Filed
7/31/13 (unmodified version)

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>NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

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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opinion has not been certified for publication or ordered published for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

FIFTH APPELLATE DISTRICT

 
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In re K.M., a Person Coming Under the Juvenile Court Law.
FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES,   Plaintiff and Respondent,                           v.   S.M.,   Defendant and Respondent;   K.M.,               Appellant.	F065954   (Super. Ct. No. 10CEJ300186)     >OPINION

            APPEAL
from an order of the Superior Court of Fresno County.  Brian M. Arax, Judge.

            Beth A.
Melvin, under appointment by the Court of Appeal, for Appellant.

            Kevin B.
Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for
Plaintiff and Respondent.

No appearance for Defendant and
Respondent.

-ooOoo-

            K.M., a
juvenile court dependent, appeals from the October 17, 2012 juvenile court
orders which, inter alia, took dependency jurisdiction over her under Welfare
and Institutions Code section 300, subdivisions (b) and (j), removed her from
the custody of her mother, S.M., and ordered reunification services for
mother.  (Welf. & Inst. Code, § 361,
subd. (c)(1).)href="#_ftn1" name="_ftnref1"
title="">^>[1]  In ordering services for mother, the juvenile
court rejected the recommendation of the Fresno County Department of Social
Services (Department) that mother be denied services pursuant to (1) section
361.5, subdivision (b)(10), as the Department failed to satisfy its burden of
proving by clear and convincing evidence that mother had not made reasonable
efforts to treat the problems that led to the removal of K.M.’s siblings in a
prior dependency case, and (2) section 361.5, subdivision (b)(13), as it found
the Department failed to satisfy its burden of proving by clear and convincing
evidence that mother had a history of extensive, abusive and chronic use of
drugs and, even if that burden was satisfied, the juvenile court found the
provision of services to mother was in K.M.’s best interest. 

In briefing filed with this court,
K.M. challenges only the order of reunification services, arguing the juvenile
court erred as a matter of law when it declined to find the reunification
bypass provision of section 361.5, subdivision (b)(13) applicable to mother and
abused its discretion when it found it was in K.M.’s best interest to order
services.  K.M. asks us to reverse the
order for reunification services and remand the matter to the juvenile court
with instructions that it enter an order terminating mother’s services.  On May 22, 2013, while this appeal was
pending, the juvenile court held a six-month review hearing with respect to
K.M.  At that hearing, the juvenile court
terminated mother’s reunification services and set a section 366.26 hearing for
September 9, 2013.

            By a June
26, 2013 letter, this court invited the parties to file supplemental briefing
on (1) the propriety of taking judicial notice of the juvenile court’s May 22,
2013 minute order and orders attached thereto, and (2) whether K.M.’s challenge
to the juvenile court’s order of reunification services is now moot.  Only K.M. filed a response.  While she does not object to our taking
judicial notice of the minute order and impliedly recognizes the appeal is
moot, she nevertheless asks us to consider the issue she raises because it is
an important legal issue of public interest that is capable of repetition, yet
evading review.

            The question of mootness in a dependency case
should be decided on a case-by-case basis. 
(In re Dani R. (2001) 89
Cal.App.4th 402, 404-405.)  It is the
duty of this court to decide actual controversies by a judgment that can be
carried into effect, and not to give opinions upon moot questions or abstract
propositions, or to declare principles or rules of law that cannot affect the
case in issue.  (Eye Dog Foundation v. State Board of Guide Dogs for the Blind
(1967) 67 Cal.2d 536, 541.)  When,
pending an appeal from a trial court judgment, an event occurs that renders it
impossible for the appellate court, even if it should decide the case in favor
of appellant, to grant any effectual relief whatever, the appellate court will
not proceed to a formal judgment, but will dismiss the appeal.  (Ibid.) 

A reviewing court, however, may exercise its inherent discretion to
resolve an issue rendered moot by subsequent events if the question to be
decided is of continuing public importance and is one capable of repetition,
yet evading review.  (>In re Raymond G. (1991) 230
Cal.App.3d 964, 967.)  “[I]f a
pending case poses an issue of broad public interest that is likely to recur,
the court may exercise an inherent discretion to resolve that issue even though
an event occurring during its pendency would normally render the matter moot.”  (In re
William M. (1970) 3 Cal.3d 16, 23; see, e.g., Liberty Mut. Ins. Co. v. Fales
(1973) 8 Cal.3d 712, 715-716; County
of Madera v. Gendron (1963) 59
Cal.2d 798, 804.)

We are not persuaded to exercise
this discretion here because the issues raised are fact specific to this case and
do not pose legal questions of broad public interest likely to recur.

Contrary to mother’s assertion, this case does not present an issue of
continuing public importance.  At issue
is whether the juvenile court properly determined that the Department failed to
satisfy its burden of proving by clear and convincing evidence that section
361.5, subdivision (b)(13) applied to mother and whether it abused its
discretion in finding that, even if that subdivision applied, it would be in
K.M.’s best interest to give mother reunification services.  This is not a situation, as in the cases upon
which mother relies (In re Adrianna P. (2008)
166 Cal.App.4th 44, 52-53; In re
Christina A. (2001) 91 Cal.App.4th 1153, 1158-1159), where we must
resolve an issue of first impression or one that is likely to recur in other
cases.  Although K.M. casts the issue as
one of law, in reality it is one of fact – whether the Department satisfied its
burden of proof.

Even if we were to reverse the juvenile court’s order granting mother
reunification services, those services already have been terminated.  Accordingly, there is no effective relief we
might afford by reviewing the merits of K.M.’s contentions.  (In re
Jessica K. (2000) 79 Cal.App.4th 1313, 1315.)  Although, as mother points out, we have
inherent discretion to resolve issues despite subsequent events (>In re Yvonne W. (2008) 165 Cal.App.4th
1394, 1403-1404), we decline to exercise that discretion.  We therefore conclude K.M.’s challenge to the
juvenile court’s order granting mother reunification services is moot.  In so concluding, we take judicial notice of
the juvenile court’s May 22, 2013, minute order and orders attached
thereto.  (Evid. Code, §§ 455, 459.) 




DISPOSITION

            The appeal is dismissed.

 

 

                                                                                                            _____________________

Gomes, Acting P.J.

WE CONCUR:

 

 

_____________________

Kane, J.

 

 

_____________________

Detjen, J.