In re Sarah v. CA2/8 ( 2014 )

Filed 10/6/14 In re Sarah V. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re SARAH V., a Person Coming Under B250988
the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No. CK64286)
FAMILY SERVICES,
Plaintiff and Respondent,
v.
SALVADOR V. (FATHER) et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los Angeles County.
D. Zeke Zeidler, Judge. Dismissed.
Sherman & Associates and Beatrice K. Fung for Appellant, Maria V.
Jamie A. Moran, under appointment by the Court of Appeal, for Appellant
Salvador V.
Andrea Renee St. Julian, for Minor Sarah V.
No appearance by Respondent Los Angeles Department of Children and Family
Services.
__________________________
Salvador V. (father) and Maria V. (paternal aunt) appeal from the order denying
paternal aunt’s Welfare and Institutions Code section 388 petition to change Sarah V.’s
placement from a nonrelated extended family member to the paternal aunt.1 We dismiss
the appeal as moot.
FACTUAL AND PROCEDURAL BACKGROUND
Sarah V. tested positive for opiates when she was born in September 2012.
Although mother tested negative, she had a history of drug abuse which caused her to
lose parental rights to Sarah V.’s two half-siblings: six-year-old Erin R. and five-year-
old Aden R. Father tested positive for marijuana and methamphetamines.
The Department of Children and Family Services (DCFS) did not immediately
detain Sarah V. because of the possibility that morphine administered to mother during
her C-section caused Sarah V.’s positive toxicology. The plan was for the family to live
with maternal grandmother in Corona. But mother left one-week-old Sarah V. with
maternal grandmother so that she could be with father, who did not want to live in
Corona. That same day, mother left a voice mail message asking the social worker about
placing Sarah V. for adoption. By the time mother spoke to the social worker the next
day, she had changed her mind about adoption. Mother admitted using
methamphetamines over the weekend and agreed to have Sarah V. removed from her
custody.
Father was found to be a presumed father. As sustained in October 2012, the
section 300 petition alleged Sarah V. was a person described by section 300, subdivision
(b) because mother and father had substance abuse problems that rendered them
incapable of caring for Sarah V. Neither parent appeared at the adjudication hearing.
Reunification services were ordered for father, but not mother because of her failure to
reunify with the half-siblings.
1 All future undesignated statutory references are to the Welfare and Institutions
Code.
2
Father told the social worker that he wanted Sarah V. placed with his family.2 But
father never told his family about Sarah V.’s birth or the dependency proceedings and the
only contact information he provided for his family was the telephone number of his
elderly and disabled parents, who did not always answer the phone. As a result, the
social worker was unable to contact the paternal family about placing Sarah V. with
them. On September 19, 2012, Sarah V. was placed with nonrelative extended family
member Esther A. Esther A. was the sister of half-sibling Aden’s father and therefore not
related by blood to Sarah V. but she had previously adopted Aden and was interested in
adopting Sarah V., too. In late January 2013, father told his family about Sarah V. and on
February 5, 2013, appellant paternal aunt contacted DCFS to ask that Sarah V. be placed
with her. By that time, Sarah V. had been living with Esther A. for almost five months.
DCFS started the approval process for paternal aunt’s home and arranged weekly three
hour visits for her and Sarah V.
By the six-month review hearing on April 8, 2013, Sarah V. was thriving in Esther
A.’s care. Father had failed to participate in any court-ordered programs, including drug
testing, and DCFS recommended terminating his reunification services. Approval of
paternal aunt’s home was still pending, but she had been consistently visiting Sarah V.
and the visits were going well. The juvenile court continued the matter to May 13, for a
contested section 366.21, subdivision (e) hearing (.21(e) hearing).3
2 Mother, who is not a party to the appeal, wanted Sarah placed with either maternal
grandmother or a maternal aunt, but neither was willing to be a long term caretaker.
3 At the six-month review hearing, section 366.21, subdivision (e) requires the
juvenile court to return the child to the parents unless it finds, by a preponderance of the
evidence, that return “would create a substantial risk of detriment to the safety,
protection, or physical or emotional well-being of the child. . . . The failure of the parent
or legal guardian to participate regularly and make substantive progress in court-ordered
treatment programs shall be prima facie evidence that return would be detrimental.” If
the child is not returned to the parents, the juvenile court must decide whether
reunification services should be terminated. (Ibid.)
3
In late April 2013, paternal aunt’s home was approved. On May 9, she filed a
section 388 petition seeking to have Sarah V. placed with her. She argued that Sarah V.’s
best interests would be served by the change in placement because it would allow Sarah
V. to have a relationship with her paternal family, including numerous aunts and uncles,
cousins and half-siblings. Paternal aunt stated her intention to facilitate a continued
relationship with Sarah V.’s half-brother, Aden R., and the current care-taker, Esther A.
The hearing on the section 388 petition was set for the day of the .21(e) hearing. In its
report for the continued .21(e) hearing, DCFS observed that Sarah V. had developed a
bond with paternal aunt. Notwithstanding the strong bond Sarah V. also had with
Esther A., DCFS concluded it would be in Sarah V.’s best interest to be placed with
paternal aunt, a member of Sarah V.’s biological family. The section 388 petition and the
.21(e) hearing were continued to May 29.
For the continued .21(e) hearing, DCFS reported that Sarah V. was thriving in her
placement with Esther A., who still wanted to adopt. DCFS continued to recommend
placement with paternal aunt, termination of father’s reunification services, and setting of
a section 366.26 permanent plan hearing (.26 hearing). On May 29, Esther A. and her
husband, Armando A., were granted de facto parent status. At paternal aunt’s request,
the section 388 hearing was continued to July 22, so that her counsel could review the
declarations filed in connection with the de facto parent motion as to its relevance to the
section 388 petition. But it denied paternal aunt’s request to continue the .21(e) hearing
to the same date as the hearing on her section 388 petition.4 Going forward with the
.21(e) hearing, the juvenile court terminated father’s reunification services and set the
4 Appellants argue that on May 29, the juvenile court reserved consideration of
Sarah V.’s placement until July 22. We believe the Reporter’s Transcript of May 29
makes clear that the juvenile court denied paternal aunt’s request to continue the .21(e)
hearing and instead made all placement findings required by section 366.21(e). On that
date, the juvenile court continued to July 22 only the hearing on the section 388 seeking a
change in placement.
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matter for a .26 hearing on September 26. Father did not seek review of the order
terminating his reunification services.
At the section 388 petition hearing on July 22, paternal aunt argued her becoming
aware of the dependency proceedings, the bond she had developed with Sarah V., and the
ASFA approval of her home constituted the requisite change of circumstances. She
further argued that, as a family member, she had preferential status under section 361.3,
subdivision (c)(2) (§ 361.3(c)(2)) and that Sarah V.’s best interests would be served by
placing her with a biological family member. Father agreed with paternal aunt but Sarah
V.’s counsel opposed any change in placement. The juvenile court observed that
section 361.3(c)(2) was inapplicable inasmuch as family reunification services had
already been terminated. Although it found a change of circumstances, the court denied
the petition, finding it would not be in Sarah V.’s best interests to remove her from the
only home she had ever known. Father and paternal aunt each timely appealed from the
order denying paternal aunt’s section 388 petition.
Father’s parental rights were terminated on December 19, and father has not
appealed from that order, which became final on February 17, 2014. (Cal. Rules of
Court, rule 8.406(a)(1).). Four months later, on June 9, Sarah V.’s adoption by Esther A.
was finalized.
DISCUSSION
A. The Motions to Dismiss
Sarah V. has filed two motions to dismiss the appeals: (1) on May 15, 2014, after
father’s parental rights were terminated, but before the adoption was finalized, Sarah V.
moved to dismiss father’s appeal on the ground that he lacked standing as a result of the
termination of his parental rights; and (2) on June 25, 2014, after the adoption was
finalized, Sarah V. moved to dismiss both appeals on the ground that the finalized
adoption rendered the appeals moot. Father and paternal aunt counter that the notices of
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appeal were filed before father’s parental rights were terminated and the adoption
finalized. We conclude that father lacks standing and, further, the appeals are moot.
A. Father Lacks Standing
Our Supreme Court recently announced the following rule: “A parent’s appeal
from a judgment terminating parental rights confers standing to appeal an order
concerning the dependent child’s placement only if the placement order’s reversal
advances the parent’s argument against terminating parental rights.” (In re K.C. (2011)
52 Cal.4th 231, 238 (K.C.).) In K.C., supra, the two-month-old K.C. was placed with a
parent who wanted to adopt him. In separate proceedings, parental rights to his five older
siblings were terminated and they were placed with the paternal grandparents. The
agency denied the grandparents’ request to have K.C. placed with them. The
grandparents’ section 388 petition and the .26 hearing were scheduled for the same day.
The father appeared at the hearings and supported the grandparents’ petition, but he did
not offer any argument in opposition to termination of his parental rights. The juvenile
court denied the section 388 petition and terminated the father’s parental rights. The
father appealed from the denial of the petition, but not from termination of his parental
rights. Our Supreme Court concluded the father did not have standing to appeal denial of
the petition because he did not contest the termination of his parental rights. It found a
perfunctory statement that if the placement order were reversed the termination order
should also be reversed was not sufficient to confer standing. (Id. at p. 238, fn. 4.)
The K.C. court distinguished In re Esperanza C. (2008) 165 Cal.App.4th 1042, in
which the mother was found to have standing to appeal denial of her section 388 petition
seeking to have the child placed with a maternal great-uncle. In Esperanza, the mother
and child filed a section 388 petition seeking to have the child placed with the maternal
great-uncle. The juvenile court dismissed the petition, finding it did not have authority to
review the agency’s determination that the uncle’s prior conviction for violating Penal
Code section 272 [contributing to the delinquency of a minor] was “nonexemptible”
within the meaning of section 361.4, subdivision (d)(2), which precludes placing
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dependent child in the home of a person convicted of certain crimes, unless the agency
has granted an exemption. (Esperanza, at p. 1057.) A few months later, the mother’s
parental rights were terminated. (Id. at p. 1052.) On appeal from the order dismissing
their section 388 petition, mother and Esperanza argued that reversal of that order
necessitated reversal of the judgment terminating parental rights. (Id. at p. 1061.) The
appellate court agreed. It found Esperanza had standing because she had a legally
cognizable interest in placement with a relative. (Id. at p. 1053.) The mother had
standing because the requested change in placement might have affected the subsequent
decision whether to terminate her parental rights: “[P]lacement of a child with a relative
has the potential to alter the juvenile court’s determination of the child’s best interests
and the appropriate permanency plan for that child, and may affect a parent’s interest in
his or her legal status with respect to the child. [Citations.] While an alternative
permanency plan to adoption may be unlikely on this record, it remains a statutory option
for the juvenile court. We resolve doubts in favor of [the mother’s] right to appeal.
[Citation.]” (Id. at p. 1054.) The Esperanza court reversed the orders dismissing the
petition and terminating parental rights. (Id. at pp. 1061-1062.)
Distinguishing Esperanza, the court in K.C. explained that the Esperanza mother
had standing because there existed a possibility that reversing the placement order might
lead the juvenile court to not terminate parental rights whereas in K.C., there was no such
possibility inasmuch as the father had not challenged the termination order.
Because father has not challenged the termination order in this case, it is
analogous to K.C., not Esperanza. Like the father in K.C. and unlike the mother in
Esperanza, father in this case did not appeal from the termination of his parental rights.
Reversal of the order denying the section 388 petition (i.e. placing Sarah V. with paternal
aunt) would not advance any argument against terminating father’s parental rights since
father makes no such argument. (K.C., supra, 52 Cal.4th at p. 238.) Father’s assertion
that he “faces the prospect of losing his ability to have any relationship at all if Sarah V.
remains with the foster parents, rather than being placed with her own family in the home
of the paternal aunt,” is not a challenge to the termination order and is insufficient to
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confer standing on father. Accordingly, under K.C., father lacks standing to challenge the
order denying paternal aunt’s section 388 petition.
B. The Appeals Are Moot
Even if father has standing to appeal the denial of paternal aunt’s section 388
petition, we find both appeals are moot as a result of the finalized adoption.
An appeal becomes moot when the occurrence of an event renders it impossible
for the appellate court to grant the appellant effective relief. If the purported error affects
the outcome of subsequent proceedings, the issue is not moot. (In re E.T. (2013)
217 Cal.App.4th 426, 436.) Whether subsequent events in a juvenile dependency matter
make a case moot, and whether our decision would affect the outcome in a subsequent
proceeding, is decided on a case-by-case basis. (In re Anna S. (2010) 180 Cal.App.4th
1489, 1498.)
With certain exceptions, the filing of an appeal deprives the trial court of
jurisdiction of the cause and vests jurisdiction in the appellate court. (Code Civ. Proc.,
§ 916, subd. (a).) But during the pendency of an appeal from an order that affects the
custody of a dependent child, the juvenile court retains jurisdiction to make subsequent
orders and findings in the dependency proceedings. (Code Civ. Proc., § 917.7; In re
Anna S., supra, 180 Cal.App.4th at pp. 1493, 1499.) “However, the trial court may in its
discretion stay execution of these provisions pending review on appeal or for any other
period or periods that it may deem appropriate.” (Code Civ. Proc., § 917.7.) Nothing in
the record on appeal suggests that father or paternal aunt sought a stay of the termination
or adoption orders pending the results of this appeal.
On the question of whether the finalized adoption renders the appeals moot in this
case, we take guidance from three cases: Esperanza, supra, 165 Cal.App.4th at
pages 1054-1055, in which the court found the appeal not moot; and In re Albert G.
(2003) 113 Cal.App.4th 132 (Albert G.) and In re Jessica K. (2000) 79 Cal.App.4th 1313(Jessica K.), in which the courts found the appeals moot.
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In the earliest of those three case, Jessica K., the mother filed a section 388
petition seeking to have Jessica returned to her care five months after her reunification
services were terminated. The juvenile denied the petition. It subsequently terminated
mother’s parental rights and ordered Jessica placed for adoption. On the same day
parental rights were terminated, the mother filed an appeal from the order denying the
section 388 petition, but not from the order terminating her parental rights, which became
final. (Jessica K., supra, 79 Cal.App.4th at p. 1315.) The appellate court dismissed the
appeal as moot, reasoning that an order terminating parental rights may be modified only
by direct appeal; since the mother did not appeal from the order terminating her parental
rights, even if the denial of the section 388 petition was erroneous, the court could not
afford the mother any relief. (Id. at p. 1316.) The court observed that mother could have
pursued a petition for an extraordinary writ as to the summary denial of her section 388
petition, filed prior to the date scheduled for the parental rights termination hearing,
asserting that appeal was not an adequate remedy. (Id. at p. 1317.)
In the next case, Albert G., supra, one-month-old Albert’s two older brothers were
in foster care in Hawaii when Albert was placed with a maternal aunt in California. A
few months later, the brothers were also placed with the aunt. More than seven years
after that, the aunt sought DCFS’s assistance in finding a new place for the family to live
after the maternal grandparents, with whom they had been living, asked them to leave.
Over the aunt’s protests, the two older brothers were returned to foster care in Hawaii and
Albert was placed in foster care in California. Although the aunt eventually was able to
adopt the two older boys in Hawaii, her reunification with Albert was derailed by
negative reports about her relationship with the maternal grandparents. Albert was
placed with his paternal grandparents. Over the course of the dependency, the aunt filed
section 388 petitions, as well as a motion for de facto parent status, which were all
denied; she did not appeal from those orders. (Albert G., supra, 113 Cal.App.4th at
p. 135.) The paternal grandparents adopted Albert in July 2002. In August 2002, the
aunt filed a section 388 petition, which the juvenile court denied for the reason, among
others, that its jurisdiction was terminated by the adoption. The appellate court granted
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DCFS’s motion to dismiss the aunt’s appeal from that order as moot, reasoning:
“Albert’s adoption by his paternal grandparents was final before this appeal was filed,
and indeed before the section 388 petition was filed. Albert’s adoption meant the trial
court could not grant the change appellant sought in her petition, and also means that
there is no remedy we could grant on appeal. ‘After adoption, the adopted child and the
adoptive parents shall sustain towards each other the legal relationship of parent and child
and have all the rights and are subject to all the duties of that relationship.’ (Fam. Code,
§ 8616.) Albert cannot be removed from his adoptive parents on a section 388 petition.
Instead, like every other child, he could only be removed under the procedures and with
the showings required by section 300. [¶] The trial court had no authority to grant the
petition and return Albert to appellant. There is no possibility of effective relief on
appeal. The matter is moot.” (Albert G., at p. 135.)
At issue in Esperanza, the most recent of the three cases, was whether termination
of parental rights and placement of the child in a prospective adoptive home rendered
appeal from the dismissal of the mother and child’s section 388 petition moot. The court
held it did not, reasoning that determination that the juvenile court had authority to
review the agency’s denial of a criminal records exemption, and to direct the agency to
consider the request for an exemption under the appropriate legal standard, might result
in the agency granting an exception, which in turn might result in a different placement
order. (Esperanza, supra, 165 Cal.App.4th at p. 1055.) Accordingly, both the order
dismissing the petition and the order terminating the mother’s parental rights were
reversed. (Id. at pp. 1061-1062.) The Esperanza court did not discuss either Jessica K.
or Albert G.
We conclude that this case is more similar to Jessica K. and Albert G. than it is to
Esperanza. Like the mother in Jessica K., even if the denial of the section 388 petition
was error, the juvenile court could not afford father any relief since he did not appeal
from the order terminating his parental rights. The fact that father filed his notice of
appeal before his parental rights were terminated and the adoption finalized is of no legal
significance. In Jessica K., it was the mother’s failure to appeal from the order
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terminating her parental rights that rendered the appeal from the denial of her section 388
petition moot, not the fact that the notice of appeal was filed on the same day as the
termination order. Here, as in Jessica K., father’s failure to appeal from the order
terminating his parental rights renders his appeal from the denial of the section 388
petition moot because there is no relief to be granted father.
Regarding paternal aunt, like the finalized adoption in Albert G., Sarah V.’s
finalized adoption by Esther A. renders this appeal moot. Under Albert G., Sarah V. can
only be removed from her adoptive home with the showings required by section 300.
(Albert G., supra, 113 Cal.App.4th at p. 135.) As with father, the fact that paternal aunt’s
appeal was filed before the adoption was finalized is of no consequence. Paternal aunt
could have averted this problem by requesting the juvenile court to stay adoption
proceedings pending her appeal. (Code Civ. Proc., § 917.7.) If the juvenile court
refused, she could have petitioned this court for a writ of supersedeas pending appeal.
(Cf. In re M.M. (2007) 154 Cal.App.4th 897, 916 [appellate court had no jurisdiction to
consider the minor’s appeal from order transferring his dependency case to Indian tribe
pursuant to ICWA; the loss of jurisdiction could have been averted had the minor
requested a stay pending exhaustion of his appellate rights].) Paternal aunt did neither
and, as a result, subsequent events in the dependency case rendered her appeal moot.
DISPOSITION
We dismiss father’s appeal for lack of standing and, alternatively, as moot. We
dismiss paternal aunt’s appeal as moot.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J. GRIMES, J.
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