In re A.S. CA4/2

Filed 5/9/23 In re A.S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 A.S., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E079931
Plaintiff and Respondent, (Super.Ct.No. J280886)
v. OPINION
J.P.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
Judge. Affirmed.
Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and
Appellant. J.P.
Valerie N. Lankford, under appointment by the Court of Appeal, for Minor.
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Tom Bunton and Michelle D. Blakemore, County Counsel, Dawn M. Martin,
Deputy County Counsel for Plaintiff and Respondent.
While a prior appeal in A.S.’s (Minor) case was pending (case No. E076176;
hereafter, the prior appeal)1 , the juvenile court granted the adoption petition of Minor’s
foster parents and dismissed the dependency case pertaining to Minor. Subsequently,
this court filed its opinion in the prior appeal; at the time, this court was unaware of the
dismissal in the juvenile court. Upon the juvenile court receiving our remittitur from
the prior appeal with directions to hold an evidentiary hearing, the juvenile court
concluded it lacked jurisdiction to hold the hearing. Defendant and appellant, J.P., who
is Minor’s paternal aunt (Aunt) appeals asserting we should recall the remittitur in the
prior appeal. We affirm.
PROCEDURAL HISTORY
Minor was two months old when he was removed from his mother and father.
Minor was placed in foster care. The Department filed a supplemental petition on
behalf of Minor. (Welf. & Inst. Code, § 387.)2 Aunt and Minor’s paternal grandmother
(collectively, Relatives) made a written request for relative placement preference of
Minor (§ 361.3) which, including exhibits, was approximately 55 pages. The exhibits
included, among other things, declarations from Relatives as well as many photographs.
1 By separate order, this court took judicial notice of the record in the prior
appeal.
2
All subsequent statutory references will be to the Welfare and Institutions
Code, unless otherwise indicated.
2
At the start of the contested jurisdiction and disposition hearing, the juvenile
court explained that Relatives’ request for placement preference would be addressed as
part of the disposition hearing. During the disposition hearing, the juvenile court said,
“My intent is not to have witnesses.”3 The juvenile court remarked that it had read
Relatives’ written request. The following exchange occurred:
“[Relatives’ Attorney]: The Court will allow some testimony?
“The Court: No. . . . [W]ith all of these pictures and documents and
declarations—you can move that into evidence. That’s part of what I would consider
evidence. Right now I don’t need testimony. If I feel like I need it to help me make the
decision, I’ll allow it. But right now I don’t see that. I think you have given me a lot to
look at. Thank you. [¶] Everybody got a copy of her [request]; right?
“[Relatives’ Attorney]: So second call, your Honor?
“The Court: Yes. Just to make sure everybody has each other’s stuff. Thank
you.”
After a recess that lasted “like an hour and a half or two,” the juvenile court said,
“[S]o she did request to call witnesses, but, frankly, based on everything I have, there is
no need for extra evidence. I would receive in the declarations of family, along with the
pictures and things like that they put in . . . . Those would be the things I would be
3 We note that this hearing took place during the pandemic, on October 6, 2020.
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considering, and I don’t think it’s necessary to call witnesses, and that is my purview to
determine if I have enough information.”4
The juvenile court confirmed Relatives’ exhibits were admitted into evidence and
asked Relatives’ Attorney if she had “any other documentary evidence you want [the
court] to consider?” She responded, “That’s it for now.” In the argument portion of the
disposition hearing, Relatives’ Attorney argued the issue of relative preference,
asserting, “It is in the best interest if [Minor] is placed with the [Relatives] and assessed
accordingly.” Father’s attorney concurred with Relatives’ attorney.
In announcing its ruling, the juvenile court said, “I did read the declarations and
information and pictures. I appreciate the love [Relatives have for Minor].” After
providing its analysis, the juvenile court concluded, “[F]or the reasons stated in [the
section] 361.3 analysis . . . , I think it would be harmful to remove [Minor] to place him
with [R]elatives.”
In the prior appeal, Relatives asserted that the juvenile court denied them an
evidentiary hearing on their request for relative placement. While the prior appeal was
pending, on March 23, 2021, the juvenile court terminated Mother’s and Father’s
parental rights. On December 27, 2021, while the prior appeal was still pending, the
4 Section 350, subdivision (a)(1), provides, in relevant part, “The judge of the
juvenile court shall control all proceedings during the hearings with a view to the
expeditious and effective ascertainment of the jurisdictional facts and the ascertainment
of all information relative to the present condition and future welfare of the person upon
whose behalf the petition is brought.”
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juvenile court granted Minor’s foster parents’ petition for adoption and dismissed the
dependency case.
On January 19, 2022, this court filed its opinion in the prior appeal, reversing
with directions for the juvenile court “to hold a full evidentiary hearing to consider the
relative placement issues under [Welfare and Institutions Code] section 361.3,
subdivision (a).” The remittitur issued on March 23, 2022.
Approximately six months later, on September 16, 2022, in the juvenile court,
the Department moved to dismiss the case. The Department asserted that Minor was no
longer a ward of the juvenile court, and therefore could not be the subject of a
placement hearing, as directed by this court. In opposing the motion to dismiss, Aunt
asserted the juvenile court had lacked subject matter jurisdiction to proceed with the
adoption while the prior appeal was pending.
On October 5, 2022, in a minute order, the juvenile court explained, “Matter on
calendar due to the adoption for this case filed and finalized while there was a pending
appeal. [¶] The [juvenile] court was not aware there was a pending appeal and would
not have proceeded with the adoption. [¶] Court notes there was no stay ordered from
[the] Court of Appeal; however had the [juvenile] court known there was a pending
appeal the adoption would not have been set. [¶] The [juvenile] court now does not
have juris[diction] to have this hearing and there are no pending appeals. [¶] The
matter is now dismissed and all counsel relieved.”
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DISCUSSION
Aunt appeals from the juvenile court’s October 5, 2022 determination that it
lacked jurisdiction to proceed with the case. Aunt’s appeal is essentially a motion to
recall the remittitur in the prior appeal, which Aunt asserts should be recalled “to
instruct the juvenile court to vacate its adoption order and reinstate [Minor’s]
dependency case so that [the juvenile court] may hold the evidentiary hearing regarding
relative placement.”
A juvenile court must give relatives preferential consideration when determining
a dependent’s placement. (§ 361.3, subd. (a).) That means the issue of relative
placement arises at the disposition hearing and “whenever a new placement of the child
must be made.” (§ 361.3, subd. (d); In re Lauren R. (2007) 148 Cal.App.4th 841, 854,
857-858.) Accordingly, the juvenile court considered the issue of relative placement
preference during the disposition hearing, as required, but it excluded live testimony.
(§ 361.3, subd. (d).)
Because this is an appeal—not a motion—Aunt needs to establish prejudice
before we can reverse. (Code Civ. Proc., § 475.) Therefore, Aunt needs to direct us to a
point in the record that establishes a reasonable probability of a different outcome if live
testimony had been taken at the disposition hearing, e.g., direct us to an offer of proof at
the disposition hearing. In order to reverse the determination that the juvenile court
lacked jurisdiction, then recall the remittitur, and then direct an evidentiary hearing to
be held, we would need some indication of a reasonable probability of a different
outcome if those things occurred. Aunt makes no such showing. Indeed, Aunt has not
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addressed the issue of prejudice at all. Therefore, we cannot reverse and make those
orders. (Code Civ. Proc., § 475.)
DISPOSITION
The determination that the juvenile court lacked jurisdiction is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J.
We concur:
SLOUGH
J.
RAPHAEL
J.
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