Opinion
G057985
02-03-2020
In re A.S. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. M.S., Defendant and Appellant.
Jacques Alexander Love, 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. No appearance for the Minors.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 18DP1156) OPINION Appeal from an order of the Superior Court of Orange County, Dennis J. Keough, Judge. Dismissed as moot. Jacques Alexander Love, 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. No appearance for the Minors.
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In this juvenile dependency case, appellant M.S. (mother) challenges the juvenile court's alleged correction of a dispositional order entered as to her two minor children. She contends the court erroneously used a nunc pro tunc order to make substantive modifications to the dispositional order which amounted to more than simply fixing a clerical error. While the appeal was pending, the juvenile court terminated its jurisdiction over the children. As a result, respondent Orange County Social Services Agency (Agency) argues the appeal is moot and should be dismissed. We agree and dismiss mother's appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Mother's children were initially removed from her based, in part, on a concern about her admitted use of methamphetamines. Due to various circumstances, the Agency was eventually vested with protective custody of the children pending juvenile court jurisdictional proceedings.
At the initial jurisdictional hearing in late 2018, the Agency recommended removal of the children from parental custody and family reunification services for mother and the children's father (father), against whom mother had a restraining order. After passage of time and a series of proceedings and events, including the children's release to father under specific terms, the Agency changed its recommendation. In its report for the court scheduled April 2019 disposition hearing, the Agency recommended family maintenance services for father and enhancement services for mother.
A proposed order and findings prepared prior to the disposition hearing and submitted to the juvenile court included the Agency's 2018 recommendation, not the April 2019 recommendation. At the hearing, the court entered findings and an order consistent with the proposed order and scheduled a six-month review hearing.
Within a few months, and without a motion, the Agency requested a hearing to correct what it described as an inadvertent mistake by the parties' counsel and the court. The Agency believed the disposition order entered was meant to encapsulate its April 2019 recommendation for a family maintenance disposition, to which the parties had stipulated, not the Agency's prior recommendation for family reunification services. Mother opposed the request.
The court agreed with the Agency, concluding the error was due to its own inadvertence and that of counsel. Accordingly, it corrected the record with a nunc pro tunc order, amending the prior disposition orders to be consistent with the Agency's April 2019 recommendation.
Mother timely appealed. She contends the court erred in making changes to the dispositional orders via a nunc pro tunc order because there was no clerical error. From her perspective, the initial disposition orders accurately reflected the agreement the parties presented to the court and the court's intentions. She argues that, in the very least, she was entitled to notice of any proposed modification and the court's consideration of, inter alia, the parties' status at the time of the modification hearing.
During the pendency of this appeal, the juvenile court terminated dependency jurisdiction and gave father primary physical custody of the children. The Agency filed a motion to dismiss the appeal as moot. Mother does not oppose the motion, instead leaving it to this court to determine whether dismissal is appropriate under the circumstances.
We grant the Agency's request for judicial notice of the juvenile court's termination order. (Evid. Code, §§ 452, subd. (d), 459.)
DISCUSSION
"'[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.'" (In re Dani R. (2001) 89 Cal.App.4th 402, 404.) Issues are moot when "[n]o effective relief" can be granted (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1316), because "'[a] reversal in such a case would be without practical effect . . . .' [Citation.]" (In re Dani R., at p. 404.)
In the juvenile dependency context, an order terminating juvenile court jurisdiction generally renders an appeal from a previous order in the dependency proceedings moot. (In re Michelle M. (1992) 8 Cal.App.4th 326, 330.) However, "dismissal for mootness in such circumstances is not automatic" and "'must be decided on a case-by-case basis.'" (In re C.C. (2009) 172 Cal.App.4th 1481, 1488.) Dismissal of a dependency action does not preclude review if the challenged order continues to adversely affect an appellant after the juvenile court terminates jurisdiction (In re Joshua C. (1994) 24 Cal.App.4th 1544, 1548), or if the purported error may infect the outcome of subsequent proceedings. (In re E.T. (2013) 217 Cal.App.4th 426, 436.) Additionally, an appellate court may exercise its discretion to resolve an issue when it is of broad public interest and is likely to recur, or where "'there is a likelihood of recurrence of the controversy between the same parties or others.'" (In re N.S. (2016) 245 Cal.App.4th 53, 58-59.)
Here, none of the factors which would justify maintaining the appeal are extant. Mother is no longer affected by the challenged order, and nothing indicates the alleged error will infect the outcome of any subsequent proceedings. In addition, the fact-intensive case-specific issue on appeal is not of broad public interest and the purported error of which mother complains is not likely to recur.
Accordingly, the appeal is moot and should be dismissed.
DISPOSITION
The appeal is dismissed as moot.
THOMPSON, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.