In re L.S. CA5 ( 2016 )

Filed 2/1/16 In re L.S. CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re L.S. et al., Persons Coming Under
the Juvenile Court Law.
FRESNO COUNTY DEPARTMENT OF F071452
HUMAN SERVICES, (Fresno Super. Ct. Nos. 05CEJ300063-3,
05CEJ300063-6, 05CEJ300063-7,
Plaintiff and Respondent, 05CEJ300063-8)
v. OPINION
MARY H.,
Defendant and Appellant.
THE COURT*
APPEAL from orders of the Superior Court of Fresno County. Brian M. Arax,
Judge.
Mara L. Bernstein, under appointment by the Court of Appeal, for Defendant and
Appellant.
Daniel C. Cederborg, County Counsel, and David F. Rodriguez, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
* Before Kane, Acting P.J., Detjen, J., and Franson, J.
Appellant Mary H. (mother) appeals from a juvenile court order granting a petition
for modification under Welfare and Institutions Code section 3881 filed by the Fresno
County Department of Social Services (department) asking the juvenile court to modify
her visits with her four sons by changing them from unsupervised to supervised visits.
She contends the juvenile court erred in granting the petition without conducting an
evidentiary hearing. We conclude mother’s appeal is moot in light of the juvenile court’s
subsequent visitation order, which mother did not contest. We dismiss the appeal.
PROCEDURAL AND FACTUAL SUMMARY
Mother’s four sons were taken into protective custody by the department in
December 2013, after she was arrested for domestic violence with her live-in boyfriend,
O.C. At the time, the boys ranged in age from five to 13 years. In March 2014, the
juvenile court exercised its dependency jurisdiction over the boys and ordered
reunification services for mother. The court ordered reasonable supervised visitation and
granted the department discretion to increase mother’s visits to unsupervised, liberal, and
extended visits. The department placed the boys in foster care.
The juvenile court continued reunification services for mother up to the 18-month
review hearing, which it scheduled for May 2015. During the reunification period,
mother progressed to unsupervised visitation three times. Each time, the department
subsequently filed a section 388 petition asking the juvenile court to reinstate supervised
visitation. The first petition, filed in July 2014, was prompted by mother having
unauthorized contact with her oldest son. The court granted the petition and mother
resumed supervised visitation. In late July 2014, the department approved unsupervised
visitation for mother and scheduled her first unsupervised visit for August 9, 2014.
Following that visit, mother’s oldest son told his foster mother that O.C. was living with
1 All further statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.
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mother. On August 20, 2014, the department filed its second section 388 petition, which
the juvenile court granted. By October 2014, mother had progressed once again to
unsupervised visitation, and in January 2015, she was having liberal visits from Friday
afternoon to Sunday morning. However, a number of issues surrounding visitation arose.
These issues were set forth in detail in the department’s third section 388 petition, which
it filed on March 18, 2015.
One of the issues raised by the department concerned mother’s use of food
vouchers. The department gave her a $30 food voucher for every weekend visit. The
foster family agency also gave her a $25 McDonalds card. However, mother began a
pattern of accepting the vouchers and then cancelling visits. She also requested
additional money, claiming she was not given enough to feed the children. However, she
refused assistance with meal planning, and money management, and reportedly
purchased a $200 pair of shoes for one of her sons.
Another issue concerned a report the department received on March 6, 2015, that
mother’s boyfriend inappropriately touched her daughters,2 physically abused her in front
of the children, and stole from her. According to the report, mother had gone to Catholic
Charities to request food assistance, and added her adult daughter, and her two children in
the request. Mother reportedly told the staff at the Catholic Charities that she walked in
on her boyfriend having an erection and her two daughters with their skirts down. A
police officer and emergency response social worker responded to mother’s house.
Mother denied having a boyfriend or making that statement. On March 13, 2015, mother
contacted Care Line, and stated the children did not listen to her, and that she was ill, and
could not continue caring for them. She said she needed to go to the hospital and was
going to leave the children on the porch. A social worker and police officer went to her
2 It is unclear as to whom the “daughters” refer. According to the record, mother
has one adult daughter.
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home and removed the children. The police officer said she was very familiar with
mother’s “antics” as she had responded to her home the week before.
On March 25, 2015, the juvenile court convened a hearing on the department’s
section 388 petition. Mother did not personally appear. She was represented by a
substitute attorney who explained that mother was in a batterer’s treatment class. The
court excused mother’s absence. Mother’s attorney objected to the department’s request
to alter visitation and requested a contested hearing. The court set a settlement
conference hearing for April 7, 2015 and a contested hearing on the petition for April 15,
2015. The court ordered mother to appear and asked her attorney to “make reasonable
efforts [from her office] to give trial right advisements to the consequences of not
appearing.” Her attorney said she would and stated that mother’s appointed counsel was
in regular contact with her. The court deemed the trial advisements given. The court also
issued an interim order resuming supervised visitation in light of the sexual abuse
allegations.
On April 7, 2015, mother did not appear at the settlement conference hearing. Her
attorney said she spoke with mother once since the matter was set for a contested hearing.
She did not know where mother was, but had told mother it was important for her to
attend her classes. Her attorney asked the court to confirm the matter for trial. County
counsel and minors’ counsel asked the court to rule on the petition.
The juvenile court granted the petition and reduced mother’s visitation to
reasonable supervised visitation. The court also granted the department discretion to
advance mother’s visitation to liberal and up to extended visitation with 10 days notice.
The court vacated the April 15, 2015 hearing.
On August 3, 2015, while mother’s appeal was pending in this court, the juvenile
court terminated her reunification services at an 18-month review hearing, and ordered
monthly supervised visitation. The juvenile court also set a section 366.26 hearing.
4
Mother did not challenge visitation by filing an extraordinary writ petition. (Cal. Rules
of Court, rule 8.450-8.452.)
We invited the parties to file simultaneous letter briefs on whether the appeal is
moot, since we cannot render any effectual relief in light of the subsequent visitation
order which is now final and binding. Mother opposed dismissal of the appeal as moot,
arguing the juvenile court’s error in granting the department’s section 388 petition
infected the outcome of subsequent proceedings. Alternatively, she contends the juvenile
court’s error constituted an issue of continuing public importance that is capable of
repetition yet evading review.
We conclude the appeal is moot.3
DISCUSSION
Mother contends the juvenile court erred in ruling on the department’s section 388
petition without conducting an evidentiary hearing, and that its ruling had prejudicial
effect.
Section 388 provides in relevant part:
“(a)(1) Any parent or other person having an interest in a child who is a
dependent child of the juvenile court ... may, upon grounds of change of
circumstance or new evidence, petition the court ... for a hearing to change,
modify, or set aside any order of court previously made .... The petition
shall be verified and ... shall set forth in concise language any change of
circumstance or new evidence that is alleged to require the change of order
.... [¶] ... [¶] (d) If it appears that the best interests of the child … may be
promoted by the proposed change of order ... the court shall order that a
hearing be held ....”
Mother contends the juvenile court’s failure to conduct a hearing violated her due
process rights to notice, an opportunity to be heard, and an opportunity to cross-examine
3 We take judicial notice of the juvenile court’s August 3, 2015, minute order
terminating mother’s reunification services, setting a section 366.26 hearing, and
reducing visitation to one supervised visit a month. (Evid. Code, §§ 455, 459.)
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the department’s social worker and hearsay declarants. She further contends the court’s
error was prejudicial because it severely curtailed her visitation rights during the critical
period between the 12- and 18-month review hearings and negatively impacted her ability
to reunify with her children. She seeks reversal of the juvenile court’s order granting the
department’s section 388 petition, with directions for the juvenile court to reinstate
unsupervised visitation, or to conduct a contested hearing on the department’s petition.
Subsequent to the juvenile court’s order appealed from, the juvenile court
terminated mother’s reunification services and set a section 366.26 hearing. At that same
hearing, the juvenile court ordered supervised visitation which mother did not challenge.
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 preserved her appeal
in this case by filing an extraordinary writ petition. (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 re Dylan T. (1998) 65 Cal.App.4th 765, 769.) In arguing that she
could not reunify with her sons absent unsupervised visitation, mother overlooks two
important points. One, visitation was not the only reunification service that she received.
Secondly, the juvenile court granted the department discretion to increase her visitation to
unsupervised visits. Thus, rather than having an erosive effect on mother’s relationship
with her sons, it allowed for advancement to unsupervised visitation at the department’s
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discretion. If mother was unable to accomplish that, as apparently occurred,4 it was not
because of the court’s order but because of her lack of progress and ability to safely
parent her sons. Indeed, she had quickly progressed to unsupervised visits three times
before.
We also reject mother’s contention that the appeal should not be dismissed even if
moot, because it presents a question of “continuing public importance” that is “capable of
repetition, yet evading review.” (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404.)
We are not persuaded to exercise this discretion here, because the issue raised is fact
specific to this case, and does not pose a legal question of broad public interest likely to
recur.
Finally, 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 conclude that mother
was not prejudiced by the juvenile court’s ruling. The department presented more than
sufficient evidence on the face of its petition, that the children’s physical safety was at
risk if they were left with mother unsupervised, and that it was in their best interest to
return to supervised visitation. Further, the evidence mother wanted to challenge at a
hearing related to whether she reported sexual abuse of her adult daughters, whether she
had a boyfriend, and whether she was complying with her court-ordered services. Even if
she had successfully rebutted that evidence, there was still sufficient evidence to support
the juvenile court’s ruling. Specifically, we refer to mother’s statement she could no
longer care for the children, and her threat to leave them on the porch while she went to
the hospital. Thus, we would have found no error and affirm the juvenile court’s ruling.
4 Appellate counsel states at page six of “Appellant’s Opposition to Dismissal of the
Appeal as Moot,” “Unfortunately, events in the trial court played out exactly as mother
predicted in her AOB. She had no opportunity to work her way back up to unsupervised
or overnight visits with her children in the short time between the court’s order curtailing
her visits, and the 18-month hearing.”
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DISPOSITION
This appeal is dismissed.
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