Opinion
H045595
11-15-2018
In re D.G. et al., Persons Coming Under the Juvenile Court Law. MONTEREY COUNTY DEPARTMENT OF SOCIAL & EMPLOYMENT SERVICES, Plaintiff and Respondent, v. J.G., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. Nos. 16JD000105, 16JD000106)
In July 2016, the Monterey County Department of Social Services (Department) filed petitions under Welfare and Institutions Code section 300, subdivisions (b)(1), relative to two girls, D.G. and A.G. (collectively, the minors). The Department alleged that the prior month the minors' mother, R.J. (mother), had gone to Sacramento and had left the minors, their sibling, V.G., and three half-siblings with their maternal grandparents. The grandparents were not guardians of the children. The investigating social worker visiting the grandparents' home found minimal food in the house and that the children were hungry and unsupervised. The father of V.G. and the minors, J.G. (father), arrived later and told the social worker that he had cared for the children for approximately one week, but had then returned them to their grandparents because he had no day care. The Department placed the minors and the other children into protective custody.
Further statutory references are to the Welfare and Institutions Code unless otherwise stated.
The record reflects that petitions were filed on behalf of all six children. This appeal concerns only the minors D.G. and A.G.
The juvenile court found true the allegations of the petitions in September 2016 and ordered that parents receive family reunification services and supervised visitation. The minors were placed with noncurrent foster families in Monterey County, and, later, in Santa Cruz County. After receiving approximately one year of services, the court terminated mother's and father's reunification services and scheduled a selection and implementation hearing under section 366.26 (366.26 hearing) for January 9, 2018. At the uncontested 366.26 hearing in January 2018, the court found the minors adoptable and that the permanent placement goal of adoption was appropriate and in the minors' best interests.
Father appeals from the orders entered after the 366.26 hearing. He contends that (1) no substantial evidence supported the trial court's findings that the minors were adoptable, and (2) the court failed to properly consider relative placement preference after the termination of reunification services. We conclude that the first issue is moot and that father has no standing to assert the second claim of error. Accordingly, we will dismiss the appeal.
I. FACTS AND PROCEDURAL HISTORY
Because we resolve the issues on appeal on procedural grounds, we will provide a more limited discussion of the facts and procedural background.
A. Petitions and Detention Orders (July 2016)
On July 15, 2016, the Department filed petitions on behalf of the minors under subdivision (b)(1) of section 300. The Department alleged there was a substantial risk that the minors would suffer serious physical harm or illness as a result of their parents' (1) inability to supervise or protect them, (2) willful or negligent failure to supervise and protect them, and (3) willful or negligent failure to provide them with adequate food, clothing, shelter, and medical treatment.
The Department alleged in the petitions that mother has six children, including D.G. (then 10 years old) and A.G. (then eight years old). Sometime in June 2016, mother went to Sacramento leaving the minors and their siblings in the care of their maternal grandparents. It was reported that when the grandmother worked in the fields, she left the children with various relatives. "The reporting party observed there was no food in the home and the children were fighting over a small cup of soup that was given to them. The reporting party was also concerned that the home was littered with trash which included dirty diapers. The children reportedly slept on the floor and wore soiled and stained clothing. The reporting party stated the relatives caring for the children are known drug users who lock themselves in the bedroom leaving the children unsupervised."
The investigating social worker found five of the six children unsupervised. "The grandmother was 'passed out' in her bedroom until [A.G.] woke her." The grandmother did not know D.G.'s whereabouts, but D.G. later arrived with the grandfather. There was almost no food in the pantry or refrigerator, and the grandmother was unable to prove that she had provisions such as a bottle or diapers. V.G. said that they usually ate one meal a day; A.G. confirmed this, saying "that she is 'hungry a lot.' " The minors' four-year-old half brother had no shoes.
The grandmother was unable to provide the social worker with mother's whereabouts or contact information. The children said that mother had left one month earlier with her boyfriend. The grandmother told the social worker that she works five days a week, 10 to 12 hours a day, and leaves the children with her son, T.J. Although T.J. was in the house, he was not supervising the children. He stated it was difficult to feed the children "because there are so many of them." T.J. agreed with the social worker that she needed to intervene. T.J. was drug-tested by the social worker and tested positive for marijuana and opiates.
Father arrived during the social worker's visit and told her he had cared for the children for approximately one week, but had then returned them to their grandparents because he had no day care. Father said he had tried to bring food for all of the children but he had difficulty affording it.
The Department alleged further in the petitions that since 2010, there had been six referrals involving absence, general neglect, and physical and emotional abuse by mother. It also alleged that mother and father both had criminal histories that impaired their ability to care for the children.
The Department placed the minors and the other children into protective custody.
On July 18, 2016, the juvenile court found that a prima facie showing had been made that the minors came within section 300 with the minors to remain in the care, custody, and control of the Department.
B. Jurisdiction/Disposition Report and Hearing (September 2016)
The Department reported that the minors had been placed in a nonconcurrent foster home in Monterey County. The foster mother advised that the girls had engaged in very disruptive and aggressive behaviors, but she was willing to continue to work with them with the support of wraparound services.
On September 6, 2016, the court conducted an uncontested jurisdictional/dispositional hearing. It found true the allegations of the petitions and declared the minors to be dependents of the court in out-of-home placement. The court further ordered that family reunification services be provided to father and mother and ordered that the parents each receive supervised visitation in accordance with the case plan.
C. Six-Month Review Report, Hearing and Order (March 2017)
The Department advised that the minors had been placed in a nonconcurrent foster home in Santa Cruz County. The minors' prior foster family had provided "a seven day notice on the girls due to their difficult behavior." Their new placement was an Intensive Therapeutic Foster Care (ITFC) home due to A.G.'s having "present[ed] the more severe episodes in the previous placement." Neither mother nor father had participated in their respective case plans, and mother had been incarcerated for approximately one month in early 2017 and was homeless at the time of the report. Father had ceased all contact with the Department in mid-December 2016.
The court conducted an uncontested six-month review hearing on March 7, 2017. Mother was not present at the hearing. The court found that mother and father had failed to participate regularly in court-ordered treatment programs. It found further that neither parent had made any progress in alleviating or mitigating the causes necessitating the placement of the minors in foster care. The court found that the minors' continued out-of-home placement was necessary and ordered them to remain in the care and custody of the Department. It ordered the continuation of family reunification as to mother and father.
D. 12-Month Review Report, Hearing and Order (September 2017)
The Department advised that the minors were still residing with their foster family in Santa Cruz County. The foster parents reported that the minors continued to exhibit difficult behavior, "includ[ing] fighting with each other, slamming doors, episodes of body slamming and inconsolable crying several times per week." The foster parents "gave a 15 day notice on July 19, 2017," which they later rescinded. The Department developed a plan to support the foster parents that included approval of ITFC services for D.G.
Mother and father had been in contact with the Department, but neither had engaged consistently in the services offered. Mother had moved for approximately two months (April to June 2017) to Sacramento with her boyfriend; visitation with her children was suspended during that time. The Department recommended that services to mother and father be terminated.
The court held an uncontested 12-month review hearing on September 5, 2017. Father was not present at the hearing. The court adopted the recommendations of the Department, including terminating reunification services for mother and father. The court set a 366.26 hearing for January 9, 2018.
E. Hearing Pursuant to Section 366.26 (January 2018)
The Department advised that the minors continued to reside with their foster family in Santa Cruz County. It was reported that both girls continued to struggle with their emotional and mental health. The two girls had good and bad days; on the bad days, they argued, which often led to physical altercations between them.
D.G. had an incident at school involving bullying that resulted in her suspension. She "continued to have episodes of sadness, aggressiveness, and uncontrollable crying." In October 2017, D.G. expressed suicidal feelings with a friend, but as of the time of the report (December 26, 2017), she had stated she no longer had feelings about self-harm or suicide. She had also been referred in December to a psychiatrist, who had prescribed antidepressant medication.
It was reported that A.G. was "a very anxious child, who becomes scared very easily and can escalate very quickly." She had "periods where she [would] ignore her caregivers' request or directions or [would] emotionally shut down and become non-compliant." Her caregivers had noted, however, that in recent months, there were more periods of A.G. being cooperative with them and she seemed more relaxed and less anxious.
The Department commented that D.G. and A.G. "still are dealing with grief and loss and, at this point, they do not want to be adopted; therefore, the Department is recommending the goal of adoption." The Department recommended that the court find that (1) the minors are adoptable, and (2) the permanent placement goal of adoption is appropriate.
The court conducted an uncontested 366.26 hearing on January 9, 2018. Neither mother nor father was present at the hearing. The court found, inter alia, there to be a "probability for adoption but is difficult to place [the minors] for adoption and there is no identified or available prospective adoptive parent, [¶] . . . because the children are . . . member[s] of a sibling group that should stay together, and/or [¶] . . . because the children are the age of seven years or more." It found further that the minors "have a probability for adoption but additional time is needed to insure the appropriateness of the possible permanent placement home." (See § 366.26, subd. (c)(3).) The court also concluded that "[a] permanent placement goal of adoption is appropriate and in the best interests of the [minors]." The court therefore ordered that adoption was the permanent placement goal for the minors and the Department was required to conduct a search for a permanent family.
Father filed a timely notice of appeal from the court's orders after the 366.26 hearing.
Father filed a notice of appeal regarding the minors' sibling V.G. Father's counsel filed a letter brief pursuant to In re Phoenix H. (2009) 47 Cal.4th 835, indicating there were no issues on appeal. Father did not provide a showing of good cause for filing a supplemental brief, and his appeal was dismissed. (In re V.G. (Apr. 9, 2018, H045461) [appeal dismissed as abandoned].)
II. DISCUSSION
A. The Appeal Is Partially Moot
1. Department's Request for Judicial Notice
Concurrent with the submission of respondent's brief, the Department filed a request for judicial notice (request) pursuant to Evidence Code sections 452 and 459 and California Rules of Court, rule 8.252. In the request, the Department asked that this court take judicial notice of two postappeal orders filed by the juvenile court on July 10, 2018, pertaining to a subsequent 366.26 hearing in the minors' respective dependency proceedings. The Department also moved this court to take additional evidence pursuant to Code of Civil Procedure section 909 and rule 8.252. It requested that this court find that (1) the minors, as of July 10, 2018, were not likely to be adopted, and (2) the permanent plan for the minors, as of July 10, 2018, was placement in their respective foster homes with the specific goal of adoption. Father did not oppose the Department's request.
All further rule references are to the California Rules of Court.
Under Evidence Code section 459, subdivision (a), a "reviewing court may take judicial notice of any matter specified in [Evidence Code] Section 452." A court may judicially notice, inter alia, "[o]fficial acts of the . . . judicial departments of . . . any state in the United States" (Evid. Code, § 452, subd. (c)) and "[r]ecords of . . . any court of this state" (id., subd. (d)). The two orders that are the subject of the request are proper matters for which judicial notice may be taken. (Magnolia Square Homeowners Ass'n v. Safeco Ins. Co. (1990) 221 Cal.App.3d 1049, 1056.) And in instances in which subsequent developments in the trial court may be relevant in determining whether issues on appeal are moot, it is appropriate for the appellate court to take judicial notice of such postappeal trial court orders. (In re Cassandra B. (2004) 125 Cal.App.4th 199, 207, fn. 3 [appellate court, in considering respondent's mootness contention, took judicial notice of postappeal order demonstrating that juvenile court did not renew or extend restraining order that was subject of mother's appeal]; see also In re N.S. (2016) 245 Cal.App.4th 53, 57 ["dependency counsel have a duty to bring to the appellate court's attention postappellate rulings by the juvenile court that affect whether the appellate court can or should proceed to the merits"]; In re Salvador M. (2005) 133 Cal.App.4th 1415, 1422 [augmentation of record permitted to confirm that issue on appeal had become moot].) We therefore grant the Department's request for judicial notice.
As noted, the second part of the Department's request sought findings from this court regarding the minors' adoptability and permanent plans as of July 10, 2018. Since we are able to dispose of the Department's mootness contention concerning father's argument that there was insufficient evidence to support the juvenile court's adoptability findings as to the minors on the basis of the two July 10, 2018 orders themselves, it is unnecessary for this court to make the findings identified in the Department's request.
2. Father's Challenge to Adoptability Finding Is Moot
In general, appellate courts will neither decide controversies that are moot nor render decisions on abstract propositions. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541 (Eye Dog Foundation).) " '[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.' [Citations.]" (Building a Better Redondo, Inc. v. City of Redondo Beach (2012) 203 Cal.App.4th 852, 866.) And "[a] case is moot when the decision of the reviewing court 'can have no practical impact or provide the parties effectual relief. [Citation.]' [Citation.] 'When no effective relief can be granted, an appeal is moot and will be dismissed.' [Citations.]" (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214.)
It is commonplace for the mootness doctrine to have been applied in dependency proceedings. For example, in In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315, after the child was detained, reunification services were provided to the mother and her services were ultimately terminated, she petitioned under section 388 to regain custody of her child. After summary denial of her petition, the mother appealed; thereafter, however, the juvenile court terminated her parental rights and she did not challenge that decision. (In re Jessica K., supra, at p. 1315.) The appellate court held that the mother's appeal was moot because no effective relief could be granted (id. at pp. 1315-1316), reasoning that "[b]ecause mother's parental rights cannot be restored even were we to agree with mother that the summary denial [of her petition] was an abuse of discretion, a hearing on mother's petition would be futile" (id. at p. 1315).
Likewise, in In re Pablo D. (1998) 67 Cal.App.4th 759, 760, the minor appealed from the juvenile court's order at the 12-month review hearing extending reunification services to his parents to the 18-month review hearing. Because 10 months had passed since the challenged order and the parents were continuing to receive services, the court held that the appeal was moot. (Id. at p. 761.) The court held: "Obviously, we cannot rescind services that have already been received by the parents. Because we are unable to fashion an effective remedy, the appeal is moot. [Citation.]" (Ibid.; see also In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1417 [judicial notice of postappeal order placing minor with father rendered appeal by mother challenging minor's prior placement in home in foreign country moot]; In re Brandon M. (1997) 54 Cal.App.4th 1387, 1401 [mother's challenge to order placing minors with de facto father for " 'ninety-day trial home visit' " for the spring of 1996 was "patently moot" since appeal was heard in May 1997].)
In the two postappeal orders attached to the Department's request, the juvenile court (1) found that the minors were "not likely to be adopted at this time," and (2) ordered that the permanent plan for the minors was placement with their respective foster families "with a specific goal of adoption." It is thus apparent that in July 2018, the juvenile court reversed course from its prior findings regarding the minors' adoptability made at the first 366.26 hearing in January 2018. Therefore, father's challenge to the juvenile court's January 2018 adoptability finding on the basis of lack of substantial evidence was rendered moot by the court's July 2018 finding that the minors were "not likely to be adopted at this time." The outcome of the second 366.26 hearing made any appellate resolution of whether substantial evidence supported the court's prior adoptability findings an abstract proposition. (Eye Dog Foundation, supra, 67 Cal.2d at p. 541; see also Downtown Palo Alto Com. for Fair Assessment v. City Council (1986) 180 Cal.App.3d 384, 391 [appellate courts generally do not decide "abstract or academic questions"].)
It has been observed that "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." (In re N.S, supra, 245 Cal.App.4th at p. 60.) We conclude under the circumstances here that, as to the controversy of whether substantial evidence supported the juvenile court's January 2018 adoptability findings, we can provide no effective relief. The appeal therefore as to this issue is moot.
B. Standing to Assert Postreunification Relative Placement Challenge
The second issue that is the subject of father's appeal is "the relative placement preference after the termination of reunification services." Father challenges the actions taken by the Department and the court on this issue of relative placement, contending generally that at various stages of the dependency proceedings, the Department and the court failed to assess the propriety of placing the minors with "several relatives [who] came forward and requested placement." The Department—before addressing the merits of this challenge—raises the threshold issue of standing.
"Any party aggrieved may appeal . . . ." (Code. Civ. Proc., § 902.) A party "is considered 'aggrieved' [when his or her] rights or interests are injuriously affected by the judgment. [Citations.]" (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737.) This rule of standing is "jurisdictional." (Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947;see also Hudis v. Crawford (2005) 125 Cal.App.4th 1586, 1592 [absence of standing "is a jurisdictional defect"].) Although "standing to appeal is construed liberally" (In re K.C. (2011) 52 Cal.4th 231, 236), the appellant's injury "must be immediate and substantial, and not nominal or remote" (In re L. Y. L. (2002) 101 Cal.App.4th 942, 948). Thus, for instance, "the mere fact a parent takes a position on a matter at issue in a juvenile dependency case that affects his or her child does not alone constitute a sufficient reason to establish standing to challenge an adverse ruling on it." (In re Carissa G. (1999) 76 Cal.App.4th 731, 736.)
There are a number of dependency cases in which parties have been held to have lacked standing to litigate appellate issues. In In re K.C., supra, 52 Cal.4th at page 235, the minor's father challenged an order denying his parents' (the minor's paternal grandparents') section 388 petition seeking placement of the minor in their home; at the same hearing as the section 388 petition, the court selected adoption as the permanent plan and terminated the father's and the mother's parental rights. The Supreme Court held that the father, who had abandoned any challenge to the termination of his parental rights, lacked standing to challenge the denial of the paternal grandparents' section 388 petition. (In re K.C., supra, at p. 238; see also In re Holly B. (2009) 172 Cal.App.4th 1261 [where father's reunification services were terminated, he lacked standing to challenge order rescinding dependent child's psychological evaluation relevant to her placement]; In re Nachelle S. (1996) 41 Cal.App.4th 1557 [where parental rights of both parents had been terminated, they lacked standing to challenge order of visitation between child and his or her siblings]; In re Gary P. (1995) 40 Cal.App.4th 875 [where parental rights had been terminated, parents lacked standing to challenge order severing ties between dependent children and grandmother].)
Relative placement preference is set forth in section 361.3. The statute "protects a relative's 'separate interest' in a relationship with the child. [Citation.] In contrast, a parent's interest in a dependency proceeding is in reunifying with the child. [Citations.] The parental interest in reunification is distinguished from a relative's 'separate interest' in preferential placement consideration or in having a relationship with the child. [Citation.]" (In re A.K. (2017) 12 Cal.App.5th 492, 499, original italics.) Because a parent's interest is reunification, "a parent does not have standing to raise relative placement issues on appeal, where the parent's reunification services have been terminated. [Citation.]" (Ibid.; see also In re Jayden M. (2014) 228 Cal.App.4th 1452, 1460 [after termination of reunification services, parents could not challenge juvenile court's ruling denying child's placement with relatives]; Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1035 (Cesar V.) [father, who stipulated to termination of his services, lacked standing to appeal juvenile court's refusal to place child with paternal grandmother under relative placement preference].)
In this instance, father's reunification services were terminated at the 12-month review hearing in September 2017. Father therefore cannot establish that his "rights and interest in reunification are injuriously affected" by any failure to consider relatives for placement. (In re A.K., supra, 12 Cal.App.5th at p. 499; see also Cesar V., supra, 91 Cal.App.4th at p. 1035.) We conclude therefore that father lacks standing to raise the relative placement challenge here. Since father lacked standing to assert this issue—and the remaining issue, as we have discussed, ante, is moot—the appeal is subject to being dismissed. (In re D.M. (2012) 205 Cal.App.4th 283, 294 [where appellant in dependency proceeding lacks standing, appeal is subject to dismissal].)
Even were we to conclude that father had standing to assert this challenge, he would nonetheless be procedurally barred. Father did not raise the issue of relative placement preference below. Indeed, the 366.26 hearing proceeded as an uncontested matter, and father did not personally appear at the hearing. He therefore forfeited any challenge. (See In re A.K., supra, 12 Cal.App.5th at p. 501 [father's appellate claim based upon relative placement preference, including claim that juvenile court did not make factual findings or hold a relative placement hearing under § 361.3, held forfeited; father had raised no objection below].)
C. Conclusion
Father's challenge based upon whether substantial evidence supported the juvenile court's January 2018 finding of the minors' adoptability is moot. Father lacks standing to assert a challenge concerning the relative placement preference after termination of reunification services. We will therefore dismiss the appeal.
III. DISPOSITION
The appeal is dismissed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.