In re Baby Girl S.

Filed 6/18/08 In re Baby Girl S. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

Appeal from an order of the Superior Court of Orange County, James Patrick Marion, Judge. Dismissed. Motions to dismiss. Granted. Request for judicial notice. Granted.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Plaintiff.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Respondent D.S.

Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Respondent Tom R.

No appearance for the Minor.

* * *

INTRODUCTION

Baby Girl S. (the baby) was taken into protective custody in September 2007 after she and her mother, D.S. (Mother), tested positive for the presence of methamphetamine at the time of the babys birth. The Orange County Social Services Agency (SSA) filed an amended juvenile dependency petition (the petition) alleging Mother and the babys father, Tom R. (Father), failed to protect her and that the babys half siblings have been abused or neglected. (Welf. & Inst. Code,  300, subds. (b) & (j).) (All further statutory references are to the Welfare and Institutions Code.)

In November 2007, the juvenile court found the allegations of the petition true, and ordered reunification services for Mother and Father. On appeal, SSA contends the juvenile court abused its discretion by ordering reunification services for Mother.[1]

Mother moved to dismiss the appeal as moot because the ordered reunification services have already been provided and this court is unable to fashion an effective remedy. We agree and therefore dismiss.

BACKGROUND

I.

The Petition

SSA filed the petition containing the following allegations. In September 2007, Mother and the baby tested positive for methamphetamines at the time of the babys birth; the baby experienced drug withdrawal symptoms. Mother has an extensive history of substance abuse since at least April 1995, including but not limited to the use of methamphetamine, which is unresolved. Mother failed to receive prenatal care on a regular and consistent basis during her pregnancy. Father knew or reasonably should have known [Mother] was using illegal drugs during her pregnancy with the child . . . and failed to protect the child.

The baby has four half siblings, Cheyenne M. (now 18 years old), C.S. (now 16 years old), Chase S. (now 14 years old), and Chance S. (now 13 years old) who have an extensive history in the dependency system. All four half siblings were declared dependents of the Orange County Juvenile Court in 1995 after Chance and Mother tested positive for methamphetamine at the time of Chances birth. The dependency case was terminated in June 1999.

All four half siblings were brought into protective custody in August 2000 under section 300, subdivisions (b) and (j). The juvenile court sustained a petition alleging parental substance abuse, the discovery of drug paraphernalia in the home, and the filthy and unsanitary condition of the home. The half siblings were declared dependents of the juvenile court in October 2000 with a plan of Family Reunification. In June 2002, family maintenance services were ordered for Mother, and, in February 2003, dependency was terminated and the children were returned to Mothers custody.

The half siblings were brought into protective custody again on June 20, 2006. The juvenile court sustained a juvenile dependency petition alleging Mother left the children without an adult supervision overnight on a consistent basis, [Mother] failed to assure the childrens regular and on-time attendance at school, [and Mother] has an unresolved substance abuse problem that impairs her ability to care for, supervise and protect her children. Family maintenance services were ordered for C., Chase, and Chance with their father; as of the date of the petition, a section 364 status review hearing was pending. Family reunification services were terminated for Cheyenne on July 19, 2007, and permanent placement services with the plan of long‑term foster care were ordered for her.

II.

The Jurisdiction and Disposition Report and Jurisdiction Hearing

In the jurisdiction and disposition report dated October 25, 2007, the assigned social worker reported Mother had admitted she used drugs during her pregnancy and used methamphetamine the night before the baby was born. Mother stated that one and one‑half months before the baby was born, she was in the pity pot, feeling depressed and she did not want to feel any longer, so she used. She said she did not know she was pregnant until June 2007 and delayed getting prenatal care until September 2007 because she was overwhelmed and did not know what she wanted to do with the baby. Mother acknowledged she had failed to reunify with her other four children. She said she had been depressed and overwhelmed, and had a grudge against SSA because she had told previous social workers she was depressed but they did not listen to her and werent helping. Mother stated she has been trying to get in to the Hope House where she wants to live with the child.

The report further stated Mother was provided two one-hour monitored visits with the baby each week. As of October 25, 2007, Mother had only missed one visit, which was excused due to her attendance at a perinatal program orientation. The social worker observed, [a]ll visitation has been appropriate and [Mother] attends to the childs needs during the visitation. She also calls the foster parents to check on [the baby] on a regular basis.

SSA recommended the court sustain the allegations of the petition and deny Mother reunification services.[2]

At the jurisdiction hearing, the juvenile court found the allegations of the petition, as further amended, true by a preponderance of the evidence and found the baby came under section 300, subdivisions (b) and (j). The court set the matter for a disposition hearing.

III.

Addendum Reports And Disposition Hearing

In an addendum report dated November 29, 2007, the social worker reported Mother is visiting two hours per week with the child . . . . Her visitation is going well. She has been noted to be affectionate towards the child and takes care of her individual needs throughout the visit. [] On November 16, 2007, the undersigned spoke with [Mother]s Perinatal counselor . . . and was advised of [Mother]s positive progress in treatment. She has actively and consistently participated in all groups for four weeks and all of her drug testing has been negative. [Mother] continues to reside and work in a sober living home. In another addendum report, the social worker stated the perinatal counselor had stated in the November 16, 2007 conversation that [t]here are some concerns about [Mother]s depression and that the counselor was continuing to assess the situation. In addition, Mother informed the social worker that she was asked to leave the sober living home due to a conflict with another resident, but that she was seeking another sober living residence. SSA maintained its recommendation that the court should not order reunification services for Mother.

At the disposition hearing, the juvenile court declared the baby a dependent child of the juvenile court, and ordered reunification services for Mother and Father, finding by clear and convincing evidence it would be in the babys best interest to do so.

IV.

SSA Appeals and Mother Moves to Dismiss Appeal as Moot

SSA appealed from the courts order granting Mother reunification services.[3] On April 1, 2008, Mother filed a motion to dismiss SSAs appeal on the ground by the time this appeal is resolved the first six‑months of family reunification services will have already been provided, and thus this court has no mechanism before it to provide relief for the argued error.

SSA filed an opposition to Mothers motion and a request that this court take judicial notice of (1) SSAs status review report dated April 23, 2008 (showing, inter alia, that since the disposition hearing, Mother has tested positive for alcohol and methamphetamine, stopped visiting the baby, and otherwise failed to comply with the case plan); and (2) the juvenile courts May 7, 2008 minute order terminating Mothers and Fathers reunification services and setting a permanency hearing under section 366.26. Mother filed a joinder in SSAs request for judicial notice and renewed her motion to dismiss, incorporating the April 23 status report and May 7 minute order. We grant the parties joint request that we take judicial notice of those documents in deciding to grant Mothers motions to dismiss the appeal.

DISCUSSION

An appellate courts jurisdiction extends only to actual controversies for which it can grant effective relief. (In re Christina A. (2001) 91 Cal.App.4th 1153, 1158; In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316.) If subsequent acts or events have rendered questions raised in the appeal moot, then the action no longer presents a justiciable controversy. (In re Christina A., supra, 91 Cal.App.4th at p. 1158; 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].) It is our duty to dismiss an appeal that has become moot. (In re Ruby T. (1986) 181 Cal.App.3d 1201, 1204.) An exception has been made when the question presented is an issue of continuing public importance which is capable of repetition, yet evading review. (In re Christina A., supra, 91 Cal.App.4th at p. 1158.) This might occur when an appellate court is unable to obtain the record and briefing by the parties in time to decide an important issue before it becomes moot in a particular case. (Id. at p. 1159.)

A panel of this court in In re Pablo D. (1998) 67 Cal.App.4th 759, 760 dismissed as moot a minors appeal from an order at the 12‑month review hearing extending reunification services to the 18‑month review hearing. The appellate court stated that while the minor might have been correct in his argument that the juvenile court should have terminated the parents reunification services, the services have been rendered. (Id. at p. 761.) The court held: Because we are unable to fashion an effective remedy, the appeal is moot. [Citation.] [] We bewail the waste of time this appeal has caused, for this court, the parents, and, most importantly, for [the minor]. If counsel had sought traditional writ relief immediately following the 12‑month review hearing, any error could have been dealt with in a timely and effective manner. (Ibid.)

Here, the single issue raised in SSAs appeal is moot. The disputed six months of services have been rendered and this court cannot rescind them. The juvenile courts May 7, 2008 order shows Mothers reunification services have been terminated. We reject SSAs contention this case presents an important public question that is capable of repetition, yet tends to evade review. SSA had the option of filing a writ petition to challenge the order providing Mother reunification services, in an effort to have the matter decided by this court before the passage of time made the issue moot; SSA, however, did not do so.[4]

DISPOSITION

The appeal is dismissed as moot.

FYBEL, J.

WE CONCUR:

SILLS, P. J.

ARONSON, J.

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[1] SSA does not challenge the juvenile courts order providing reunification services to Father. We therefore address only those facts pertinent to the courts order as it relates to Mother.

[2] SSA recommended reunification services for Father.

[3] Fathers counsel filed a letter on April 23, 2008 stating that Father would not be filing a respondents brief in this appeal and that he joins in Mothers respondents brief to the extent it enures to his benefit.

[4] At oral argument, SSA argued In re William B. (May 14, 2008, G039351) __ Cal.App.4th __ [2008 Cal.App. Lexis 865] is directly on point. In re William B. is distinguishable, however, because the minors had filed a writ of supersedeas seeking a stay of the 12‑month hearing and a hearing on the mothers petition under section 388. (Id. at p. __, fn. 1 [2008 Cal.App. Lexis 865, at p. *10, fn. 1].) A panel of this court granted a temporary stay of the hearings. (Ibid.) As discussed ante, here SSA did not seek a stay.