Opinion
G057451
10-04-2019
In re A.F. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. L.F., Defendant and Appellant. A.A., Defendant and Respondent.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel for Plaintiff and Respondent. Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 18DP0445, 18DP0446, 18DP0447, 18DP0448) OPINION Appeal from an order of the Superior Court of Orange County, Katherine E. Lewis, Judge. Dismissed. Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel for Plaintiff and Respondent. Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Respondent.
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L.F. (Mother) appeals from the court's order removing her four children from her care and giving custody to A.A. (Father) pursuant to Father's Welfare and Institutions Code section 388 petition. Mother claims the order was not supported by clear and convincing evidence and the court failed to make the necessary findings for a removal order. She accordingly requests we reverse the order removing the children from her custody.
All further statutory references are to the Welfare and Institutions Code.
In July 2019, the Orange County Social Services Agency (SSA) filed a motion to dismiss the appeal on the ground of mootness. In support of its motion, SSA filed a request for judicial notice showing that after commencing this appeal, Mother stipulated to terminating the dependency proceedings with physical custody of the children vested with Father. We grant the request for judicial notice. Given the parties' stipulation and termination of dependency jurisdiction, there is no effective relief we can give Mother. We accordingly dismiss the appeal as moot.
FACTS
The Underlying Dependency Petition, Detention, and Disposition
Mother and Father have four children (Minors). Prior to the underlying juvenile dependency case, Mother and Father were involved in a contentious family law case and had joint legal and physical custody of Minors.
In November 2017, the Los Angeles Department of Children and Family Services (DCFS) filed a petition pursuant to section 300, subdivisions (a), (b)(1), (c) and (j). The petition alleged, inter alia, that Mother and Father physically abused Minors, Mother had a history of substance abuse rendering her incapable of providing regular care and supervision to Minors, Mother and Father had a history of engaging in violent altercations in Minors' presence, and Mother and Father were involved in an ongoing hostile custody battle in the family law case that caused emotional harm to Minors.
The Los Angeles juvenile court found a prima facie case had been established by the petition (as amended by interlineation), detained Minors from Father, and released Minors to Mother under DCFS's supervision. The Los Angeles juvenile court also authorized Father to have visits with Minors three times per week for three hours per visit.
After an adjudication hearing in March 2018, the Los Angeles juvenile court declared Minors to be dependents and sustained the interlineated petition as to Father. The Los Angeles juvenile court also ordered Minors released to Mother under a family maintenance plan. Father was authorized to have monitored visits with Minors.
Transfer to Orange County
In April 2018, the case was transferred from Los Angeles to Orange County. The Orange County juvenile court (the court) accepted the transfer and declared Minors to be dependents of the court in May 2018.
A few weeks later, SSA filed an interim review report recommending the court adopt a new case plan, continue family maintenance services for Mother, and continue enhancement services for Father. The court adopted the new case plan, which included a domestic violence program, psychological evaluation, general counseling, and parent education for Father. The court also authorized Father to have nine hours of monitored visits per week.
The Parents Continued to Demonstrate Their Inability to Cooperate
During the following months, the parents continued to accuse each other of various misdeeds. Father filed a section 388 petition requesting the court change its visitation order. He complained Mother was not making Minors available for visits. He requested "make up visits" and that the visits take place in a public setting. The court ultimately ordered Mother to transport Minors to all visits and authorized the visits to be monitored in a public setting. SSA subsequently informed the court of Mother's lack of compliance with the visitation order.
In September 2018, SSA filed a status review report recommending the court terminate jurisdiction and issue exit orders. The report stated that both Mother's and Father's cooperation with their respective case plans was "moderate." Nevertheless, in October 2018, Mother filed a section 388 petition requesting the court rescind SSA's authority to liberalize Father's visits. At the family maintenance review hearing, the court denied Mother's section 388 petition and ordered Minors to remain placed with Mother. The court also authorized SSA to liberalize visits with Father, required visits to continue, and ordered make up visits for those that were missed.
Father's November 2018 Section 388 Petition to Change Orders
In November 2018, Father filed another section 388 petition, which is the focus of this appeal. According to Father, Mother was not bringing Minors to visits on a regular basis and her actions were "alienating [Minors] from their father." Father accordingly requested the court remove Minors from Mother's care and place them in Father's care, or alternatively, issue sanctions against Mother and order her to comply with the visitation orders. He also requested that SSA be ordered to transport Minors to the visits. The court set a hearing for Father's section 388 petition in December 2018, which was later continued to February 2019.
Interim Review Reports
Before Father's section 388 hearing, SSA filed an interim review report in December 2018 and three subsequent addendums to that report. Each of these reports recommended the court deny Father's section 388 petition. The reports generally described the parents' progress with their case plan and detailed various accusations made by Father and Mother against each other. Father accused Mother of inappropriate care giving and violation of court orders. Mother accused Father of inadequate supervision of the Minors during visits and voiced her suspicion of sexual abuse by Father. The assigned social workers found that the sexual abuse allegations were unfounded. Father denied the sexual abuse allegations and reported that Mother had been making false police reports about him.
Section 388 Hearing to Change Orders
In February 2019, the court finally held a hearing on Father's section 388 petition and heard testimony from the social worker, paternal grandmother, Mother, and Father over the course of several days. The social worker changed her prior recommendation that the court deny Father's section 388 petition and recommended the court grant the petition. In support of her changed recommendation, she explained the visitation exchanges were "causing some emotional distress to" Minors. "Mother continues to express discontent with [SSA's] recommendation regarding visitation," and there was a history of "ongoing issues regarding visitation." In addition to the information in her reports, the social worker testified about the weekend visitation exchanges. She described some of those exchanges as problematic and mentioned an incident when Mother pushed the paternal grandmother away when she tried to reach for one of the Minors who was reluctant to go to the visit.
The paternal grandmother testified she assisted with the visitation exchanges by receiving Minors from Mother and taking them to Father. She detailed her observations of the Minors during and after the exchanges and described several incidents when she had problems with Mother.
Mother testified she had a restraining order against Father and claimed he had violated the order five times. She also admitted she grabbed the paternal grandmother's wrist during an exchange because the grandmother had a "death grip" on the youngest child, who did not want to go to the visit. She claimed Minors told her at different times that they did not want to go to visits with Father and that their behaviors were more aggressive once the visits were unmonitored. She further testified she continued going to counseling and parenting classes and learned that physical discipline is not effective.
Finally, Father testified he attended parenting classes where he learned about inappropriate physical discipline and acknowledged he had used inappropriate physical discipline in the past. He generally denied there was domestic violence between him and Mother and claimed her allegations were "overexaggerated and false." He also testified he learned it was in Minors' best interest to "get along" with Mother and to respect her opinions. He further testified he wanted Minors removed from Mother's care because "she's creating most of their disturbance—emotional disturbance." According to Father, Mother was "trying to teach [Minors] to not trust [Father], to not love [him]" and to "alienate [him] from them . . . ."
Court's Ruling Granting Father's Section 388 Petition to Change Orders
At the conclusion of the hearing, the court granted Father's section 388 petition, ordered Minors to be returned to Father's custody, allowed Mother eight hours of monitored visits per week, authorized SSA to liberalize the visits as needed, and ordered someone other than the paternal grandmother to do the exchanges. In granting the petition, the court noted there was a change of circumstance and that there needed to be clear and convincing evidence justifying the removal of Minors from Mother. With respect to Father, the court found he "changed his circumstance in that he[] finished his batterers treatment program," has "now been given liberalized unsupervised weekend visits [that] have all been reported to go very well by [Minors], by Father, by paternal grandmother and by social worker." The court concluded Father's "compliance with the case plan is changed circumstance."
With respect to Mother, the court explained the key issue was whether there was "a substantial risk of harm to [Minors]" if Mother maintained custody. The court noted "[t]here were multiple missed visits . . . when the case first came to the court." While it "appear[ed] that the visits [had] become more consistent," the court explained "the flash point has been at the exchange, and the exchanges are so clearly detrimental to [Minors] based on . . . Mother and paternal grandmother . . . ." In addition to finding the paternal grandmother was credible, the court explained: "[T]he exchanges had become so detrimental to [Minors] that it caused physical problems with [Minors]: anxiety, worry. The kids are starting to have anxiety and worry coming back from Friday because they know, 'Oh, Gosh, we had fun. Mom is going to be upset that we had fun with Dad so she's going to get mad at us tonight.' These are things that I think have changed, and so I do find that there is a change of circumstance."
The court next found it was in the best interests of Minors to return them to Father's custody. In reaching this conclusion, the court found Father's testimony was credible and explained "[e]very report that [Minors] have made to the social workers has been positive with respect to their visits with Father."
Finally, the court found there was "clear and convincing evidence [Minors] are suffering from substantial harm in Mother's continued custody or that there's a risk that they would do so if they were to remain in her custody." The court found Mother's testimony was not credible. The court also did "not believe the underlying report regarding the sexual abuse or sexual acting out by" the youngest child or Father's alleged "restraining order violations." Finally, while the court acknowledged "Mother has suffered trauma[,]" the court was concerned about "the transference of that trauma to [Minors]."
Termination of Dependency Jurisdiction
Mother timely filed this appeal from the court's order removing Minors from her care. While this appeal was pending, counsel for Mother, Father, and Minors filed a stipulation on May 23, 2019 requesting the court terminate dependency jurisdiction with physical custody of Minors vested in Father. On the same day, the court approved the stipulated request and terminated the dependency proceedings.
SSA filed a request for judicial notice requesting we take judicial notice of the parties' stipulation to terminate dependency jurisdiction, the corresponding minute orders granting the stipulation, an SSA report that included the recommendation adopted by the court, and the custody order issued by the court. We grant the request for judicial notice.
DISCUSSION
Mother contends the court erred by granting Father's section 388 petition and removing Minors from her custody. She claims there was insufficient "clear and convincing evidence that it was necessary to remove [Minors] in order to protect them and that there were no available alternatives to doing so." She also argues the court failed to make the findings necessary for a removal order under section 361.
While this appeal was pending, however, Mother stipulated to terminating dependency jurisdiction and granting physical custody of Minors to Father, which the court granted. SSA then filed a motion to dismiss the appeal on the ground of mootness because Mother stipulated to the custody arrangement she challenges on appeal and assented to terminating the court's jurisdiction. SSA also claims there is no compelling public policy reason to address the merits of Mother's claims. Mother disagrees, arguing the appeal is not moot because the removal order was erroneous and "may . . . have an impact on future legal proceedings." Given the parties' stipulation and termination of dependency jurisdiction, there is no effective relief we can give Mother. The appeal is accordingly moot, and we need not address the merits of Mother's appeal.
Applicable Law
"'[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.'" (In re Dani R. (2001) 89 Cal.App.4th 402, 404.) "As a general rule, an order terminating juvenile court jurisdiction renders an appeal from a previous order in the dependency proceedings moot. [Citation.] However, dismissal for mootness in such circumstances is not automatic, but 'must be decided on a case-by-case basis.' [Citations.] [¶] 'An issue is not moot if the purported error infects the outcome of subsequent proceedings.'" (In re C.C. (2009) 172 Cal.App.4th 1481, 1488.)
The Appeal Is Moot
Citing In re Joshua C. (1994) 24 Cal.App.4th 1544, 1548, Mother argues "declaring the case moot has the undesirable result of insulating erroneous or arbitrary rulings from review." (Ibid.) In In re Joshua C., the court considered the father's appeal from jurisdictional findings even though the dependency proceedings were terminated because the findings were the basis for visitation and custody orders that continued to affect the father. (Ibid.) Here, Mother appeals from an order that effectively has been superseded by a subsequent stipulation. We obviously cannot alter Father's custody of Minors or Mother's visitation to which the parties have stipulated. Thus, even if we were to conclude the court's ruling was erroneous, there is no effective relief we could give Mother. "Because we are unable to fashion an effective remedy, the appeal is moot." (In re Pablo D. (1998) 67 Cal.App.4th 759, 761; see In re N.S. (2016) 245 Cal.App.4th 53, 60 ["the critical factor in considering whether a dependency appeal is moot is whether the appellate court can provide any effective relief if it finds reversible error"].)
Mother also contends the removal order may have an impact on future proceedings. She argues "[i]n any future juvenile dependency proceeding the fact [Minors] were formally removed from [M]other's custody is likely to feature prominently in any report prepared by [SSA] and its social workers." She similarly claims she is "at risk of losing her parental rights in any future dependency proceeding, with possible arguments the removal order in this case would suffice for the required showing of parental unfitness necessary to sever parental relationships." Finally, she argues she "might face arguments she should be bypassed for reunification services, for example by application of section 361.5, subdivision (b)(3), which deals with prior removals for physical abuse."
But Mother does not show how these events will ever become reality. Even if there is a future dependency proceeding, "a finding of jurisdiction must be based on current conditions. [Citation.] . . . [T]he agency will be required to demonstrate jurisdiction by presenting evidence of then current circumstances placing the minor at risk. Other relevant dependency findings similarly would require evidence of present detriment, based on the then prevailing circumstances of parent and child." (In re I.A. (2011) 201 Cal.App.4th 1484, 1495.) Section 361.5, subdivision (b)(3), which Mother cites, is also inapplicable. That provision authorizes a court to deny reunification services if "the child or a sibling of the child has been previously adjudicated a dependent pursuant to any subdivision of Section 300 as a result of physical or sexual abuse, . . . following that adjudication the child had been removed from the custody of his or her parent . . . , the child has been returned to the custody of the parent . . . from whom the child had been taken originally, and . . . the child is being removed . . . due to additional physical or sexual abuse." (Ibid.) While the court declared Minors to be dependents in part due to Mother's physical abuse, they were not removed from her custody because of physical abuse. Mother's argument also assumes Minors will be returned to Mother and then removed again in the future because of physical or sexual abuse. We see no reason to review the court's order based on such speculation.
DISPOSITION
The appeal is dismissed as moot.
IKOLA, J. WE CONCUR: ARONSON, ACTING P. J. FYBEL, J.