In re B.N. CA4/2

Filed 11/20/15 In re B.N. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re B.N., a Person Coming Under the
Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E062627
Plaintiff and Respondent, (Super.Ct.No. RIJ1400011)
v. OPINION
A.N. et al.,
Objectors and Appellants.
APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson,
Judge. Dismissed.
Daniel G. Rooney, under appointment by the Court of Appeal, for Objectors and
Appellants.
Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Anna
M. Marchand, Deputy County Counsel, for Plaintiff and Respondent.
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Appellants A.N., T.N., and S.N. appeal from the juvenile court’s denial of their
Welfare and Institutions Code1 section 388 petition requesting to participate in the
section 366.26 hearing scheduled for their brother, B.N. (the child). We dismiss the
appeal as moot.
FACTUAL AND PROCEDURAL BACKGROUND
The parents of the child, S.N. (father) and A.N. (mother), were married and
decided to adopt children. They adopted A.N. from China in 2005. She was 11 months
old at the time.2 Mother later became pregnant and gave birth to twin girls, T.N. and
H.N. (the twins). Subsequently, the parents were contacted about the child, who was
available for adoption from China. They received the child into their home on March 4,
2013.
On January 3, 2014, the Riverside County Department of Public Social Services
(DPSS) filed a section 300 petition on behalf of the child and his sisters (the children).
A.N. was nine years old at the time, the twins were three years old, and the child was 3
years old, as well. The petition alleged that the child came within the provisions of
section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (e)
(severe physical abuse of a child under five). The petition also alleged that A.N., T.N.,
and H.N. (the girls) came within the provisions of section 300, subdivisions (b) and (j)
1All further statutory references will be to the Welfare and Institutions Code,
unless otherwise noted.
2
The parents of the child filed an appeal under case No. E063302. Pursuant to
DPSS’s request filed on March 19, 2015, we took judicial notice of the record that case.
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(abuse of sibling). The petition included the allegation that, while in the care and custody
of the parents, the child sustained multiple fractures to various parts of his body,
including his left and right clavicle, upper left humerus bone, and lower left humerus
bone. The parents had no explanation for the injuries. The petition alleged that the girls
were at risk of similar harm.
In the detention report, the social worker reported that DPSS received a referral on
December 30, 2013, regarding the child. Father brought the child to the emergency
room, and the child was initially diagnosed with a fractured left arm. The fracture was
highly suggestive of non-accidental trauma. The police were called, and an officer spoke
with the emergency room doctor, Victoria Shooks, who said that a skeletal survey was
done and several fractures were noted. Some fractures were a few weeks old. Dr.
Shooks and a radiologist agreed that the fractures were particularly indicative of abuse.
On January 6, 2014, a juvenile court detained the children in foster care. The
court ordered visitation twice a week.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on January 23, 2014, and
recommended that the children be declared dependents of the court, and that reunification
services not be provided to either parent, pursuant to section 361.5, subdivision (b)(5) and
(b)(6). The social worker further reported that the child and A.N. were placed with the
paternal grandparents, and the twins were placed with a paternal uncle and aunt.
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The social worker filed an amended petition on April 17, 2014. The amended
petition deleted the allegations under section 300, subdivisions (a) and (b). At a hearing
on that date, the court found that the child came within section 300, subdivision (e), and
declared him a dependent of the court. It also denied reunification services to the parents
as to the child pursuant to section 361.5, subdivision (b)(5) and (b)(6), and set a section
366.26 hearing for September 2, 2014. Regarding the twins, the court found true the
allegations under section 300, subdivision (j), and declared them dependents of the court.
The court removed them from the parents’ custody and ordered the parents to participate
in reunification services. The parties reached an agreement to have A.N. returned to the
parents. The court ordered her returned to the parents’ custody, subject to DPSS
supervision, on a family maintenance plan.
Status Review Report
On August 20, 2014, the social worker filed a combined report pursuant to
sections 366.26, 366.3, 366.21, and 364. The social worker recommended that the
parents be offered an additional six months of family maintenance services as to A.N. As
to the twins, she recommended that they be returned to the parents’ custody under a
family maintenance plan. Regarding the child, the social worker recommended that
parental rights be terminated. The social worker reported that the twins had been having
overnight visits with the parents, and that the family consistently visited the child once a
month. They enjoyed the visits, and the visits went well. The social worker reported that
the children appeared to have a significant bond with the parents and each other. The
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social worker further reported that the child had adjusted well to his prospective adoptive
home, where he had been placed since April 23, 2014. He appeared happy to see his
family at visits, but he did not cry with the transition back to his prospective adoptive
family after visits.
The social worker filed an addendum report on August 23, 2014 and attached a
preliminary adoption assessment report. The social worker described the prospective
adoptive parents as mature and stable. The child was attached to them, sought their
attention and affection, and was easily comforted by them. The prospective adoptive
parents were also attached to him. They were committed to raising the child in a safe,
loving environment.
At the six-month review hearing regarding T.N. and H.N., the court returned the
twins to the parents’ custody, under a plan of family maintenance.
Section 388 Petition
On November 20, 2014, the girls filed a section 388 petition, asking the court to
grant them standing to participate in the section 366.26 hearing scheduled for the child.
They opposed the adoption of the child and wanted to be heard by the court. The court
denied the petition, stating that there had been no showing that the request would be in
the child’s best interest.
Section 366.26 Hearing
The court held a contested section 366.26 hearing on January 16, 2015. Counsel
for the parents requested that A.N. be permitted to testify regarding her relationship with
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the child. However, the child’s counsel objected, as did county counsel. The court found
that there was no doubt the child had a close relationship with A.N., as well as the twins.
Since there was no indication that they were not close, the court decided not to permit
A.N. to testify. The social worker testified at the hearing and said that the parents had
visits with the child once a month. The last visit she supervised was on December 18,
2014. The visit went well. The child was happy to see the girls and the parents. He
appeared to have more of an affinity for A.N. The children read with each other and
played with toys, and the parents brought snacks. The social worker testified that the
child appeared to be happy during the visits, but was fine when the visit ended. He said
goodbye to everyone. She testified that at the end of visits in general, the child was not
particularly sad. Mother also testified that the child had pet names for his sisters.
After hearing testimony and closing arguments, the court found it likely that the
child was going to be adopted. The court also found that there was a sufficient basis for
terminating parental rights. The court noted that two exceptions to the termination of
parental rights had been argued—the sibling relationship exception and the parental bond
exception. It noted that the parents may have a bond, but it was clear that such bond did
not outweigh the benefits of adoption. The court further found that the siblings had a
close relationship. However, the child was clearly in a very good home, where he was
free from abuse, and where he was loved and cherished. Thus, the court found that
neither exception applied and that adoption was in the child’s best interest. The court
terminated parental rights and set adoption as the permanent plan.
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ANALYSIS
The Issue on Appeal is Moot
The girls appeal from the juvenile court’s denial of their section 388 petition
requesting the court to grant them standing to participate in the section 366.26 hearing.
We conclude that this appeal is moot.
The girls argue that the court abused its discretion in denying their section 388,
subdivision (b) petition without an evidentiary hearing. Section 388, subdivision (b),
provides that “a child . . . may petition the court to assert a relationship as a sibling
related by blood, adoption, or affinity . . . to a child who is . . . a dependent of the juvenile
court, and may request . . . consideration when determining or implementing a case plan
or permanent plan for the dependent child.” The girls assert that “[t]he point of the
instant appeal is [their] wish to participate in the section 366.26 hearing for their brother,
[the child].” Respondent points out that the subject hearing has already taken place. As
such, there is no effective relief this court can grant, and the appeal must be dismissed. In
their reply brief, the girls acknowledge that the parents have appealed the decision
severing their parental rights to the child. The girls conclude that, should the parents
prevail, the juvenile court would likely conduct another section 366.26 hearing, at which
time they could participate. Thus, they assert that their appeal is not moot until this court
affirms the judgment of the juvenile court.
“An appeal becomes moot when, through no fault of the respondent, the
occurrence of an event renders it impossible for the appellate court to grant the appellant
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effective relief.” (In re Esperanza C. (2008) 165 Cal. App. 4th 1042, 1054.) “When the
court cannot grant effective relief to the parties to an appeal, the appeal must be
dismissed.” (In re I.A. (2011) 201 Cal. App. 4th 1484, 1490 (I.A.).) Here, as respondent
points out, the section 366.26 hearing has already been held. Moreover, we have
reviewed the parents’ appeal and affirm the juvenile court’s order terminating parental
rights. (See In re B.N. (Oct. 30, 2015, E063302) [nonpub. opn.].) As such, the issue
raised in the instant appeal has been rendered moot, and the appeal must be dismissed.
We further note that the girls were not prejudiced by the court’s denial of their
section 388 petition. They are apparently claiming that, by denying them the opportunity
to participate in the section 366.26 hearing, “the court prejudged and eliminated a later
invocation and application of the sibling exception to adoption.” To the contrary, the
record reflects that the sibling relationship exception to the termination of parental rights
was argued at the section 366.26 hearing. The social worker, father, and mother all
testified as to what the child and the girls did together at visits, how they interacted, the
nicknames the child called them, and how he reacted at the end of visits. The court
expressly discussed the application of the sibling relationship exception. It found that the
siblings had a close relationship, but noted that, “even with that sibling relationship, the
Court is still called to weigh the benefit of that relationship against [the child’s]
permanence through adoption.” The court concluded that the sibling relationship
exception did not apply, and that adoption was in the child’s best interest.
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Ultimately, since the section 366.26 hearing has passed, and the court cannot grant
the relief requested, the appeal is moot.
DISPOSITION
The appeal is dismissed as moot.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
McKINSTER
J.
KING
J.
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