Opinion
F074448
11-30-2017
In re EVAN M., et al., Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. M.M., Objector and Appellant.
M.M., in pro. per., for Objector and Appellant. Mark Nations, Interim County Counsel, and Amanda LeBaron, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. JD134903-00, JD134904-00)
OPINION
APPEAL from an order of the Superior Court of Kern County. Louie L. Vega, Judge. M.M., in pro. per., for Objector and Appellant. Mark Nations, Interim County Counsel, and Amanda LeBaron, Deputy County Counsel, for Plaintiff and Respondent.
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At a Welfare and Institutions Code section 366.26 hearing, the juvenile court terminated the parental rights of Robin B. (mother) and Michael M. (father) as to their two children and selected adoption as the permanent plan. Paternal grandmother M.M. (grandmother) appeals, in propria persona, from a juvenile court order issued at a placement hearing held after parental rights were terminated. During the pendency of grandmother's appeal, mother and father appealed from the orders terminating their parental rights and we affirmed the termination orders, which are now final. Because those orders are now final, we cannot provide grandmother with any effective relief and her appeal is moot. Therefore, we must dismiss the appeal.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
The Kern County Department of Human Services (Department) took newborn Jacob and 11-month-old Evan into protective custody in July 2015 after mother and Jacob tested positive for methamphetamine. The juvenile court exercised its dependency jurisdiction over the children in October 2015 after sustaining allegations that mother's substance abuse and mental illness placed the children at substantial risk of harm and father failed to protect them. The court ordered reunification services for both parents.
When the children were taken into protective custody, they were placed together in an emergency foster home, moved to another foster home within a few days, and ultimately placed with their paternal cousins. The paternal cousins, however, felt overwhelmed and unable to care for both children, so the children were moved to a foster home at the end of August 2015. On October 20, 2015, the Department received a non-related extended family member (NREFM) application for placement of the children from Steven and Lacey H., which was approved on November 5, 2015.
Grandmother and her husband, Richard M., (collectively grandparents) had applied for placement of the children on July 13, 2015. The application, however, was not completed within 120 days due to fingerprinting issues with an individual living in grandmother's home; the relative assessment social worker therefore notified grandparents on November 9, 2015 that their application had been withdrawn. At a November 10, 2015 meeting attended by mother, father, grandmother, the foster parents, a social worker and a social service supervisor, a consensus was reached to place the children with the H.'s and the children were moved to their home that day. The grandparents submitted a new application for placement on December 10, 2015, and their home was approved in April 2016.
At the May 3, 2016 six-month review hearing, the juvenile court terminated mother's and father's reunification services for noncompliance and set a section 366.26 hearing for August 31. On May 5, the juvenile court designated the H.'s as the children's prospective adoptive parents (PAP). On May 13, a social worker notified grandmother that the Department did not intend to place the children in her care.
Subsequent references to dates are to dates in 2016, unless otherwise stated.
Neither parent challenged the setting order by filing a petition for extraordinary writ. (Cal. Rules of Court, rules 8.450-8.452.)
Grandmother appealed the Department's decision to deny her placement of the children and a placement grievance hearing was held on May 31. On June 6, Hearing Officer Daniel Allbee granted grandmother's grievance, finding that she was entitled to preferential consideration as a relative pursuant to section 361.3, she had a significant pre-existing relationship with Evan, she had regularly visited the children throughout the case, and she wanted to adopt the children, and ordered the children placed with her. On June 10, the Department provided the H.'s with a seven-day notice to remove the children from their home.
On June 10, an ex parte hearing was held at the Department's request. The Department asked the juvenile court to set aside the H.'s PAP designation because it was premature, as the section 366.26 hearing had not yet occurred. The juvenile court set aside the order and reset a hearing on the H.'s request for PAP status for August 31, the date of the section 366.26 hearing.
On June 20, the H.'s filed a section 388 petition through their attorney David Duket, seeking to stay removal of the children from their home until the juvenile court could hold a placement hearing. The H.'s asserted a stay would prevent an unnecessary move of the children pending a court hearing, and allow a placement decision well before the section 366.26 hearing. The H.'s also filed requests for de facto parent status.
An ex parte hearing was held on June 21 at the request of the children's attorney. The attorney explained the H.'s had notified her as soon as they learned the Department intended to move the children and they had filed a grievance with the Department, which was to be heard the following day. The attorney asked the court to set a placement hearing so the matter could be litigated and asserted it would be appropriate to stay the children's removal pending the hearing. County counsel did not object to the stay, but asked that the hearing be calendared as soon as possible. The H.'s attorney, Duket, told the court that the H.'s were willing to forego their grievance hearing and instead have a hearing before the juvenile court on the H.'s section 388 petition and request for de facto parent status.
County counsel, however, objected to Duket's representation of the H.'s, as Duket presided over the May 3 review hearing as judge pro tempore. County counsel was not willing to waive the conflict, so the juvenile court continued the hearing to June 27 to give the H.'s time to retain new counsel. At first the juvenile court stated it was returning the section 388 petition and requests for de facto parent status to Duket so the H.'s new attorney could resubmit them on the H.'s behalf, but later stated the documents would be retained in the file "subject to . . . consideration for granting a 388 and the de facto parent status." The juvenile court stayed removal of the children through the June 27 hearing.
At the June 27 hearing, which was to set a date for the placement hearing, the H.'s new attorney asked that the hearing be set after July 15 because a witness was not available until then. Due to scheduling conflicts of the attorneys and court, the hearing was set for August 9.
On August 1, grandmother filed her declaration through her attorney. Grandmother recounted the history of her attempts to obtain placement of the children and addressed statements the H.'s made in their court filings. Grandmother asked the juvenile court to place the children in grandparents' care pursuant to the hearing officer's recommendation.
At the August 9 hearing, mother's attorney requested a continuance because the Department had not filed the hearing officer's decision. Grandmother's attorney discovered when he arrived at the hearing that a number of attorneys did not have the decision, and was surprised there was no follow-up report or something that included it. County counsel responded that the Department did not have an affirmative duty to disclose the decision when counsel did not request it and due to the confidential information presented at the hearing, it would not release the decision without a court order.
After the H.'s attorney objected to the court receiving the decision into evidence, the juvenile court asked him to submit a brief on that issue. The juvenile court stated it would order production of the decision, but would refrain from reading it until it ruled on the H.'s objections. The H.'s attorney also asked the court to authorize the Department and grandmother's attorney to provide him with documents filed in response to the section 388 petition, as he had not received anything, including grandmother's declaration. The children's attorney asked the trial court for the daily service logs from October 20, 2015 to the present. Mother's attorney concurred in the request, since if the hearing officer's decision could not be considered, it would need an avenue to get the facts before the court. Grandmother's attorney joined in the request. County counsel did not object and agreed to provide the logs.
The juvenile court found good cause to continue the hearing. At grandmother's attorney's request, the juvenile court ordered the hearing officer to appear at the continued hearing. The juvenile court ordered the H.'s attorney to file a written objection to the admission of the hearing decision by August 15 and the other parties could file a response by August 19, which it would then take under submission and issue a written ruling. County counsel recommended the hearing be set for August 31, but that was not a good date for the court. After the H.'s attorney asserted the hearing would probably take an entire day, the juvenile court set the hearing for the first available date of September 22. The juvenile court ordered production of the daily service logs from July 8, 2015 through June 6, 2016.
On August 22, County counsel filed a motion to either exclude the testimony of the hearing officer or, at a minimum, for a protective order prohibiting questioning as to the officer's thought processes that contributed to any quasi-judicial decision he made in preparing his recommended decision to the Department's director. The motion was to be heard on September 22.
The hearing pursuant to section 366.26 and on the H.'s request for PAP designation was held on August 31. The Department recommended termination of parental rights and a permanent plan of adoption. The Department noted the H.'s wanted to adopt the children, and that grandmother had been approved for placement and a placement hearing had been scheduled. Mother's and father's attorneys both objected to the recommendations without additional evidence, and asked that the PAP issue be continued to the September 22 placement hearing. They did not request a continuance of the section 366.26 hearing. The children's attorney asked the court to follow the recommendations and asserted that once parental rights were terminated, neither parent had standing with respect to the PAP issue. The children's attorney asked the court to designate the H.'s as PAP as they met the statutory qualifications. County counsel submitted on the Department's recommendations and concurred with the children's attorney's legal analysis with respect to the PAP issue, although the Department did not take a position on that issue.
The juvenile court terminated mother's and father's parental rights and freed the children for adoption. The H.'s attorney, joined by the children's attorney, asked the juvenile court to find the H.'s were PAP, as they met the requirements and parental rights had been terminated. The juvenile court agreed and granted the H.'s request to be designated the children's PAP.
In preparation for the September 22 hearing, the Department provided the court and parties with the hearing officer's decision, and submitted a social worker's report which was prepared after the section 366.26 hearing. The social worker explained that once parental rights were terminated at the section 366.26 hearing, all natural family relationships were severed, including the children's relationship with grandparents, and therefore grandparents no longer were entitled to a relative placement preference. In addition, the H.'s were the children's PAP. The Department, therefore, recommended the children remain in the H.'s home.
The Department also filed points and authorities in which it asserted that once parental rights were terminated and the children referred for adoptive placement, the adoption agency is entitled to the exclusive care and control of the children pending an adoption petition, and the court's inquiry is limited to whether the adoption agency abused its discretion in its decision. The Department argued the adoption agency had not abused its discretion in deciding to proceed with adoption by the H.'s.
When counsel were stating their appearances at the September 22 placement hearing, grandmother's attorney stated he was "representing the grandparents, moving party, in and regards to this matter." The children's attorney objected to the statement that grandparents were the moving party, as the children's attorney was the one who requested the placement hearing. Grandmother's attorney responded that "[w]e do have our motion on file." The children's attorney stated she did not have a pending motion from grandmother or her attorney, and the juvenile court stated it did not have one either. The H.'s attorney added the only document he had received was grandmother's declaration, which was not admissible and did not have a motion attached to it. Grandmother's attorney stated the declaration was in support of the hearing officer's decision and addressed whether the Department should be compelled to comply with that decision.
The juvenile court then turned to a "preliminary issue" that needed to be addressed, namely the status of the case itself. The children's attorney stated she was withdrawing her motion for a placement hearing and asked the court to vacate the hearing, since the Department had changed its position regarding placement following the section 366.26 hearing and termination of parental rights. Grandmother's attorney responded that grandmother's motion or declaration brought a mistake the Department made into court and they were asking the court to provide redress regarding that. County counsel did not have a position on the children's attorney's request.
Grandmother's attorney added that he was at court for the section 366.26 hearing and spoke with the parents' attorneys before the hearing, who told him he could not attend the hearing since grandmother had no "position to be there," but he received assurances that grandmother would still have standing with respect to her motion, declaration or request regarding placement, as it was filed before termination of parental rights. Had he known otherwise, he would have demanded to come into the court at the section 366.26 hearing and address his concern regarding termination. The juvenile court responded that grandparents would not have standing for that purpose. Grandmother's attorney agreed that was true with respect to termination, but he sought and received assurances that the placement issue was before the court prior to termination.
The H.'s attorney responded that he was at the section 366.26 hearing and spoke with grandmother's attorney, who told him and the parents' attorneys that he was there to pursue the placement hearing. They all told him the section 366.26 hearing was not the placement hearing and did not have anything to do with that. Grandmother's attorney indicated he was going to leave. The H.'s attorney wanted to make it clear that there were no misrepresentations and grandmother's attorney was not misled.
Grandmother's attorney disagreed, as the issue regarding whether termination of parental rights was going to affect his motion was brought up, not only by parents' attorneys but also by the H.'s attorney, who said it would not because the motion had already been filed. Based on those assurances, grandmother's attorney did not make his presentation to the court. While he recognized he did not have standing to be there, he would have still argued regarding the effect of termination on his placement motion.
The juvenile court stated that the section 366.26 hearing and its implications are clearly stated in the law, as well as who has standing to be at the hearing, and grandparents would not have had standing. The court explained it made findings and orders at that hearing based on the matter before it and parental rights were terminated, therefore "whatever rights the grandparents may have had have also been extinguished and the motion that was presented to the court has been withdrawn. The issues are moot. There is no basis for going further at this time." The H.'s attorney withdrew the H.'s section 388 petition, which he asserted was pending before the court, as the petition was moot since the Department was no longer recommending removal of the children. The juvenile court accepted the children's withdrawal of their petition and stated that all matters involving the case had been decided up to that point. The court explained to grandmother's attorney that his "clients may consider any other matters they want to pursue, but as far as what we are gathered here for today, it's become moot through what's already taken place."
DISCUSSION
Among other things, grandmother contends the juvenile court erred in continuing the placement hearing from August 9 to September 22, and she was denied due process when the juvenile court "vacat[ed] and moot[ed]" the children's and H.'s hearing requests at the September 22 hearing. She asks us to reverse the juvenile court's decision to deny her standing so she may be given preferential consideration and due process, and reinstate the Department's order that the children be placed with her.
The relative placement provisions in section 361.3 apply when a child is taken from his or her parents and placed outside the home pending the determination whether reunification is possible. (In re Sarah S. (1996) 43 Cal.App.4th 274, 285 (Sarah S.).) A relative, who presumably has a broader interest in family unity, is more likely than a stranger to be supportive of the parent-child relationship and less likely to develop a conflicting emotional bond with the child. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032 (Cesar V.).)
Section 361.3 requires preferential consideration for a relative who requests placement, but it does not create an evidentiary presumption in favor of placement with a relative. (Sarah S., supra, 43 Cal.App.4th at p. 286.) " 'Preferential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated." (§ 361.3, subd. (c)(1).) In other words, a relative will be considered before a stranger's request for placement. (Sarah S., at p. 285.) But a relative must be assessed and approved before preferential placement may be ordered. (§ 361.3, subd. (a)(8).) Thus, preferential consideration does not necessarily compel a relative placement; the relative placement preference is not a relative placement guarantee. (In re Joseph T. (2008) 163 Cal.App.4th 787, 798.) Where a relative requests placement of a child prior to a dispositional hearing, and the agency does not timely complete a relative home assessment, the relative requesting placement is entitled to a hearing pursuant to section 361.3, without having to file a section 388 petition. (In re Isabella G. (2016) 246 Cal.App.4th 708, 712.)
The relative placement preference also applies to placements made after the dispositional hearing, even when reunification efforts are no longer ongoing, whenever a child must be moved. (§ 361.3, subd. (d); see Cesar V., supra, 91 Cal.App.4th at pp. 1031-1032.) However, the relative placement preference does not apply to an adoptive placement; there is no relative placement preference for adoption. (In re Lauren R. (2007) 148 Cal.App.4th 841, 855 (Lauren R.); see In re K.L. (2016) 248 Cal.App.4th 52, 65-66.) Once the juvenile court has determined that reunification is not possible, the most pronounced reason for trying to maintain family ties terminates as well, although, even then, access to relatives may still be a factor a court considers in making permanent placement decisions. (Samantha T. v. Superior Court (2011) 197 Cal.App.4th 94, 113, citing Lauren R., at pp. 854-855.) Instead, at the section 366.26 hearing, the court must apply the caretaker preference under section 366.26, subdivision (k). (Lauren R., at p. 853.)
During the pendency of grandmother's appeal parents appealed the termination orders and we issued an opinion affirming them, which is now final. Accordingly, we asked the parties to address in supplemental briefing whether this appeal is moot. Grandmother filed a response, arguing her appeal is not moot because her interest is separate from the parents' interest in their parental rights, and she urges us to exercise our discretion to decide the appeal, as she raises issues of continuing public importance that are capable of repetition, yet evading review. Because the termination orders are final, we conclude the appeal is moot.
The Department argues that grandmother does not have standing to appeal because she is not a party to the proceedings, as she did not file a section 388 petition and she was never made a party. We need not address the contention, as we conclude the appeal is moot. We note, however, that generally grandparents have standing to appeal the denial of a request for relative placement. (In re K.C. (2011) 52 Cal.4th 231, 239; In re Aaron R. (2005) 130 Cal.App.4th 697, 702-703.) --------
"As a general rule, it is a court's duty to decide ' " 'actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.' " ' [Citation.] An appellate court will dismiss an appeal when an event occurs that renders it impossible for the court to grant effective relief." (In re N.S. (2016) 245 Cal.App.4th 53, 58-59.)
"An order of the dependency court terminating parental rights may be modified only by a timely direct appeal from the order. [Citation.] It is not subject to collateral attack, such as by petition for writ of habeas corpus." (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1316 (Jessica K.).) In Jessica K., the mother timely appealed from an order denying her petition under section 388 requesting her child be returned to her custody. The juvenile court terminated the mother's parental rights while her appeal was pending, but she neglected to appeal from the termination order. (Jessica K., at p. 1315.) The appellate court concluded the order terminating parental rights rendered her appeal moot. "In this case, mother appealed from the order summarily denying her section 388 petition, but did not appeal from the order terminating parental rights, allowing the termination order to become final. The failure to file a timely notice of appeal from the termination of parental rights order deprives us of appellate jurisdiction to modify that order. Accordingly, the parental rights termination order may not be vacated. No effective relief may be afforded mother even were we to find her appeal of the denial of the section 388 petition meritorious. Thus, the appeal is moot." (Jessica K., at pp. 1316-1317.) The Court of Appeal therefore dismissed the appeal. (Id. at p. 1317.)
In this case, grandmother timely appealed from the order that dismissed the placement hearing. The juvenile court, however, had terminated parental rights and freed the children for adoption. While the parents timely appealed from those orders, their appeal was resolved during the pendency of grandmother's appeal and remittiturs have issued. As such, the orders terminating parental rights and freeing the children for adoption are now final. (In re Carrie M. (2001) 90 Cal.App.4th 530, 533 ["An order is final when the time for appeal has expired and no timely appeal has been filed or the order has been appealed and affirmed."].) Even if grandmother is correct on the merits of her appeal, we cannot provide her with the relief she seeks, viz., a new relative placement hearing. While grandmother asserts we should exercise our inherent discretion to resolve the issues she raises because they present issues of public importance that are capable of repetition yet evade review, whether to address such issues is in our discretion. (In re Anna S. (2010) 180 Cal.App.4th 1489, 1498; In re Christina A. (2001) 91 Cal.App.4th 1153, 1158-1159). We decline to exercise that discretion here.
DISPOSITION
The appeal is dismissed.
/s/_________
GOMES, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
MEEHAN, J.