Opinion
H043699
04-11-2017
In re J.G., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. R.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 114-JD22971)
Mother (R.G.) appeals from the juvenile court's findings and orders following a contested 18-month review hearing terminating reunification services. Mother argues the juvenile court abused its discretion when it appointed child's (J.G., born 1999) foster parent as her educational rights holder and denied mother's request to represent herself in the dependency proceedings. Mother further argues there is insufficient evidence supporting the juvenile court's findings that returning child to her care would create a substantial risk of detriment to child's physical or emotional well-being and that the Santa Clara County Department of Family and Children's Services (Department) provided her with reasonable services. While this appeal was pending, the juvenile court in San Francisco County returned child to mother's care and dismissed the dependency proceeding. For the reasons set forth below, we agree with the Department that the appeal is now moot and dismissal is proper under these circumstances
BACKGROUND
1. Background
This is mother's fifth appeal in this dependency case. The background of child's dependency can be found in this court's unpublished opinions in mother's prior appeals (In re J.G. (Apr. 11, 2016, H041974) [nonpub. opn.]; In re J.G. (Feb. 9, 2017, H042955) [nonpub. opn.]; In re J.G. (Apr. 11, 2017, H043356, H043278) [nonpub. opn.]). We therefore dispense with a recitation of the history of the case and focus on the facts relevant to the issues mother has raised in this appeal.
On December 5, 2016, we took judicial notice of the records in case Nos. H041974, H043278, H043356, and H042955.
2. The 18-Month Status Review Report
On May 4, 2016, the Department prepared an 18-month status review report. The report recommended terminating mother's reunification services, adopting a permanent planned living arrangement for child, and transferring the case to San Francisco County where the family now resided. Child was doing well in her foster home placement and was doing well in school. She was working on her goals outlined in her individualized education program (IEP). She had missed a scheduled American College Testing (ACT) test, a college readiness assessment, but was being rescheduled to take the exam. She missed the test after she had trouble locating the exam room. Later, she admitted she did not feel ready to take the exam. She had been given access to study guides. She had been receiving therapy and had participated in individual counseling with a counselor at her school's wellness center.
Child's foster parent expressed concerns with child's manipulative behavior. Child and mother still struggled with their relationship. Child had recently heard that mother had told a friend that if child did not return home in March 2016, she would not see child again until she turned 21 years old. Child said mother blamed her for her current living situation and persisted in asking her about her schoolwork.
Mother had e-mailed the social worker to request that child participate in neurofeedback therapy as recommended by child's physician. The social worker had discussed the therapy with child, and child declined to participate. The social worker had explained to mother that due to child's age, child would not be forced to participate in mental health services she did not agree with.
The report summarized the services provided to the family. Mother had been ordered to complete individual counseling, which she had not completed. Mother reported she did not have health insurance that would cover the cost of therapy, and she would not qualify for Medi-Cal due to the assets she owned. The San Francisco Mental Health Access Line was unable to provide mother with services or referrals, because the providers they work with use either insurance or Medi-Cal. The social worker had discussed options with mother for arranging therapy through private therapists with mother and had investigated several potential therapists in San Francisco. There were barriers to finding qualified therapists, including funding, lack of therapist experience with personality disorders, and overall lack of qualified therapists. The Department had located one therapist and was able to pay $90 per counseling session, but mother would have to pay an additional $40 per session to cover the remainder of the fee. Mother had indicated she could not afford to pay the additional $40. Mother had found two therapists, but the two therapists were unwilling to work with the Department and the dependency court. The social worker had attempted to contact mother's prior therapist for assistance, but the prior therapist did not respond to the social worker's messages.
The family was participating in family counseling and had completed approximately 14 sessions. The sessions had been positive, but child had some concerns. Child thought mother used some of the sessions to complain about the dependency system. Mother had voluntarily attended a six-week, 12-hour parent education program.
Mother and child had taken part in weekly visits, which were going well. The court had ordered weekly one-hour visits, but mother and child were visiting for two hours each week to make up for missed visitation time. The social worker believed the missed visitation time had been made up but was going to keep the visitation at two hours. Mother admitted she had been visiting child unsupervised several times a week. After working with mother and child, the social worker approved unsupervised visits between mother and child.
The social worker opined it would be detrimental to return child to mother's care. She believed mother had made only minimal progress in addressing the issues that brought child within the dependency system. Despite participating in services, mother continued to lack insight and minimized the impact her behavior had on child. Mother had threatened child and blamed child for her financial state. Mother had initially arranged for unsupervised visitation without the Department's knowledge and had told child to keep information from the social worker. Additionally, child wanted to remain in her out-of-home placement.
3. Limitations on Mother's Educational Rights
On March 9, 2016, the juvenile court signed an order designating child's then foster parent, C.M., as child's educational rights holder. On March 22, 2016, the Department filed a petition under Welfare and Institutions Code section 388 asking the court to appoint R.J., child's new foster parent, as her educational rights holder. The petition explained that the current foster parent had already connected with child's school and was monitoring child's progress. On March 26, 2016, the juvenile court provisionally granted the change over mother's objection.
Unspecified statutory references are to the Welfare and Institutions Code.
On June 7, 2016, the Department filed a response in support of its section 388 petition. Mother still opposed the appointment of child's current foster parent as her educational rights holder. Mother requested Alex R., a family friend, be appointed as child's educational rights holder should the court decline to reinstate her rights. Alex R. had known child since she was adopted by mother almost 17 years ago. The social worker spoke with Alex R. to assess his ability to hold child's educational rights. Alex R. stated he did not understand why mother's educational rights were limited, and he believed mother had always been an appropriate caregiver to child. He said he was not particularly close with mother and did not see their relationship as being an issue. Despite Alex R.'s assurances, the social worker found he minimized the need for an alternate educational rights holder. Thus, the social worker assessed that mother may be able to manipulate Alex R. in order to gain access or control over child's education. The social worker did not recommend appointing Alex R. as child's educational rights holder.
The Department opposed reinstating mother's educational rights, because mother was unable to interact appropriately with child and the school. Mother continued to access child's academic information and interrogate child about her schoolwork. She also persisted in contacting school personnel even after her educational rights were limited. At one point, she attempted to schedule a meeting with child with the school's college counselor. Mother initially said the meeting was requested by the college counselor, which the college counselor denied.
While under the current foster parent's care, child had been late to school a few times, because she used public transportation. She had cut her study skills period four times since February 2016, but the social worker concluded the caregiver was not to blame. The Department recommended approving child's foster parent as her educational rights holder. The foster parent was familiar with the San Francisco School District and had previously held educational rights for other foster youth in her care. She was also experienced with IEPs.
4. The Marsden Hearing
On June 7, 2016, mother requested a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118. The court denied mother's Marsden motion. During the same hearing, mother asked to represent herself. The court denied mother's request, reasoning it would delay the proceedings. Mother responded that she was willing to proceed with self-representation that same day once given an opportunity to review discovery. The court again denied mother's request, stating it still believed that granting the request would delay the case.
5. The 18-Month Review Hearing
On June 7, 2016, the juvenile court held the contested 18-month review hearing and heard arguments on the Department's section 388 petition to limit mother's educational rights. The Department withdrew its section 388 petition as superfluous, because the court was required to consider child's educational rights at the status review hearing.
Kerri Avery, the social worker assigned to the case, testified. She stated that child's foster parent was in contact with the school and had met with child's counselor. Child had spent the night before her missed ACT exam at her current foster parent's home. The morning of the exam, the foster parent had ensured child was up and ready to get to the exam site with plenty of time. Child had said she knew how to get to the exam location and was comfortable taking public transportation. The social worker was unsure what steps the foster parent took to help child prepare for the exam.
Mother also testified at the hearing. She was disappointed that child had missed her ACT exam. Before her educational rights were limited, mother had gone to parent meetings and had organized a group to attend test preparation classes. Mother believed child's grades dropped after her former foster parent was appointed as the educational rights holder. Mother was concerned with the impact child's absences had on her grades. She was also concerned about child's IEP. Child's prior IEP gave her two weeks to make up missing assignments or tests. Mother was unsure what child's current IEP allowed, but child had disclosed to her that her teachers would not permit her to make up work for missed classes.
Mother did not agree with the Department's recommendation to terminate reunification services. She did not believe the Department had facilitated visits. She had participated in family therapy with child but family therapy had been delayed when child was removed. Mother found family therapy to be useful. Mother had also voluntarily taken a parenting class, which she also found to be helpful. Mother and child had participated in unsupervised visits, which mother believed went well. Mother acknowledged the court had ordered her to participate in individual counseling, which she had not participated in.
a. The Juvenile Court's Decision
The juvenile court determined that returning child to mother's care would create a risk of detriment to child's emotional well-being. The court noted that a component of mother's case plan was individual counseling, which she did not complete. The court also determined that mother lacked insight into how her behavior impacted child. The court found a planned permanent living arrangement was the appropriate plan. The court also ordered mother's educational rights be limited, finding it did not believe mother understood how her involvement in child's education impacted her. Child's foster parent was appointed as child's educational rights holder. The court ordered the case transferred to San Francisco County.
DISCUSSION
On appeal, mother argues the juvenile court erred when it appointed the current foster parent as the educational rights holder and erred when it denied her request for self-representation. She further argues there was insufficient evidence of a substantial risk of detriment to child if child was returned to her care and insufficient evidence the Department provided her with reasonable services. While this appeal was pending, the juvenile court in San Francisco reunified mother with child and dismissed the dependency. We requested and received supplemental briefing on whether the juvenile court's dismissal of the dependency renders this appeal moot. We agree with the Department that mother's appeal should be dismissed.
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.' " ' " (In re N.S. (2016) 245 Cal.App.4th 53, 58.) Thus, "[a]n appellate court will dismiss an appeal when an event occurs that renders it impossible for the court to grant effective relief." (Id. at pp. 58-59.) As a general rule, termination of juvenile court jurisdiction renders an appeal from a previous order in the dependency proceedings moot (In re C.C. (2009) 172 Cal.App.4th 1481, 1488) because, even if the appellate court were to find reversible error, it could afford no direct relief. (In re Michelle M. (1992) 8 Cal.App.4th 326, 330.)
We find that we cannot grant mother effective relief. Child has been returned to mother's care. The dependency has been dismissed. There is no relief we can grant to mother if we were to find merit to her arguments on appeal.
Mother argues there are four reasons why the appeals are not moot. First, she argues that the San Francisco juvenile court's order dismissing the dependency is not yet final, and she still has the option to file a notice of appeal. Mother also argues she has two appeals from this same dependency case currently pending with Division One of the First District Court of Appeal. She claims that because these two pending appeals are not final, their resolution may have an effect on the appeal pending before us here.
In mother's supplemental letter brief, she acknowledges that two separate motions to dismiss were filed in these two pending appeals. --------
Neither of these two arguments have merit. Mother has not expressed any intent to appeal from the order dismissing the dependency and reunifying her with child. And it is speculative as to whether any appeal from this order would be successful, and what issues mother would raise on appeal. Furthermore, mother does not explain how or in what manner her appeals pending with the First District, which concern subsequent juvenile court orders, would impact this court's ability to grant relief in this appeal. In sum, mother's arguments alleviate none of the concerns regarding this court's present ability to afford her with effective relief due to the dismissal of the dependency.
Next, mother argues this court should exercise its discretion to resolve issues even when effective relief cannot be granted, because there remain material questions for this court to determine. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541 [a court may exercise discretion to resolve an issue when there remain "material questions for the court's determination"].) However, the issues presented in this appeal do not present material questions for this court to review. (Hartke v. Abbott (1930) 106 Cal.App. 388, 394 [material questions for court to review include issues if " 'left unreversed, will preclude the party against whom it is rendered as to a fact vital to his rights, such as to the validity of a contract upon which his rights are based . . . .' "].) For example, mother does not explain how a determination that the Department failed to provide reasonable services would affect her future rights.
Lastly, mother argues this court should consider the merits of her appeal because failing to do so would create the undesirable result of insulating erroneous rulings from appellate review. Although we are sympathetic to mother's argument, it still remains that this court cannot grant mother effective relief.
Thus, we find this appeal is moot.
DISPOSITION
The appeal is dismissed as moot.
/s/_________
Premo, J.
WE CONCUR: /s/_________
Rushing, P.J. /s/_________
Grover, J.