In re Heidi O. CA2/7 ( 2023 )

Filed 9/14/23 In re Heidi O. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re Heidi O., et al., Persons B314697
Coming Under the Juvenile Court
Law. (Los Angeles County
________________________________ Super. Ct. No.
DK24042)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JUANA G.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Debra Archuleta, Judge. Dismissed.
Jesse Frederic Rodriguez and Giselle Marie Achecar, under
appointment by the Court of Appeal, for Defendant and Appellant
Juana G.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Aileen Wong, Senior Deputy
County Counsel, for Plaintiff and Respondent.
_____________________________
INTRODUCTION
Juana G., the mother of Heidi O., Jessica O., and Kendy O.,
appeals from the juvenile court’s order summarily denying her
petition under Welfare and Institutions Code section 3881 to
reinstate her family reunification services. In May 2023, while
this appeal was pending, the juvenile court selected a permanent
plan of legal guardianship for the children and terminated its
jurisdiction. Juana did not appeal from the May 2023 orders.
Because we cannot provide Juana any effective relief, we dismiss
this appeal as moot.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Juvenile Court Sustains a Petition Under
Section 300 and Removes the Children From Juana
and Their Father
In July 2017 the juvenile court sustained a petition by the
Los Angeles County Department of Children and Family Services
under section 300, subdivisions (b) and (j), on behalf of Heidi,
Jessica, and Kendy. The court found true allegations that the
1 Undesignated statutory references are to the Welfare and
Institutions Code.
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children’s father, Edgar O., placed Kendy at risk of serious
physical harm when he drove a car while under the influence of
alcohol while Kendy was a passenger, that Edgar had a history of
alcohol use, and that Juana currently abused alcohol. At
disposition the court declared Heidi, Jessica, and Kendy
dependent children of the juvenile court and removed them from
Juana and Edgar. The court ordered reunification services and
monitored visitation and ordered both parents to participate in a
drug and alcohol program, parenting classes, and individual
counseling.
B. The Juvenile Court Returns the Children to Their
Parents, but Later Sustains a Supplemental Petition,
Removes the Children Again, and Denies Further
Reunification Services
At the May 2018 review hearing under section 366.21,
subdivision (e), the juvenile court found Juana’s progress had
been partial and Edgar’s had been minimal. The court ordered
an additional six months of reunification services. At the
November 2018 review hearing under section 366.21,
subdivision (f), the court found both parents’ progress had been
substantial and returned the children to them.
In March 2019 Juana and Edgar, however, relapsed by
consuming alcohol and using cocaine. Edgar slapped Juana on
her face and neck. In April 2019 the Department filed a
subsequent petition under section 342, alleging Juana and Edgar
engaged in domestic violence. The Department also filed a
supplemental petition under section 387 seeking to remove the
children because Juana and Edgar abused alcohol and cocaine
while the children were in their care. At the detention hearing
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on the subsequent and supplemental petitions, the court removed
the children from Juana and Edgar. The court ordered monitored
visitation and directed the Department to provide referrals for
domestic violence counseling, drug treatment, and drug testing.
At the combined jurisdiction and disposition hearing on the
new petitions, the court dismissed without prejudice the
subsequent petition under section 342 for domestic violence. The
court sustained the supplemental petition under section 387 for
abusing alcohol and cocaine. The court removed the children
from Juana and Edgar, denied family reunification services,
ordered the Department to do an adoptive home study, and
scheduled a selection and implementation hearing under
section 366.26.
During the next 12 months, Juana called and visited the
children sporadically. On three occasions she relapsed and had
no contact with the children for weeks at a time. Edgar had no
contact with the children, and the Department did not know
where he was.
In December 2019 the court selected adoption as the
permanent plan. In July 2021 the Department reported that the
children met with two prospective adoptive families, but that
neither family decided to adopt the children. The children said
they wanted to stay with their caregivers, and the caregivers
expressed interest in legal guardianship. The court selected
adoption or legal guardianship as the permanent plan.
C. The Juvenile Court Denies Juana’s Section 388
Petition Seeking Additional Reunification Services
In July 2021 Juana filed a petition under section 388
asking the juvenile court to reinstate family reunification
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services for six months. Juana claimed circumstances had
changed because three months earlier she had enrolled in an
outpatient program in which she attended weekly group sessions
and semiweekly individual sessions. She also stated she tested
negative for 14 weeks, consistently attended 12-step meetings,
and participated in 11 domestic violence classes. Juana asserted
it was in her children’s best interests to reinstate reunification
services because the children had no prospective adoptive parents
and because she and her children shared a bond.
The juvenile court denied the petition without a hearing.
The court stated Juana had not made a prima facie showing
because she did “not state new evidence or a change of
circumstances” and the proposed change did “not promote the
best interest of the child.” Juana timely appealed from the
juvenile court’s order denying the petition under section 388.
D. The Juvenile Court Appoints Legal Guardians and
Terminates Dependency Jurisdiction
At the section 366.26 hearing on May 23, 2023 the juvenile
court selected a permanent plan of legal guardianship for the
children, appointed their caregivers as the legal guardians, and
terminated its dependency jurisdiction.2 Juana did not appeal
from the May 2023 orders.
2 We take judicial notice of the juvenile court’s May 23, 2023
orders. (See Evid. Code, §§ 452, subd. (d), 459.)
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DISCUSSION
A. Applicable Law
“Juvenile dependency appeals raise unique mootness
concerns because the parties have multiple opportunities to
appeal orders even as the proceedings in the juvenile court
proceed.” (In re N.S. (2016) 245 Cal.App.4th 53, 59.) The
“‘critical factor in considering whether a dependency appeal is
moot is whether the appellate court can provide any effective
relief if it finds reversible error.’” (In re Rashad D. (2021)
63 Cal.App.5th 156, 163; see In re D.P. (2023) 14 Cal.5th 266,
275.) An “appeal may become moot where subsequent events,
including orders by the juvenile court, render it impossible for the
reviewing court to grant effective relief.” (In re E.T. (2013)
217 Cal.App.4th 426, 436; see Rashad D., at p. 163.) “A
reviewing court must ‘“decide on a case-by-case basis whether
subsequent events in a juvenile dependency matter make a case
moot and whether [its] decision would affect the outcome in a
subsequent proceeding.’’’” (D.P., at p. 276.) “‘When no effective
relief can be granted, an appeal is moot and will be dismissed.’”
(In re J.A. (2020) 47 Cal.App.5th 1036, 1050-1051.)
Even when a case is moot, however, a reviewing court has
“inherent discretion” to reach the merits of an appeal.
(In re D.P., supra, 14 Cal.5th at p. 282.) A reviewing court
generally will exercise that discretion when a case involves an
issue of broad public interest that is likely to recur, when the
controversy between the parties may recur, or when a material
question remains for the court’s determination. (Ibid.) The
Supreme Court identified several other factors for courts to
consider in deciding whether discretionary review of a moot case
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is appropriate. (Id. at pp. 284-286.) First, the court may consider
whether a challenged jurisdiction finding could impact current or
future dependency proceedings, for example, by influencing a
child protective agency’s decision to file a new dependency
petition or a juvenile court’s determination about further
reunification services. (Id. at p. 285.) Second, the court may
consider the allegations against the parent: “The more egregious
the findings against the parent, the greater the parent’s interest
in challenging such findings.” (Id. at p. 286.) Third, the court
may consider whether the case became moot because a parent
promptly complied with his or her case plan: “It would perversely
incentivize noncompliance if mootness doctrine resulted in the
availability of appeals from jurisdictional findings only for
parents who are less compliant or for whom the court has issued
additional orders.” (Ibid.)
B. Juana’s Appeal Is Moot
Juana contends the juvenile court abused its discretion in
denying her section 388 petition without an evidentiary hearing.
She contends she made a prima facie showing that circumstances
had changed and that ordering further reunification services was
in her children’s best interest. She asks us to reverse the juvenile
court’s order denying her petition and to direct the court to
conduct an evidentiary hearing.
Juana’s appeal is moot because we cannot provide her any
effective relief.3 As discussed, in May 2023 (nearly two years
after the court denied Juana’s section 388 petition) the juvenile
3 We asked the parties to submit supplemental briefs on
whether we should dismiss the appeal as moot. Juana did not
respond to our request.
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court selected a permanent plan of legal guardianship, appointed
guardians, and terminated its dependency jurisdiction. Because
Juana did not appeal from those orders, “they are not now before
us or otherwise subject to appellate review.” (In re Rashad D.,
supra, 63 Cal.App.5th at p. 164.) Thus, even if we were to
reverse the juvenile court’s July 2021 order denying Juana’s
section 388 petition, the juvenile court could not reinstate family
reunification services because reunification services are not
available once the court holds a section 366.26 hearing and
orders a legal guardianship. (See Michael G. v. Superior Court
(2023) 14 Cal.5th 609, 623, fn. 2 [writ petition challenging the
juvenile court’s decision to terminate reunification services was
moot because the father did not appeal from the juvenile court’s
subsequent order selecting a permanent plan of guardianship];
In re Marilyn H. (1993) 5 Cal.4th 295, 309 [a section 388 petition
“may be used to raise the [reunification] issue in the trial court
prior to the section 366.26 hearing”]; cf. B.B. v. Superior Court
(2016) 6 Cal.App.5th 563, 569-570 [if a court modifies or
terminates a legal guardianship, it must hold a new permanency
planning hearing and may order reunification services for
parents whose rights have not been terminated].)
Nor is it appropriate to exercise our discretion under
In re D.P., supra, 14 Cal.5th 266 to hear Juana’s moot appeal.
Juana does not challenge jurisdiction findings that carry stigma
or might affect future dependency proceedings. The appeal
became moot because the court selected legal guardianship for
the children, not because Juana promptly complied with her case
plan. No other factor justifies reaching the merits of her moot
appeal. (See id. at p. 286 [“no single factor is necessarily
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dispositive of whether a court should exercise discretionary
review of a moot appeal”].)
DISPOSITION
The appeal is dismissed.
SEGAL, J.
We concur:
PERLUSS, P. J.
MARTINEZ, J.
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