In re C.B.
Filed 3/26/13 In re C.B. CA1/1
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
ONE
In re C.B.,
a Person Coming Under the Juvenile Court Law.
HUMBOLDT
COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Plaintiff and Respondent,
v.
R.B.,
Defendant and Appellant.
A136161
(Humboldt
County
Super. Ct.
No. JV120076)
C.B.’s noncustodial father
R.B. appeals from a dispositional order
of the juvenile court denying him physical custody of his child. He contends the court should have granted him
custody under Welfare and Institutions Code section 361.2,
a statute conferring on the noncustodial parent a qualified right to custody of
a child, like C.B., who has been removed from the custodial parent. The juvenile court, father contends,
erroneously applied a different statute.
At a later status hearing, the court placed C.B. with mother and father
jointly. The
County Department of Health and Human Services (department) contends the
appeal is now moot. We agree, and order
it dismissed.
Factual and Procedural Background
On May 1,
2012, the department filed a juvenile
dependency petition alleging C.B., just shy of two years old, came under
the court’s jurisdiction. According to
the department, mother, who had physical custody of C.B., had been arrested on
April 27, 2012, for driving drunk with C.B. in the car. The arrest was the latest manifestation of a
long-standing substance abuse problem that had given rise to at least two prior
DUI convictions. The department asserted
father, the noncustodial parent, knew or should have known of mother’s
substance abuse problem, yet never intervened.
On May 2,
2012, the court ordered continued detention of C.B., finding her removal from
mother’s home appropriate, and set a jurisdictional
hearing.
The
jurisdictional hearing took place on May 29, 2012. Father filed a waiver of rights, stating he
would submit the matter of jurisdiction solely on the basis of the department’s
jurisdictional report and acknowledging he was giving up the right to a
hearing, to present and challenge evidence, and to testify on his own
behalf. At the hearing, father’s
attorney made some comments in support of father, but concluded by saying
father was anxious to move to the disposition phase and to “mov[e] quickly to
unsupervised visitation,†and therefore, “in light of the low burden of proof
at jurisdiction, he’d prefer to just focus on reunification rather than
fighting at this stage.†The court found
it had jurisdiction by clear and
convincing evidence and set a dispositional hearing.
At the
dispositional hearing, which occurred on June 27-28, 2012, the court adjudged
C.B. a dependent of the court. To reach
this result, it applied Welfare and Institutions Code section 361, subdivision
(c)(1), to remove custody from both mother and father. The court ordered C.B. placed in the home of
a relative or non-relative extended family member and ordered
father. The court issued written
findings and orders on July 2, 2012.
Father
filed a notice of appeal on July 25, 2012, from the court’s dispositional
findings and orders. He has not
challenged the jurisdictional order.
Following a
six-month review hearing, the juvenile court, on December 19, 2012,
found mother and father had made substantial progress and had been actively
involved in developing a case plan for C.B.
Placement with mother and father, it found, would not create a
substantial risk to C.B.’s well-being, and it ruled C.B. placed with them, in
accordance with the developed case plan.
Discussion
Father’s
sole assertion on appeal is that the juvenile court, when it ordered C.B.
removed from his custody at the dispositional
hearing, failed to apply the correct statute. Father contends section 361.2 applies to
noncustodial parents such as himself, while section 361, subdivision (c)(1)—the
provision the juvenile court employed—only governs “guardians
the [dependency] petition was initiated.â€
(§ 361, subd. (c), italics added.)
Indeed, “[s]ection
361, subdivision (c) governs the child’s removal from the physical custody of a
parent. ‘ “It does not, by its
terms, encompass the situation of the noncustodial parent.†’ †(In re
V.F. (2007) 157 Cal.App.4th 962, 969.)
Section 361.2, subdivision (a), on the other hand, “provides . . . when
a court orders removal of a child pursuant to section 361, the court shall
first determine whether there is a parent of the child, with whom the child was
not residing at the time that the events or conditions arose that brought the
child within the provisions of section 300, who desires to assume custody of
the child. The section goes on to
provide that if that parent requests custody, the court shall place the child
with the parent unless it finds that placement with that parent would be
detrimental to the safety, protection, or physical or emotional well-being of
the child. (§ 361.2, subd. (a).)†(In re
A.A. (2012) 203 Cal.App.4th 597, 604–605.)
After awarding placement to a noncustodial parent under this section,
the juvenile court may make the parent the legal and physical custodian and
terminate jurisdiction, or it may order custody subject to the court’s ongoing
jurisdiction and provide reunification services with an eye toward eventually
giving full custody to one of the parents or both of them. (§ 361.2, subd. (b).)
The
department does not defend the juvenile court’s use of section 361. Instead, it asserts father’s appeal is moot
because the December 19, 2012, order placed C.B. with both father and
mother. If a party to a juvenile
proceeding “believes that an issue pending on appeal has been rendered moot by
a court order at a subsequent status review hearing or other proceeding, the
party may bring the matter to the attention of the reviewing court.†(In re
Adrianna P., supra, 166
Cal.App.4th at p. 52, fn. 3.)
“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. [Citation.] However, a reviewing court 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 a question
capable of repetition, yet evading review.
[Citations.] We decide on a
case-by-case basis whether subsequent events in a juvenile dependency matter
make a case moot and whether our decision would affect the outcome in a
subsequent proceeding.†(
165 Cal.App.4th 1394, 1404.)
As a result
of the December 19 order, father now has shared custody over C.B.
361.2—removal of a child from an offending parent and placement with a
noncustodial parent—no longer exists.
(§ 361.2, subd. (a).) Given
subsequent events, the July 2, 2012 dispositional order created only a
temporary placement arrangement for C.B. that has now ceased, and this court
can no longer provide effective relief to father.
Although
father believes the juvenile court should have fashioned the dispositional
order in accordance with section 361.2, and thus should have placed C.B. with
him, given him sole custody, and terminated jurisdiction, we shall not “turn
back the clock†and undo the progress made or any “stability that was createdâ€
since disposition. (Lester v. Lennane (2000) 84 Cal.App.4th 536, 566 [appeal from error
in temporary, and then-defunct custody order was moot]; cf.
Centinela Valley Union High School Dist. (2004) 122 Cal.App.4th 139, 144
[“If relief granted by the trial court is temporal, and if the relief granted
expires before an appeal can be heard, then an appeal by the adverse party is
moot.â€]; In re Pablo D. (1998) 67
Cal.App.4th 759, 761 [“we cannot rescind [reunification] services that have
already been received by the parentsâ€].)
Moreover, even if the court had placed C.B. with father under
section 361.2, it could have provided reunification services to mother and
eventually have ordered the child to return to her custody. (§ 361.2, subd. (b)(3).) Thus, it is pure speculation by father to
assert he would have obtained custody and the proceedings would have been
terminated.
While
“appeals in dependency matters are not moot if ‘the purported error is of such
magnitude as to infect the outcome of subsequent proceedings’ †(
1432 [challenged jurisdictional findings could “affect Father in the futureâ€]),
father has not demonstrated any significantly adverse future affect. He contends that failing to reverse the
dispositional order “could adversely affect [him] because the time period for
reunification will be shortened.†Not
so. Reunification services are, indeed,
limited to 18 months.
name="_ftnref4" title="">[4] (In re
Steven A. (1993) 15 Cal.App.4th 754, 765.) But the 18-month period runs from the date of
initial detention (in this case, from early May 2012) and is not adjusted based
on whether a parent enjoys a period of custody during that time or whether a
supplemental petition is sustained. (
months after the date the child was originally removed from physical custodyâ€];
see also In re N.M. (2003) 108
Cal.App.4th 845, 854 [“ ‘requiring the court to start services anew simply
because a parent succeeded in temporarily regaining physical custody “would
scuttle the purpose of the statute†’ â€].)
The only other suggestion of detriment father makes is that the court
might err again in the future in some other case. Even if that were to come to pass, that would
be a matter for appeal in that case and is not a detriment to father. In short, father identifies no significant
potential harm to him that necessitates review of the placement order. (See In
re I.A. (2011) 201 Cal.App.4th 1484, 1493 [not reaching the merits of an
appeal where an alleged father “has not suggested a single specific legal or
practical consequence from [an alleged adverse] findingâ€]; cf.
793 [“general assertion, unsupported by specific argument†insufficient to
raise issue on appeal].)
Nor, given
the fact-based nature of dispositional rulings and the vast array of
circumstances in which they may arise, is this an issue that is likely capable
of repetition but will avoid review, or an issue of continuing public
interest. In re Yvonne W., supra,
165 Cal.App.4th at page 1404, which father cites, is readily
distinguishable. In that case, an
11-year-old child was removed from the mother’s custody because the mother had
used drugs in front of the child. The
mother enrolled in a residential treatment program, participated in therapy,
tested regularly and had successful visitation, in short, making very
substantial progress toward reunification.
(Id. at pp. 1397–1398.) As of the 18-month hearing, she had continued
making good progress, but had been unable to find permanent housing and was
living at a St. Vincent de Paul shelter, where she could stay for up to two
years. The agency expressly approved
this housing as “appropriate.†While the
child enjoyed visits with her mother and there was adequate room for her to
stay at the shelter, the child had a “negative attitude†toward the residents
and stated she did not want to be homeless.
The agency thus took the position, and the juvenile court found, that
return of the child created a substantial risk of detriment based on the
child’s expressed fear, anxiety and unhappiness about her mother residing at a
shelter. The court maintained the
child’s foster placement and selected “another permanent planned living
arrangement.†(Id. at p. 1399.) After
Mother appealed, the child was returned to her custody. The court denied the agency’s motion to
dismiss on the ground the case presented issues of continuing public importance
“because they challenge the court’s finding that a parent’s housing, previously
deemed by the Agency to be adequate, creates a substantial risk of detriment to
the minor when there are no other protective issues to warrant continued
out-of-home placement.†(
adversely affect the mother in the future, should the child again be removed
from her care. (Ibid.) On the merits, the
court concluded no evidence in the record supported the juvenile court’s risk
of detriment finding based on the fact the mother resided at the shelter, which
the agency had reported to the court was entirely “appropriate.†(Id. at
pp. 1401–1402.) The instant case
presents no such issue of general public importance.
Disposition
The appeal
is dismissed as moot.
_________________________
Banke,
J.
We concur:
_________________________
Margulies, Acting P. J.
_________________________
Dondero, J.
Institutions Code unless noted.
motion for judicial notice of the December 19, 2012 Six Month Review Findings
and Order. (See In re Adrianna P. (2008) 166 Cal.App.4th 44, 52–53, fn. 3 [taking
judicial notice of relevant juvenile court proceedings following a notice of
appeal].)
