In re Derrick C.

Filed 9/25/07 In re Derrick C. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of the County of San Bernardino. Deborah Daniel, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.)^[1] Dismissed as moot.

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

Ruth E. Stringer, Acting County Counsel, and Dawn M. Messer, Deputy County Counsel, for Plaintiff and Respondent.

Leslie A. Barry, under appointment by the Court of Appeal, for Minor.

This is a juvenile dependency proceeding in which the juvenile court in Riverside County held a jurisdictional hearing, and made findings adverse to father, without father being present and without appointing counsel to represent him. The case was then transferred to San Bernardino and the dependency was eventually terminated.

On appeal, father contends that the Riverside court erred in proceeding without his presence, in person and/or by counsel, and that substantial evidence does not support the Riverside courts jurisdictional findings. Father contends that the San Bernardino court erred by failing to sua sponte reverse the Riverside courts jurisdictional findings. Finally, father contends the appeal is not moot, and the San Bernardino court erred in failing to comply with the Indian Child Welfare Act (ICWA).

I. PROCEDURAL HISTORYRIVERSIDE

Melissa H. (mother) is the mother of two children by different fathers: Elizabeth R. and Derrick C. (minor). On March 14, 2006, minor was two months old. He and his sister were living with their mother in a homeless shelter in Hemet. After investigating allegations of abuse, the children were taken into protective custody by a Riverside County social worker. Although mother told the social worker that Michael C. (father) was the biological father of minor, father was not listed as the father on minors birth certificate. The detention report refers to father as an alleged father. Mother also told the social worker that father was in prison.

A juvenile dependency petition was filed on March 16, 2006. It states that minor was within the jurisdiction of the juvenile court due to violations of Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (g) (failure to support).^[2]The petition describes father as an alleged father.

The petition was heard on April 6, 2006, before Temporary Judge Christine Greer. Although other alleged fathers were present, and counsel were appointed for them, the clerks minutes do not show that father was present, or that counsel was appointed to represent him. The reporters transcript only shows that mothers counsel, a member of the juvenile defense panel, told the court that an attorney was being conditionally appointed to represent father.

The petition was amended and refiled on May 17, 2006. A second jurisdictional hearing was held on May 17, 2006, before Temporary Judge Robert W. Nagby. The clerks minutes do not show that father was present, or that he had waived his presence. Nor do they show that father was represented by counsel. Indeed, the reporters transcript does not show any reference to father at all.^[3] At the conclusion of the hearing, the court found certain jurisdictional allegations of the petition to be true and then ordered the case transferred to San Bernardino because mother had moved there.

The allegations found to be true as to father under section 300, subdivision (b), failure to protect, are that (1) he is not a member of the childs household and he has failed to provide the child with adequate food, clothing, shelter, medical treatment, support, and/or protection, and (2) he has a criminal history . . . [which] place[s] the child at risk of suffering from serious physical harm and neglect. Under section 300, subdivision (g), failure to support, the court found that fathers whereabouts are unknown and he has failed to provide for the care and support of his child.

II. PROCEDURAL HISTORYSAN BERNARDINO

On June 12, 2006, a transfer in hearing was held in San Bernardino before Temporary Judge Deborah Daniel. Counsel was appointed for father. The court expressed concern about the failure to appoint counsel for father in Riverside, but refused to rehear the jurisdictional issue. The children were returned to mothers care and the matter was set for an uncontested dispositional hearing.

The dispositional hearing was held on July 21, 2006. Father was present, in custody, and was represented by counsel. Minor was declared a dependent of the court, but custody with mother was maintained. Father was found to be the biological father of minor and he was offered reunification services. Supervised visitation was allowed after his release from prison.

On February 21, 2007, a semiannual review hearing was held.^[4] The clerks minutes state: Court case has been dismissed and discharged on 02/21/2007. [] Father withdraws his appeal. (Capitalization omitted.)

On July 24, 2006, father filed his notice of appeal from the Riverside juvenile courts jurisdictional hearing of May 17, 2006. By order filed August 4, 2006, we construed the notice of appeal to be from the San Bernardino juvenile courts dispositional order of July 21, 2006.

III. THE MOOTNESS ISSUE

San Bernardino County Department of Childrens Services (DCS) argues that this appeal should be dismissed because minor has been returned to mother, the dependency proceeding has been dismissed, and father stated that he wished to withdraw the appeal.

Father argues that the appeal is not moot because the jurisdictional findings and orders could be used against him in subsequent proceedings. For example, he argues, if there were future dependency proceedings, the failure to support finding could be used to prevent the court from considering his home for placement if minor was removed from mothers custody. He asks for the opportunity to clear his name of the unsupported jurisdictional allegations. Thus, he concludes the appeal is not moot because the jurisdictional findings could have a practical effect on future proceedings. He also notes that he has not requested this court to withdraw the appeal, nor has he abandoned it.

[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. [Citation.] The question of mootness in a dependency case should be decided on a case-by-case basis, particularly when an error in the juvenile courts initial jurisdictional finding has been alleged. [Citations.] (In re Dani R. (2001) 89 Cal.App.4th 402, 404-405.) The question of mootness must be decided on a case-by-case basis. [Citation.] An issue is not moot if the purported error infects the outcome of subsequent proceedings. [Citation.] (In re Dylan T. (1998) 65 Cal.App.4th 765, 769.)

The issue, therefore, is whether the alleged jurisdictional error may affect subsequent proceedings. The fact that the dependency action has been dismissed should not preclude review of a significant basis for the assertion of jurisdiction where exercise of that jurisdiction has resulted in orders which continue to adversely affect appellant. If the jurisdictional basis for orders restricting appellants visitation with, and custody of, Joshua is found by direct appeal to be faulty, the orders would be invalid. Moreover, refusal to address such jurisdictional errors on appeal by declaring the case moot has the undesirable result of insulating erroneous or arbitrary rulings from review. (In re Joshua C. (1994) 24 Cal.App.4th 1544, 1548.)

The parties primarily rely on In re Joel H. (1993) 19 Cal.App.4th 1185. In that case, children were removed from the custody of Diane L., a maternal great-aunt, due to alleged physical and emotional abuse. Joel H. was eventually returned to his mother. The department contended that the appeal was moot because, even if Diane L. won, the court lacked authority to give her custody of Joel. Diane L. argued that the appeal should not be dismissed because her ability to interact with Joel is threatened by the juvenile courts finding of physical and emotional abuse and its order permanently removing Joel from her custody. (Id. at pp. 1192-1193.) The appellate court agreed with Diane L.: We acknowledge our duty is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions. [Citation.] However, the fact that the juvenile court has terminated its jurisdiction over Joel H. does not render it impossible for this court to grant Diane L. any effectual relief. [Citation.] [] Regrettably, it is entirely possible given the family history here that Joel H. may once again become the subject of dependency proceedings. Should this occur, the finding of physical and emotional abuse and order permanently removing Joel from Diane L.s custody would have res judicata effect and would prevent a court from considering her home if Joel had to be removed from his mothers custody. However, if this court were to find the juvenile court in this matter erred, Diane L. could effectively offer her services should they be needed in the future. Under these circumstances, a determination that the appeal is not moot will further the protection of the child, which is the primary purpose of juvenile dependency law. [Citation.] Thus, we conclude the appeal by Diane L. is not moot. (In re Joel H., supra, 19 Cal.App.4th at p. 1193.)

Although the jurisdictional findings against father have apparently not prejudiced him so far, and no orders against him are outstanding, he argues that his appeal is not moot because, as in In re Joel H., his family may become the subject of future dependency proceedings, and the finding that he failed to support minor could be used to prevent him from gaining custody in future proceedings if minor were removed from mothers custody.

DCS argues that, even if there is a future dependency proceeding, the findings made at the jurisdictional hearing in this case will not prevent father from gaining custody in those future proceedings. By the time of the July 21, 2006, hearing, father was looking forward to his release from prison, and he was apparently planning to resume his relationship with mother. He acknowledged that he was the biological father, and services were offered to him. The court ordered supervised visitation upon his release from prison, but made it clear that court permission was required before he moved back into mothers home.^[5]

We think DCS has the better argument. First, jurisdiction relates to the child, not to a parent. Under the facts here, including fathers incarceration, a jurisdictional finding was clearly appropriate. As In re Alysha S. (1996) 51 Cal.App.4th 393 . . . , explained, a jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if the actions of either parent bring her within one of the statutory definitions of a dependent. [Citation.] This accords with the purpose of a dependency proceeding, which is to protect the child, rather than prosecute the parent. [Citation.] [Citations.] Be that as it may, appellant in any event admitted he was in prison for drug possession. While in prison, he cannot care for or supervise his children, rendering his imprisonment enough for the court to exercise jurisdiction under section 300, subdivision (b). [Citations.] (In re Alexis H. (2005) 132 Cal.App.4th 11, 16-17; cf. In re S. D. (2002) 99 Cal.App.4th 1068, 1077 [There is no go to jail, lose your child rule in California].)

Secondly, since the dependency proceedings have been dismissed, we must consider if the alleged error in making these findings would adversely affect father in possible subsequent proceedings. The jurisdictional findings against father were that he had failed to provide support and/or protection for minor, that he had a criminal record that placed minor at risk, and that his whereabouts were unknown. These findings would not preclude father from seeking and obtaining custody in hypothetical future proceedings. We agree with DCS that the results in future proceedings will be governed by the facts that are presented in those proceedings rather than the jurisdictional findings against father in this case.

This is not a case like In re Joel H., in which a recurrence of dependency proceedings is entirely possible. (In re Joel H., supra, 19 Cal.App.4th at p. 1193.) For example, if father stays out of prison and establishes a family with mother and minor, future dependency proceedings would probably not occur. If they did occur, the question of whether father could retain custody of minor would be decided on the basis of his actions at the time. We find nothing in the current jurisdictional findings that would prejudice him in his efforts to obtain custody at that time.^[6] This is not a case like In re Joshua C., in which faulty jurisdictional findings led to orders restricting visitation or custody. (In re Joshua C., supra, 24 Cal.App.4th at p. 1548.) The jurisdictional findings here simply have no future effect after the termination of the current dependency proceedings.

Third, we agree with DCS that fathers discussion of possible future harm is pure speculation. He has not demonstrated that he has, or will, sustain any harm from the Riverside courts failure to appoint counsel for him, or from the arguably erroneous jurisdictional findings made in this case. Although he seeks a new jurisdictional hearing, a reversal of the jurisdictional findings for failure to give proper notice or to appoint counsel for father would have no practical effect because the dependency has been terminated, and arguments about possible future harm in possible future cases are speculative. Such arguments fail to convince us that the case is not moot.

IV. DISPOSITION

The appeal is dismissed as moot.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Ramirez

P.J.

/s/ Miller

J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line Lawyers.

^[1]Two of the four issues raised on this appeal relate to jurisdictional hearings in Riverside County before Temporary Judges Christine Greer and Robert W. Nagby.

^[2]All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[3] The court found the allegations of the petition naming father (allegations b-6, b-7, g-1 & g-2) to be true without referring to him by name or status.

^[4]By order filed March 22, 2007, we took judicial notice of the clerks minutes of February 21, 2007.

^[5]Although we took judicial notice of the clerks minutes of the February 21, 2007, hearing, the supporting reports describing subsequent events are not in our record.

^[6]As father states in another context: While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the described risk of harm. [Citations.] Similarly, he states: [A] history of prior convictions is insufficient without a showing that circumstances at the time of the hearing present a defined and ascertainable risk to the minor from [fathers] behavior. [Citation.]