Opinion
D076139
11-06-2019
In re G.O., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. G.O. (Minor), Defendant and Appellant, V.V. Defendant and Respondent.
Joanne D. Willis Newton, under appointment by the Court of Appeal for Defendant and Appellant G.O. Clare M. Lemon, under appointment by the Court of Appeal for Defendant and Respondent V.V. Thomas E. Montgomery, County Counsel and Lisa Maldonado, Chief Deputy County Counsel for Plaintiff 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. J519705) APPEAL from an order of the Superior Court of San Diego County, Carolyn Caietti, Judge. Reversed and remanded with instructions. Joanne D. Willis Newton, under appointment by the Court of Appeal for Defendant and Appellant G.O. Clare M. Lemon, under appointment by the Court of Appeal for Defendant and Respondent V.V. Thomas E. Montgomery, County Counsel and Lisa Maldonado, Chief Deputy County Counsel for Plaintiff and Respondent.
The minor, G.O., appeals from an order issued by the juvenile court at the 12-month review hearing granting her mother, V.V. (Mother), continued reunification services. She argues Mother should not have been granted additional services because the juvenile court found Mother had made "adequate" progress in resolving the problems that led to removal, while Welfare and Institutions Code section 366.21, subdivision (g)(1)(B), requires a finding that the parent has made "significant" progress. Mother contends the issue is moot as she has already received the services and that the finding was sufficient to support the juvenile court's order. We conclude the issue is not moot and the juvenile court did not make a clear finding as to whether Mother's progress was significant. We therefore reverse the order and remand the matter to the juvenile court with instructions to make a direct and affirmative finding as to whether Mother made the requisite significant progress.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
G.O. came to the attention of the San Diego County Health and Human Services Agency (the Agency) in March 2018. She was less than one year old at the time.
Mother had been placed on a section 5150 hold in a behavioral health unit and had a history of untreated mental health illness, including depression, bipolar disorder, and anxiety. After being discharged, Mother became upset while riding in a car with the maternal grandmother and G.O. and threw a hard-covered book. The book hit G.O. in the face, leaving a red mark that extended from her brow to her nose near her left eye. Mother also grabbed the steering wheel multiple times and nearly caused a crash. She admitted her actions but did not seem to understand that she had put G.O. at risk of serious injury. After the incident, Mother told a police officer that she wanted to die and asked him to shoot her. The officer noted that Mother needed a psychiatric evaluation. The Agency attempted to create a new safety plan with Mother, but she refused.
On March 22, 2018, the Agency filed a juvenile dependency petition on behalf of G.O. Therein, the Agency alleged removal was appropriate pursuant to section 300, subdivision (b), as there was a substantial risk G.O. would suffer serious harm if left in Mother's care. The juvenile court found the Agency had made a prima facie showing on the petition and detained G.O. The court granted Mother liberal, supervised visitation and ordered that the Agency provide Mother with voluntary services.
The Agency provided Mother with referrals for housing, mental health, parenting, and substance abuse programs. Mother engaged in these services and began taking medication. At the jurisdiction and disposition hearing in April, the Agency recommended that Mother receive reunification services, and the juvenile court ordered that the Agency provide services.
In October, the Agency reported Mother was making progress in her case plan. She was on track to complete a parenting class by November and had begun making progress in individual therapy. Mother had secured a job and housing. She visited with G.O. regularly and G.O. responded positively to her nurturing care and affection. However, that same month, Mother admitted to using marijuana and the Agency admonished her that she needed to remain clean and sober. At the six-month review hearing, the Agency recommended continued services for Mother and the juvenile court once again accepted the recommendation.
By the following April, Mother had fallen out of compliance with her case plan. She refused to seek substance abuse treatment for her marijuana use, was not in compliance with her medication treatment plan, and was not attending therapy regularly. At the 12-month review hearing on April 22, 2019, the Agency recommended the juvenile court terminate Mother's reunification services and set a section 366.26 permanency hearing. Mother objected, and the juvenile court set the matter for trial on June 25, 2019. Before concluding the hearing, the juvenile court addressed Mother and stated:
"I want to encourage you because the trial is going to be about two months away, I want to encourage you to get back into services, and I don't know if that's going to change things, but it certainly could help, okay? The Court is far less likely to follow the recommendation if you are engaged in services and demonstrating that you're on your medication and you're testing and you are doing all the things that are in the reunification plan, okay?"
Mother heeded the court's advice. In the two months before trial, she stopped using marijuana and consistently tested negative. She started seeing a therapist again and remained compliant with her medication. Mother's therapist reported Mother was consistent and on time for her appointments and that therapy was going well. She said Mother was more mindful of her actions and condition, understood that she needed to remain on her medication, and also understood that she only had a short period of time to reunify with G.O. Mother continued to visit with G.O. regularly and the Agency reported the visits with G.O. were "going great."
Mother also began the substance abuse treatment program. However, there was some confusion over whether she could be in both programs at once, causing her to miss an appointment with her previous therapist. Mother stopped taking her previous medications and obtained new prescriptions and medications from a psychiatrist associated with the new program.
In a report filed before the June 25, 2019 trial, the Agency concluded Mother had not made sufficient progress to allow G.O. to safely return to her care. The Agency stated, "Although [Mother] has taken the necessary steps to get back on track she still has [a] ways to go in order to keep [G.O.] safe." Accordingly, the Agency maintained its recommendation that the juvenile court terminate services and set a section 366.26 permanency hearing.
Mother testified at the trial. She admitted she had previously become inconsistent with her services, but explained that she was now on medication, in therapy, and following her case plan. She said the previous hearing had made her realize she was close to losing her daughter and that she did not want that to happen. The juvenile court found Mother's testimony credible and persuasive but hesitated to find that she had made substantial progress towards alleviating the causes that led to G.O.'s removal.
The court stated, "So I do find you've consistently and regularly visited your child. I find you've made - see my hesitation to say it's 'substantial.' I think you've made progress. You've made progress, but you can't wait until right before the next court hearing to get it together. I'm expecting that from what I've seen, and I do see the point by minor's counsel, too little, too late." The court continued, "Hopefully its finally clicked in your brain that you have to continue to make progress" and Mother confirmed that she understood. The court concluded Mother had the capacity to meet the goals of her case plan and that there was a substantial probability G.O. could be returned to Mother's care by the 18-month review date. It therefore declined to adopt the Agency's recommendation to terminate services.
The court then went through the written recommendations the Agency had submitted. Number 11, as submitted by the Agency, read "The extent of progress made by the mother toward alleviating or mitigating the causes necessitating placement has been minimal." The court said, "I would say No. 11 would be 'adequate.' I would say her progress is more than minimal, it's kind of in between minimal and adequate. I mean, I'll say adequate."
The associated written order includes a finding that "there is a substantial probability that the child will be returned to the physical custody of her mother." Below, in the orders portions, it states "[t]he extent of progress made by the mother toward alleviating or mitigating the causes necessitating placement has been adequate." The order grants Mother reunification services for "three more months."
DISCUSSION
G.O. asserts the juvenile court should not have granted Mother additional services as it did not make the requisite finding that Mother had made "significant" progress in alleviating the causes necessitating removal. Mother contends the appeal is moot as the additional services have already been rendered. The Agency joins in the briefing submitted by G.O. and also asserts the appeal is not moot. I. The Issue is Not Moot
An appeal becomes moot when the action no longer presents a justiciable controversy and the appellate court is unable to grant effective relief. (In re Christina A. (2001) 91 Cal.App.4th 1153, 1158.) When the questions raised on appeal become moot, such that a reversal from the appellate court would have no practical effect, the appellate court should dismiss the appeal unless it involves a question of continuing public importance that is capable of repetition yet evading review. (In re Dani R. (2001) 89 Cal.App.4th 402, 404; In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404.) In the juvenile dependency context, the appellate court decides whether an appeal has been rendered moot, and whether to exercise this discretion, on a case-by-case basis. (In re Dani R., supra, at p. 404.)
Here, the juvenile court granted Mother an additional three months of services on June 25, 2019. According to the order, the additional services ended on September 25, 2019, consistent with the applicable statutory maximum of 18 months of services. (§ 361.5, subd. (a)(3); cf. T.J. v. Sup. Ct. (2018) 21 Cal.App.5th 1229, 1251-1254 [award of services beyond the 18-month statutory maximum appropriate in light of significant delays in providing services].) As Mother contends, we cannot take back the reunification services she has already received. (See In re Pablo D. (1998) 67 Cal.App.4th 759, 760-761 [appeal moot where reunification services at issue were already rendered].)
The Agency contends it is still obligated to render services to Mother. We take no position on that assertion as we conclude the appeal is not moot in any event.
However, G.O. and the Agency assert this court can still provide some relief to G.O. by expediting permanency. We agree. Had the juvenile court declined to order additional reunification services for Mother at the June 25, 2019 hearing, the statute would have required the court to set a section 366.26 hearing within 120 days, absent some other exception. (See 366.21, subd. (g)(1)-(5) [after 12 months, court shall continue the case and order additional reunification services or set a 366.26 hearing].) Instead, the juvenile court set the matter for an 18-month permanency review hearing pursuant to section 366.22. Thereafter, the juvenile court set the matter for trial on the issue of return. If we were to reverse the juvenile court's June 25 order granting Mother additional reunification services, the juvenile court could instead set a section 366.26 hearing in accordance with section 366.21, subdivision (g)(4). We therefore decline to dismiss the appeal as moot and turn instead to the merits. II. The Juvenile Court Did Not Make the Requisite "Significant Progress" Finding
We hereby grant Mother's request that we take judicial notice of the juvenile court's recent order, dated September 25, 2019. It is appropriate for an appellate court to take judicial notice of such records to show whether events occurring during the pendency of the appeal have rendered the appeal moot. (See Evid. Code, §§ 452, 459; In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1417.) --------
Once the juvenile court determined G.O. could not be safely returned to Mother's care at the 12-month permanency review hearing, section 366.21, subdivision (g), required the court to either set a section 366.26 hearing within 120 days or continue the case under one of the enumerated exceptions. (§ 366.21, subd. (g); § 361.5, subd. (a)(1)(B).) As relevant here, section 366.21, subdivision (g)(1), allows a juvenile court to "[c]ontinue the case for up to six months for a permanency review hearing, provided that the hearing shall occur within 18 months of the date the child was originally taken from the physical custody of his or her parent" if the court "finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent." To make that finding, though, the court has to find all of the following:
"(A) That the parent or legal guardian has consistently and regularly contacted and visited with the child.
(B) That the parent or legal guardian has made significant progress in resolving problems that led to the child's removal from the home.
(C) The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs." (Ibid.)
G.O. contends the juvenile court's order must be reversed because the court expressly declined to find Mother had made "significant progress" in resolving the issues that led to removal. As an initial matter, we note that G.O. at times uses the words "significant" and "substantial" interchangeably. The statute required the juvenile court to find Mother's progress had been "significant," but the juvenile court hesitated to define Mother's progress as "substantial." (See § 366.21, subd. (g)(1)(B).)
In any event, unlike the cases G.O. relies upon, the juvenile court did not cross out the word substantial (or significant) or affirmatively state that it would not make such a finding. (See, e.g., In re B. J. B. (1986) 185 Cal.App.3d 1201, 1203-1205 [reversal warranted where the juvenile court expressly declined to make and crossed out a finding required by the statute].) Instead, here, the juvenile court hesitated to use the word "substantial," explained its hesitance to Mother but also indicated that Mother had made progress, particularly since the last hearing, and then ordered additional reunification services based on the findings it had made. Later, the court affirmatively declined to find Mother's progress was "minimal" and instead found it was "adequate." Mother asserts the court's use of "adequate" in this context can be interpreted as "sufficient for the specific requirements of section 366.21, good enough, lawfully and reasonably sufficient." Considering the totality of the juvenile court's statements, we agree it is at least feasible that the juvenile court meant adequate to meet the statutory requirement, as Mother contends.
G.O. asserts the legislature expressly required a finding of "substantial progress," that the juvenile court was well aware of the statutory requirement, and that the court's finding that Mother's progress was instead "adequate" is therefore insufficient. As discussed, the statute actually requires "significant" progress and the juvenile court did not expressly decline to make that finding. Moreover, the court did find that "there is a substantial probability that the child will be returned to the physical custody of her mother," and the court could only make that finding under the statute if it also found that Mother had made significant progress. (See § 366.21, subd. (g)(1).) That said, we agree that "adequate" is not "significant," and the juvenile court did not expressly find that Mother had made significant progress. At best, the court's finding is ambiguous.
Mother asserts we should affirm the order, despite the absence of a clear significant progress finding because substantial evidence would support such a finding in any event. The appellate court did essentially as Mother suggests in In re Corienna G. (1989) 213 Cal.App.3d 73, and affirmed an order after concluding substantial evidence would "amply have supported" a required finding that the juvenile court neglected to make. (Id. at pp. 83-84.) To the contrary, here, the juvenile court did not just neglect to make the finding, it struggled with it, and there is substantial evidence to support either a finding that Mother did or did not make significant progress. Thus, in this case, we conclude the better course is to remand the matter to the juvenile court to make the finding in the first instance. (See In re Casey D. (1999) 70 Cal.App.4th 38, 52-53 [it is the trial court's role to weigh the evidence and appellate courts do not have the power to assess credibility or resolve evidentiary conflicts]; In re Marquis D. (1995) 38 Cal.App.4th 1813, 1830 [remanding for the court to make proper findings].)
We therefore reverse the juvenile court's June 25, 2019 order granting Mother additional reunification services and remand the matter with instructions for the juvenile court to make a specific finding as to whether Mother's progress was "significant" as required by section 366.21, subdivision (g)(1)(B), and to enter any further orders necessary in light of that finding.
DISPOSITION
The juvenile court's June 25, 2019 order granting Mother additional reunification services is reversed. The matter is remanded to the juvenile court with instructions for the juvenile court to make an affirmative finding as to whether Mother had "made significant progress in resolving problems that led to the child's removal from the home" by June 25, 2019, as required by section 366.21, subdivision (g)(1)(B), and to enter any further orders necessary consistent with this opinion and the finding the court makes.
HUFFMAN, J. WE CONCUR: BENKE, Acting P. J. GUERRERO, J.