependent child" (In re Maria Q. (2018) 28 Cal.App.5th 577, 584, citing § 366.26, subd. (a)), the juvenile court may grant Mother's request for a permanent plan of legal guardianship only at a section 366.26 selection and implementation hearing. Given the juvenile court has already set such a hearing, a reversal on appeal would be an idle act, offering no meaningful relief. As a result, Mother's appeal is moot and must be dismissed.
Even if the appeal were not moot, we would affirm the juvenile court's order on the merits. Section 388 allows a parent of a dependent child, "upon grounds of change of circumstance or new evidence, [to] petition the court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court." (§ 388, subd. (a)(1).) The juvenile court must conduct a hearing on a section 388 petition only if "the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) We review the denial of a hearing on a section 388 petition for abuse of discretion. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)
Here, Mother's section 388 petition failed to make a prima facie showing that she was entitled to her requested relief. As noted above, section 388 allows a parent to file a petition to "change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court." (§ 388, subd. (a)(1).) Mother's request for a permanent plan of legal guardianship, however, did not seek to do any of those things. Indeed, when Mother filed her petition, the juvenile court had not yet ordered a permanent plan for Raelynn. As a result, there was no order of court to "change, modify, or set aside." Given that this deficiency was apparent on the face of the petition, the court did not abuse its discretion in denying the petition without a hearing.
DISPOSITION
The appeal is dismissed as moot.
BIGELOW, P. J. We concur:
GRIMES, J.
WILEY, J.