Opinion
F062040 Super. Ct. No. 515534
08-05-2011
In re E.S., a Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. DEBRA M., Defendant and Appellant.
Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. John P. Doering, County Counsel, and Carrie M. Stephens, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Cornell, Acting P.J., Detjen, J. and Franson, J.
APPEAL from a judgment of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge.
Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel for Plaintiff and Respondent.
Debra M. (mother) appeals from a juvenile court order resolving competing requests to modify (Welf. & Inst. Code, § 388) its existing visitation order for mother and her 21-month-old son, E. The juvenile court found changed circumstances and the child's best interests warranted setting aside an order for overnight visits in mother's home. Instead, the juvenile court ordered a minimum of two hours of weekly, monitored visitation.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Mother contends the juvenile court abused its discretion by not crafting an order ensuring E.'s safety while still allowing her to have the child in her care overnight. Respondent Stanislaus County Community Services Agency (agency) contends mother's appeal is moot in light of the juvenile court's subsequent orders, which mother did not contest. On review, we agree with the agency.
PROCEDURAL AND FACTUAL HISTORY
The underlying dependency proceedings began soon after E.'s June 2009 birth. His parents' substance abuse and previous loss of parental rights to other children, along with mother's bipolar disorder, led to E.'s detention and the juvenile court's exercise of dependency jurisdiction over him. In turn, the juvenile court adjudged E. a dependent child, removed him from parental custody, and ordered reunification services for the parents. Mother's many services included twice-monthly visits with E.
E.'s Special Needs
As time passed, it became clear that E. was a special needs child. First, he had special medical needs. He was diagnosed with a neurological condition due to his in utero drug exposure. There was also a concern that he might have a "lesser case" of Cerebral Palsy. By the age of six months, E. exhibited developmental delays in gross motor skills and self help. This led to his eligibility for Valley Mountain Regional Center (VMRC) services.
VMRC services initially included the services of a physical therapist to instruct mother and the foster parent on techniques to assist E.'s core-related and gross motor skills development. In addition, E. had extreme feeding issues, and there were concerns about his weight. As a result, a VMRC nutritionist worked with mother and the foster parent, educating them on the child's caloric needs and instructing them on the prescribed method for feeding him. There was conflicting evidence regarding whether E. was making progress once these services were in place or was further behind than was previously understood. In any event, more services were put into place for E. Later still, he was diagnosed as a "failure to thrive child."
Increased Visitation
In the spring of 2010, the juvenile court increased mother's visitation with E., based on mother's progress in reunification services. Among other things, mother was living at, and compliant in, a residential facility known as Redwood Family Center (Redwood). The juvenile court granted mother weekly visits and gave the agency discretion for overnight visits at Redwood. Overnight visits between mother and E. began in April 2010.
In the summer of 2010, there was a concern shared by some that mother did not fully grasp and/or accept the medical and developmental extremes E. experienced. The agency, however, viewed the situation differently and recommended that mother be granted a trial visit with E., as well as an additional six months for reunification services.
In August 2010, following a lengthy contested hearing, the parties stipulated that mother would have "two (2) consecutive overnights each week to occur during the weekdays and return to occur no later than Friday." In addition, the social worker had discretion "to increase [visits] to three (3) consecutive nights per week after a period of 30 days." The parties further stipulated to the following series of conditions:
"Social worker shall be authorized to enter the home at anytime to assess the child's safety.
"Mother to attend all California Children's Services and VMRC physical and occupational therapy appointments, assessments and medical appointments.
"Any new appointments with specialist shall be scheduled by mother. Mother to advise social worker and defacto parents of all appointments.
"Child's counsel shall prepare, and to be approved by all counsel, an instructional sheet to be placed in a journal for the child. The journal shall be exchanged each time an exchange of the child occurs so as to ensure continuity of care and information re: child's
health/medication/food/appointments/etc. The Public Health Nurse shall follow the case.
"Child's counsel to be advised seven (7) days in advance of any change in child's pediatric provider from Dr. Bolton.
"Mother to attend all of child's physical and occupational therapy appointments, at least half of which shall occur at mother's residence."
The juvenile court adopted the parties' stipulation as part of its order continuing the child's out-of-home placement and mother's reunification services. It also terminated the father's services.
Section 388 Petitions
A month later, an agency social worker intended to implement the third overnight visit and so notified E.'s attorney, Catherine Flores Hallinan. Hallinan disagreed and filed a section 388 request to change the court's order.
A party may petition the court to change, modify or set aside a prior order on grounds of change of circumstance or new evidence. (§ 388, subd. (a).) The party must also show that the proposed change would promote the best interests of the child. (§ 388, subd. (b); Cal. Rules of Court, rule 5.570.) Whether the juvenile court should modify a previously made order rests within its discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
According to Hallinan's supporting declaration, there were multiple problems with the care E. received from mother. The child consistently lost weight when he visited mother. According to journal entries, E.'s daily intake of water and formula while with mother was significantly less than what was deemed appropriate. Mother also appeared to have difficulty feeding the child and maintaining a strong structured schedule for the child as one of the service providers had instructed. In addition, mother forgot and missed several appointments for E., some of which were scheduled to occur at Redwood where mother continued to live.
The juvenile court set Hallinan's section 388 request for an October 2010 hearing and, in the interim, suspended the third night of successive overnight visits. Mother's attorney then filed a competing section 388 request.
In it, mother's attorney asked the court to lift its interim order and increase the length of the overnight visits or order a trial visit with mother at Redwood. According to mother's attorney, mother continued to be involved in her reunification services, had successful overnight visits with E. and denied the allegations contained in Hallinan's section 388 request. At that time, the agency social worker continued to support mother's position and recommended a trial visit.
However, in a report to the court, the social worker acknowledged he had some concerns regarding mother's conduct and E.'s overall development. A Court Appointed Special Advocate for E. also submitted a report recommending against a trial visit.
In October 2010, the juvenile court continued the hearing on Hallinan's section 388 request and set mother's section 388 request to be heard at the same time. Over mother's objection, the court also continued its interim order suspending the third night of overnight visits.
Proceedings on the Section 388 Requests
In December 2010, the hearing on the competing section 388 requests commenced with testimony from numerous witnesses over several days. During that period, the agency changed its recommendation to the juvenile court. The agency urged the court to terminate services for mother based on the evidence presented so far and the fact that the statutory 18-month maximum for reunification services had elapsed by that point in time.
The agency's new recommendation led the juvenile court to continue the section 388 hearing into 2011. The parties also agreed that the court could consider the testimony presented on the section 388 requests for purposes of its 18-month dependency status review (§ 366.22) which would follow.
In addition, attorney Hallinan filed a second section 388 request based on the evidence presented so far. She asked the court to terminate all overnight visits. According to Hallinan's request, the evidence presented so far showed mother appeared unable to place E.'s needs above her own and made poor choices, placing E. at risk of harm. Mother was not making and keeping medical and therapy appointments for E. E. was also not consistently receiving the nutrition he required while he was with mother. Although mother had testified it was a matter of cost, there was other evidence that Redwood had acquired the nutritional product for mother to give to E.
The juvenile court expanded the scope of the ongoing hearing to include Hallinan's new section 388 request. The juvenile court also modified its August order regarding E.'s medical appointments so that the defacto parent, not mother, would make all such appointments.
The juvenile court heard additional testimony on the competing section 388 requests over many days between January and early March 2011. Meanwhile, in February 2011, mother left Redwood. She had stopped complying with her contract and was asked to leave. As a result, the court suspended all overnight visits until mother had housing that the agency could approve. It also allowed mother to amend her section 388 request for a trial visit to begin at "other approved housing" rather than at Redwood. Later testimony revealed mother stopped visiting E. after she left Redwood. The court had authorized, in the interim, a minimum of weekly, two-hour monitored visits.
Ruling on Section 388 Requests
When the hearings on the competing section 388 requests came to a close in early March, the juvenile court essentially granted attorney Hallinan's requests and denied mother's request. It made numerous factual findings, including determining that changed circumstances and E.'s best interests warranted suspending the third successive overnight visit, denying mother a trial visit, and suspending all of mother's overnight visits. The court added, because mother still did not have stable housing, mother's visits would remain monitored at the agency for a weekly minimum of two hours until there was an assessment of wherever she was going to live. Within days, mother filed her notice of appeal, challenging the denial of her request for a trial visit.
Ruling on 18-Month Dependency Status Review
A few weeks after mother filed her notice of appeal, the juvenile court concluded its 18-month review of E.'s dependency status (§ 366.22). The juvenile court found that return of E. to either one of his parents would create a substantial risk of detriment to his safety and well-being. It also found that although mother regularly participated in her court-ordered treatment plan, she failed to make substantive progress. In addition, the court found the evidence overwhelming that mother had not shown she had the ability to address E.'s very special needs. Consequently, the juvenile court terminated mother's reunification services, limited her visitation to twice a month, one-hour visits and set a section 366.26 hearing to select and implement a permanent plan for E.
We take judicial notice of the record prepared in F062146, D.M. v. Superior Court and our file in that matter. (Evid. Code, § 452, subd. (d).)
Mother's trial counsel later filed a notice of intent to seek extraordinary writ review of the juvenile court's setting order. However, neither mother's attorney nor mother, acting in propria persona, filed a petition for extraordinary writ. This court in turn dismissed the writ action as abandoned. Consequently, the juvenile court's orders terminating services, further limiting visitation, and setting the section 366.26 hearing are now final.
DISCUSSION
Mother contends the juvenile court abused its discretion when it suspended her overnight visits with E. In her view, the court should have fashioned a solution that preserved the child's opportunity to bond with and ultimately reunify with her, while also protecting the child's health. In the process, mother does not dispute the numerous factual findings the juvenile court made against her and in favor of its ruling.
The agency counters that this appeal is moot given the juvenile court's subsequent order terminating reunification services and mother's abandonment of her writ remedy to challenge that order. Mother argues otherwise, claiming the court's order suspending overnight visits adversely affected her ability to bond and reunify with E. or at least show at a future permanency planning hearing that E. would benefit from a continuing parent/child relationship with her (§ 366.26, subd. (c)(1)(B)(i)).
It is the function of an appellate court to decide actual controversies by a judgment which can be carried into effect. When no effective relief can be granted, an appeal is moot and will be dismissed. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.) We conclude that mother's acquiescence to the juvenile court's orders terminating her reunification services and further limiting her visitation rights, which are now final, has rendered this appeal moot. (See In re Jessica K. (2000) 79 Cal.App.4th 1313, 1316.) Mother could have filed an extraordinary writ petition to preserve her right to appellate review in this case. (Id. at p. 1317.) However, she did not.
We reject mother's argument that the purported error in the juvenile court's section 388 ruling infected the outcome of the subsequent proceedings such that her appeal is not moot. In arguing she could not establish her ability to bond and reunify with E. absent overnight visitation, mother overlooks several important points. One, visitation was by no means the only reunification service she received. Two, she failed to reunify because she failed to make substantive progress in her court-ordered treatment plan. Three, the juvenile court's section 388 ruling was unrelated to the issue of parent/child bonding. Four, the court did not terminate her visitation so as to erode any meaningful relationship. (See In re Dylan T. (1998) 65 Cal.App.4th 765, 769.)
Out of an abundance of caution, we add that were we to exercise our discretion and review mother's appellate claim on its merits (In re William M. (1970) 3 Cal.3d 16, 23-24), we would not hesitate to affirm the juvenile court's ruling. As previously stated, mother does not challenge the numerous factual findings the juvenile court made in finding changed circumstances and E.'s best interests warranted suspending the overnight visits. She also does not dispute that she voluntarily left Redwood and had no stable home thereafter that the agency could assess for future overnight visits.
In addition, for a reviewing court to conclude there was an abuse of discretion, the proof offered must be uncontradicted and unimpeached so that discretion could be exercised only in one way, compelling a finding in favor of the appellant as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571.) However, mother's appellate argument relies almost exclusively on her own testimony, bypassing the wealth of conflicting testimony from more than a dozen witnesses regarding mother's inability to follow instructions and practice what she had been taught in order to provide adequate care for E. Thus, we would find no abuse of discretion.
DISPOSITION
This appeal is dismissed.