In re A.S.

Filed 9/26/07 In re A.S. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Appellant M. K. appeals the juvenile courts denial of her petition/motion to be named as the de facto parent of minor A. S. We conclude that her appeal is moot and dismiss the appeal.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. S. was born in January 2006.

On February 7, 2006, the San Francisco County Department of Human Services (Department) filed a juvenile dependency petition pursuant to Welfare and Institutions Code section 300, alleging that A. S.s mother had tested positive for cocaine and methadone when her daughter was born, and that A. S. had experienced withdrawal symptoms shortly after her birth.[1] A dependency petition had previously been filed for A. S.s older brother.

On February 8, 2006, the juvenile court ordered A. S. to be detained and placed in foster care. Upon her release from the hospital, A. S. was placed in the home of M. K.

On November 6, 2006, M. K. filed a caregiver information form. By this form, M. K. informed the juvenile court that the Department was planning to remove A. S. from her care to place her with her brother in his foster home. M. K. alleged that such a move would interfere with A. S.s abilities to bond and form attachments in the future. M. K. stated: Until an adoptive home is identified for A. S., she should not be moved from my care.

On November 8, 2006, M. K. filed a de facto parent request. (See Cal. Rules of Court, rule 5.534(e).) In her attached statement, M. K. reported that under her care A. S. had developed into a healthy baby girl. A. S. had formed a secure attachment to M. K., who was the only mother figure that the child had ever known. M. K. was concerned that removing A. S. from her care prior to finding her an adoptive placement would be harmful: For a baby this age, any move is detrimental, however [A. S.] is destined to be moved to an adoptive placement, and for her best interests, that should be her last and only move, to her forever family. M. K. indicated that her present goal was to provide for [A. S.] to promote her mental health and her healthy physical development, and when her adoptive home is found, my goal will then be to help her transition gently and successfully. M. K. did not express a desire to adopt A. S. herself.

At a hearing held on December 13, 2006, M. K.s attorney indicated that M. K. was all for sibling adoption, but that it was particularly important for her to have de facto parent status so that she could raise her concerns regarding how the Departments proposed pre-adoptive lateral foster placement to her brothers foster care home could cause A. S. long-term emotional harm. M. K.s request for de facto status was opposed by A. S.s attorney and by the Department. The juvenile court denied M. K.s request for de facto parent status. This appeal followed.

DISCUSSION

In its opening brief and by way of a subsequent motion, the Department asks us to dismiss M. K.s appeal on the ground that the issues she raises are moot.

On June 26, 2007, the Department asked us to take judicial notice of an addendum report filed with the juvenile court on May 7, 2007. We grant the request. The report indicates that A. S. was placed in the home of her prospective adoptive family on March 12, 2007, and that her brother was placed with the same family on April 2, 2007. The Departments social worker reported that the new parents had wanted to adopt siblings and that they were already very attached to the two children.

On August 15, 2007, the Department filed a motion to dismiss, again on the ground of mootness. The Department asked us to take judicial notice of the juvenile courts order filed on that date, a request that we again grant. The order terminates parental rights to A. S. and frees her for adoption. In its motion to dismiss, the Department notes that the court found clear and convincing evidence that A. S. is likely to be adopted. M. K. has filed no opposition to this motion.

We recognize that this dependency proceeding is still ongoing, as the adoption is not yet final. While courts have stated that de facto parent standing can be relevant even after the natural parents rights have been terminated, in this case we believe M. K.s appeal is now moot.

When no effective relief can be granted, an appeal is moot and will be dismissed. [Citation.]   [T]he duty of this court . . . is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.  [Citation.] . . . [W]hen, pending an appeal from the judgment of a lower court, and without any fault of the [respondent], an event occurs which renders it impossible for this court, if it should decide the case in favor of [appellant], to grant him [or her] any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. [Citations.]  [Citation.] (In re Jessica K. (2000) 79 Cal.App.4th 1313, 13151316.)

M. K. expressly indicated that she had no desire to adopt A. S. Her primary goal in applying for de facto parent status was to prevent the Department from placing A. S. in another temporary foster-care placement before she moved to a permanent adoptive home. M. K. expressed support for sibling adoption, and it now appears that A. S. and her brother will be adopted together. Parental rights have been terminated and the juvenile court has found clear and convincing evidence that A. S. will be adopted.

In addition, it appears that A. S. was not removed from M. K.s home prior to her placement with her prospective adoptive parents. Accordingly, we believe that no effective relief can be afforded to M. K. even were we to find her appeal of the denial of her de facto parent request meritorious. Thus, the appeal is moot.

In her reply brief, M. K. points out that Although [A. S.] has been placed in a proposed adoptive home, there is no certainty that the adoption will be finalized. She states that if we were to reverse the order denying her de facto parent status she would be able to be present at all hearings and present evidence until the adoption becomes final. But it seems clear to us from the record that M. K.s primary goal has not been to become an active participant in this dependency proceeding. Indeed, prior to her request to be named a de facto parent, she had not appeared at any of the court hearings nor had she submitted anything to the court in writing. Instead, her primary motive in filing her request was to ensure that A. S. was not removed from her care until an adoptive family was found. Because M. K. has already received the relief she seeks, there is nothing more that this court can do since any ruling would have no practical effect.

DISPOSITION

The Departments motion to dismiss this appeal is granted.

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[1] Neither of A. S.s parents is a party to this appeal.