In re C.R. CA2/4

Filed 11/29/22 In re C.R. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 (a). This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re C.R. et al., Persons Coming B317118
Under the Juvenile Court Law.
LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No.
AND FAMILY SERVICES, 17CCJP02383
Plaintiff and Respondent,
v.
V.R.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Marguerite D. Downing, Judge. Dismissed.
Suzanne Davidson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, Peter A. Ferrera, Principal Deputy
County Counsel, for Plaintiff and Respondent.
INTRODUCTION
V.R. (mother) challenges the juvenile court’s October 2021
orders1 temporarily suspending her visitation with her two
children, C.R. and A.R. In so doing, mother acknowledges the
court reinstated her visits in February 2022, while this appeal
was pending. Nevertheless, she contends the February 2022
orders have not rendered this appeal moot because: (1) we can
grant her effective relief by directing the juvenile court to order
make-up visits for the period in which her visits were suspended;
and (2) if allowed to stand, the October 2021 orders will prejudice
her by infecting subsequent proceedings in this case.
As discussed below, we reject mother’s arguments and
conclude this appeal is moot. Accordingly, we dismiss.
BACKGROUND
Mother and F.V.2 (father) are the parents of C.R. and A.R.
Mother also has four adult children, who reside in Washington.
When this case arose in December 2017, C.R. was seven years old
and A.R. was four years old. They lived in a house with mother
and a few other adults, including their godmother. The parents
had not been in contact for several years. Mother reported father
was not involved in the children’s lives.
1 Throughout the underlying case, the juvenile court entered
separate minute orders setting forth its rulings for each child.
2 The juvenile court found F.V. to be the alleged father of
both children. He is not a party to this appeal.
2
In late January 2018, the juvenile court sustained an
amended Welfare and Institutions Code3 section 300 petition filed
by the Department of Children and Family Services
(Department). In so doing, it found true the allegations that the
children were at risk of serious physical harm due to: (1) mother’s
history of criminal convictions and her failure to make an
appropriate plan for their care while she was incarcerated; and
(2) father’s unresolved criminal history. The juvenile court then
declared the children dependents of the court, removed them
from both parents, and granted mother reunification services and
monitored visitation.
At the six-month review hearing held in October 2018, the
juvenile court found mother in partial compliance with her case
plan and continued her reunification services. At the twelve-
month review hearing held in February 2019, however, the court
terminated her reunification services and set a permanency
planning hearing for June 2019.
In March 2019, V.M., one of the children’s adult siblings,
expressed interest in having the children placed in her care with
a permanent plan of legal guardianship. Her home was approved
for placement in May 2019. Mother agreed to the children’s
placement with V.M. under a permanent plan of legal
guardianship.
Consequently, at a hearing held in late June 2019, the
juvenile court ordered the Department to transfer the children
from their foster home to V.M.’s home in Washington. The
juvenile court also found legal guardianship to be the appropriate
goal for the children and ordered it as their permanent plan. Per
3 All undesignated statutory references are to the Welfare
and Institutions Code.
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the Department’s request, the juvenile court continued the
permanency planning hearing to December 2019.
In early October 2019, the children began residing with
V.M. Later, mother relocated to Washington, where she stayed
with one of her other adult children.
Due to various reasons, including issues with notice and
concerns relating to the COVID-19 pandemic, the juvenile court
continued the permanency planning review hearing several
times.
A brief hearing was held on October 26, 2021. That
morning, mother had filed a section 388 petition to modify the
order terminating her reunification services. She sought an order
placing the children in her care. Alternatively, she asked the
juvenile court to place the children with A.G., one of her other
adult children, and reinstate her reunification services with
unmonitored or overnight visitation. In support of her petition,
mother asserted circumstances had changed to justify her
requested modifications because, among other things, V.M. was
“refusing to allow mother any visitation with the children, and
even attempted to obtain a frivolous restraining order against
mother, which has since been dismissed.” Attached to mother’s
section 388 petition was an October 21, 2021 order of the
Superior Court of Washington for Yakima County, denying V.M.’s
request for a full restraining order against mother and A.G., and
lifting all temporary restraining orders previously entered.
At the outset of the October 26 hearing, the juvenile court
noted the Department had requested to continue the permanency
planning hearing based on information provided by the children’s
counsel. The court did not state or otherwise clarify what
information was given. Nonetheless, the court stated it would
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continue the matter to December 21, 2021 to “address[ ] some of
the things that are going on.”
At that point, mother’s counsel noted he had filed a section
388 petition for mother. The juvenile court had yet to read her
petition at the time of the hearing. Then, apparently referencing
the information provided by the children’s counsel, mother’s
counsel stated: “What I understand, there was a restraining
order that was attempted by the caregiver in Washington,
supposedly barring [mother] from visiting the children. [¶] I don’t
think it’s legally valid, since this court has jurisdiction over the
children. [¶] I would ask if they do enforce the visitation order,
my client is not being able to [sic] see her children.” The juvenile
court responded: “Well based on what [the children’s counsel] is
telling me, it appears there are some issues. [¶] So, at this point,
the court is going to follow the lead of the criminal restraining
order and . . . mother’s visits, at this time, are not going to take
place until some different orders are made.” Mother’s counsel
then stated: “There is not really concrete evidence before the
court. [¶] [Mother] contests the representations made.” Over her
objection, the court ordered mother to stay away from the
children.
Mother timely appealed from the October 26, 2021 orders.
However, at a hearing held on February 4, 2022, while this
appeal was pending, the juvenile court lifted its orders
suspending mother’s visits, finding “no detriment exists if mother
visits with a monitor in place.”
DISCUSSION
“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. [Citations.] ‘“An issue is
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not moot if the purported error infects the outcome of subsequent
proceedings.”’” (In re E.T. (2013) 217 Cal.App.4th 426, 436.) “The
question of mootness in a dependency case should be decided on a
case-by-case basis[.]” (In re Dani R. (2001) 89 Cal.App.4th 402,
404-405.)
As noted above, mother contends the reinstatement of her
visits in February 2022 has not rendered this appeal moot for two
primary4 reasons. First, she asserts this appeal is not moot
because we can provide her with effective relief by ordering the
juvenile court to grant make-up visits for the three-month period
in which they were suspended. Second, she argues that, if
allowed to stand, the order suspending her visits will infect
subsequent proceedings by making it “more difficult for her to
succeed in her section 388 petition[ ]” and “ma[king] it impossible
for [her] to establish the first prong of the beneficial relationship
exception.” As discussed below, we are not persuaded by either
contention.
4 Mother also asserts “[a] finding of mootness would
undermine fundamental due process principles applicable to
dependency proceedings.” She does not, however, clearly explain
how those principles are implicated on the facts of this case. We
therefore conclude her conclusory due process argument has been
forfeited and decline to entertain it. (See Benach v. County of Los
Angeles (2007) 149 Cal.App.4th 836, 852.) In any event, we
further conclude dismissal of this appeal does not give rise to any
due process concerns because, as discussed below: (1) mother has
not shown she cannot ask the juvenile court for the relief sought
before this court (i.e., an order granting her make-up visits for
the period in which they were suspended) following the dismissal
of her appeal; and (2) mother has not shown she will be
prejudiced by the October 2021 orders in subsequent proceedings.
6
With respect to her first argument, the record reflects
mother has not, at any point, asked the juvenile court for an
order directing the Department to provide her make-up visits for
those she missed due to the October 2021 orders. Accordingly, we
conclude she has forfeited her request for such relief on appeal
and decline to consider it. (See In re Malick T. (2022) 73
Cal.App.5th 1109, 1127 [“[F]orfeiture generally applies . . . when
a party failed to ask in the juvenile court for relief being sought
on appeal”].) In so doing, we note mother has not presented—and
we cannot discern—any reason why she cannot ask the juvenile
court to enter her desired order now or in the future.
With respect to her second argument, we conclude mother
has not shown the order temporarily suspending her visits will
infect the outcome of subsequent proceedings in this case.
To succeed on her section 388 petition, mother must show,
by a preponderance of the evidence: “(1) that there is new
evidence or a change of circumstances and (2) that the proposed
modification would be in the best interests of the child[ren].” (In
re Mickel O. (2011) 197 Cal.App.4th 586, 615, italics omitted.)
Although she asserts the juvenile court’s suspension of her visits
“rendered it more difficult for her to succeed in her [section] 388
petition[,]” she does not explain how its orders have harmed or
will harm her ability to satisfy the elements noted above.
Mother’s contention the order suspending her visitation
will “ma[k]e it impossible for [her] to establish the first prong of
the beneficial relationship exception[ ]” is speculative. That
exception, codified in section 366.26, subdivision (c)(1)(B)(i),5 is an
5 Per section 366.26, subdivision (c)(1)(B)(i), a permanent
plan other than adoption may be selected if “[t]he parents have
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“exception[ ] to the general rule that the [juvenile] court must
choose adoption where possible[.]” (In re Celine R. (2003) 31
Cal.4th 45, 53, italics omitted.) Throughout the underlying
proceedings, however, the Department has consistently
recommended the permanent plan of legal guardianship, rather
than adoption accompanied by termination of mother’s parental
rights. In addition, the juvenile court previously found legal
guardianship to be an appropriate goal for the children, and has
ordered it as their permanent plan. Although the Department
changed its recommendation from legal guardianship to adoption
in November 2021, the record before us reflects the juvenile court
has yet to adopt that recommendation. In addition, as noted
above, mother has filed a section 388 petition seeking to have the
children returned to her care or, alternatively, to have her
reunification services reinstated. So far as we can tell, her
petition is still pending. Therefore, whether mother will have to
establish the beneficial relationship exception applies at all
remains uncertain.
In any event, mother’s contention is also incorrect. In
evaluating the first prong of the three-part test governing the
beneficial relationship exception, courts consider “whether
‘parents visit consistently,’ taking into account ‘the extent
permitted by court orders.’” (In re Caden C. (2021) 11 Cal.5th 614,
632, italics added.) Thus, we are not convinced mother’s three-
month lapse in visitation resulting directly from a court order
will foreclose her from establishing she “maintained regular
visitation and contact with [her] child[ren]” as required to show
the exception’s applicability. (§ 366.26, subd. (c)(1)(B)(i).)
maintained regular visitation and contact with the child and the
child would benefit from continuing the relationship.”
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In sum, for the reasons discussed above, we conclude this
appeal has become moot due to the juvenile court’s reinstatement
of mother’s visitation. Accordingly, we need not address the
merits of her challenge to the prior orders suspending her visits.
DISPOSITION
The appeal is dismissed as moot.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
WILLHITE, J.
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