In re A.H.

 

 

 

Filed 9/13/13  In re A.H.
CA4/3

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 


 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 

 
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In re A.H, a Person Coming Under the Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES AGENCY,         Plaintiff and Respondent,               v.   B.H.,         Defendant and Appellant.	G047996            (Super. Ct. No. DP023160)            O P I N I O N

                        Appeal from orders of the
Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Deborah C. Servino, Judge.  Dismissed. 
Motion to dismiss.  Granted.  Requests for judicial notice.  One granted and one denied.

                        Hassan Gorguinpour,
under appointment by the Court of Appeal, for Defendant and Appellant.

                        Nicholas S. Chrisos,
County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for
Plaintiff and Respondent.

                        No appearance for Minor.

*                      *                      *

 

Introduction

                        B.H. appeals after the href="http://www.mcmillanlaw.com/">juvenile court sustained two juvenile
dependency petitions filed by the Orange
County Social Services Agency (SSA) as to now 11‑month‑old A.H.  The court found that B.H. was A.H.’s presumed
father.  In his appellate briefs, B.H.
argues the juvenile court’s jurisdictional orders were unsupported by
substantial evidence.

                        In August 2013, SSA
filed a request for judicial notice of juvenile court records showing that since
the commencement of this appeal, court‑ordered testing confirmed that B.H.
is not A.H.’s biological father and the court has granted B.H.’s requests,
inter alia, that all allegations pertaining to B.H. be stricken from the
sustained petitions and that he be excluded from further participation in this
dependency matter.  SSA filed a motion to
dismiss the appeal on the ground of mootness. 
B.H. has not filed any opposition to SSA’s request for judicial notice
or motion to dismiss.

                        For the reasons we will
explain, subsequent events have rendered B.H.’s appeal moot; accordingly, we
dismiss this appeal.

 

Background

                        In October 2012, SSA
filed a juvenile dependency petition which, as amended in December 2012 (the
first petition), alleged A.H. came within the juvenile court’s jurisdiction
under Welfare and Institutions Code section 300, subdivision (b)
(failure to protect) and subdivision (j) (abuse of sibling).  The first petition contained allegations regarding
A.H.’s mother’s extensive substance abuse problems and criminal record.  The only allegation pertaining to B.H. was he
had arrests for possessing a controlled substance and controlled substance
paraphernalia, but both charges against him were dismissed.  At an initial petition hearing, the juvenile
court found B.H. to be A.H.’s presumed father and ordered A.H. to remain in B.H.’s
care. 

                        On December 13, 2012, the juvenile court
sustained the allegations of the first petition.  On December 17, SSA filed a second
juvenile dependency petition (the second petition), which alleged B.H. had failed
to comply with court‑ordered drug testing.  The second petition stated A.H. had been
detained by SSA.  The juvenile court
sustained the second petition and vested custody of A.H. with SSA.  B.H. appealed from the juvenile court’s
orders finding juvenile court dependency jurisdiction over B.H. and denying him
family maintenance services.  He
challenges the sufficiency of the evidence supporting the court’s findings that
he had placed A.H. at risk of harm and had failed to adequately supervise or
parent A.H.  In the href="http://www.fearnotlaw.com/">opening brief, B.H. states:  “Father has an active interest in correcting
these findings of parental fault.  Thus,
he asks this court to reverse the jurisdiction orders against him, leaving him
as a non‑offending parent.” 

                        In June 2013, SSA
requested that this court take judicial notice of (1) a certified copy of
the juvenile court’s May 22, 2013
minute order in which the court ordered paternity testing for B.H. as to A.H.,
and (2) a certified copy of the reporter’s transcript for the May 22, 2013 hearing.  The reporter’s transcript includes B.H.’s
testimony that his mother had submitted biological samples from B.H. and A.H.
for paternity testing, and that the test results showed B.H. was not A.H.’s
biological father.  B.H. further testified
he would rather not have a relationship with A.H. if she were not his
biological child, and requested that the juvenile court order a paternity test
to confirm those results. 

                        On August 1, 2013, SSA filed a second request
for judicial notice and a motion to dismiss the appeal.  SSA requested that this court take judicial
notice of two juvenile court orders, filed on July 16, 2013 and July 29, 2013, respectively, which show the court‑ordered
DNA testing established B.H. is not A.H.’s biological father.  The orders further show that, pursuant to B.H.’s
request, the juvenile court has set aside B.H.’s voluntary declaration of
paternity, vacated the order providing B.H. reunification services as to A.H.,
struck the allegations in the first petition and the second petition, which
pertain to B.H., and excluded B.H., for all purposes, from this juvenile
dependency case.  B.H. has not filed an
opposition to the second request for judicial notice or the motion to dismiss.

                        Pursuant to rule 8.256(e)(1)
of the California Rules of Court, we vacated submission of this matter and
provided B.H. the opportunity to file a supplemental letter brief addressing
why this court should not grant both SSA’s second request for judicial notice
and motion to dismiss the appeal as moot. 


                        B.H.’s counsel submitted
a supplemental letter brief stating that B.H. “has no opposition to the motion
for judicial notice.”  The letter brief
further states, however, that “Counsel for [B.H.] is unable to state a position
on the motion to dismiss the appeal” because of, inter alia, “counsel’s
inability to confirm with [B.H.] his position on the motion to dismiss.” 

Discussion

                        “‘“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 effective relief.  [Citations.]”’  (In re Anna S. (2010) 180
Cal.App.4th 1489, 1498 . . . ; see In re Christina A. (2001) 91 Cal.App.4th 1153, 1158 . . .
[if subsequent acts or events have rendered questions raised in the appeal
moot, then the action no longer presents a justiciable controversy].)  [¶] Appellate courts have dismissed
dependency and civil appeals that have become moot.  (See In re Dani R. (2001) 89
Cal.App.4th 402, 404 . . . [‘“[A]n action that originally was based
on a justiciable controversy cannot be maintained on appeal if all the
questions have become moot by subsequent acts or events.  A reversal in such a case would be without
practical effect, and the appeal will therefore be dismissed.”’]; Ebensteiner
Co., Inc. v. Chadmar Group (2006) 143 Cal.App.4th 1174, 1178‑1179
. . . [appellate court will not render opinions on moot
questions but will dismiss the appeal]; In re Ruby T.
(1986) 181 Cal.App.3d 1201, 1204 . . . [‘“it is the duty of the court to dismiss the
appeal”’ that has become moot].)”  (In re
A.Z. (2010) 190 Cal.App.4th 1177, 1180.)

                        Postjudgment evidence
may be considered to determine whether it renders an issue moot on appeal.  (In re
Josiah Z. (2005) 36 Cal.4th 664, 676.) 
Evidence Code sections 459, subdivision (a), and 452,
subdivision (d)(1), provide that this court may take judicial notice of
the juvenile court’s orders.  We
therefore grant SSA’s unopposed second request for judicial notice.  We deny SSA’s first request for judicial
notice because it is not necessary for the resolution of this appeal

                        The juvenile court’s
orders establish the court has set aside B.H.’s voluntary declaration of
paternity, vacated the order providing B.H. reunification services as to A.H.,
struck the allegations in the first petition and the second petition, which
pertain to B.H., and excluded B.H., for all purposes, from this juvenile
dependency case.  B.H.’s appeal
challenging the sufficiency of the evidence supporting the petitions is therefore
moot.  B.H. does not assert
otherwise.  We therefore grant SSA’s
motion to dismiss.

Disposition

                        The appeal is dismissed
as moot.

 

 

                                                                                   

                                                                                    FYBEL,
J.

 

WE CONCUR:

 

 

 

O’LEARY, P.
J.

 

 

 

THOMPSON, J.