Filed 2/20/18 In re Ella S. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO


In re ELLA S., a Person Coming Under the Juvenile Court Law.
ALAMEDA COUNTY SOCIAL SERVICES AGENCY,
Plaintiff and Appellant,
v.
ARTHUR S.,
Defendant and Respondent.




A151628

(Alameda County
Super. Ct. No. OJ07007935)


Ella S., currently 13 years old, was three years old when she was removed from her mother’s custody and placed with Kim M., who became her legal guardian. Ella’s maternal grandfather, Arthur S., has been seeking to have her placed with him since he first learned of her existence when she was five years old. We have previously affirmed trial court orders granting Arthur de facto parent status (In re Ella S. (Aug. 27, 2015, A143338) [2015 WL 5062467] [nonpub. opn.] (Ella S. I)), and denying Arthur’s petition to set aside Kim’s guardianship and place Ella in his home (In re Ella S. (July 1, 2016, A146104) [2016 WL 3675684] [nonpub. opn.] (Ella S. II)).
The present appeal, arising from Ella’s petition for modification, is from the juvenile court’s orders terminating the guardianship, placing Ella with Arthur with a goal of adoption and prohibiting the Alameda County Social Services Agency (Agency) from removing Ella from Arthur’s home or contacting Ella without first contacting her attorney. The Agency contends that the juvenile court erred in prohibiting removal because the Agency was statutorily required to conduct a new placement assessment and prohibited from placing Ella with Arthur prior to his obtaining a criminal record exemption that he had not obtained at the time of the placement order. The Agency further contends the court erred in prohibiting it from contacting Ella without first contacting her attorney and in finding that the Agency did not provide Ella with reasonable services. As we will explain, much of the Agency’s appeal is moot. We will affirm the juvenile court’s orders.
STATEMENT OF THE CASE AND FACTS
The background of this case is well known to the parties and discussed at some length in our opinions on the prior appeals. Once Arthur learned of Ella’s existence in 2009, he requested that she be placed with him and began visitation, which came to include several weekends per month. (Ella I, supra, 2015 WL 5062467, *2.) As Ella developed a strong relationship with Arthur and her maternal relatives, the case initially moved toward a permanent plan of long term guardianship with Kim so as not to disrupt the living situation Ella had been in for several years. (Ibid.)
In July 2012, the Agency recommended changing the plan to adoption by Kim but Ella began to verbalize a desire to live with Arthur and she was afforded longer visits to help her understand what it would be like to do so. (Ella I, supra, 2015 WL 5062467, *2.) At review hearings, the Agency reported that Ella was ambivalent about her placement and recommended that she remain in Kim’s home. (Id. at pp. *2-3.)
Arthur formally requested that Ella be placed with him in late 2013, and the Agency approved his home for placement in January 2014. (Ella I, supra, 2015 WL 5062467, at p. *3.) As the Agency was evaluating the option of changing Ella’s placement, however, conflict arose between Kim and the maternal family; Ella’s therapist described the child as having a primary parental attachment to Kim, and the Agency felt this should not be disrupted but also that it would be detrimental to sever Ella’s attachment to her biological family. (Id. at pp. *3-4.) The Agency resisted Arthur’s efforts to become Ella’s guardian, and a clinical psychologist who conducted an attachment evaluation concluded that Ella was attached to Kim as her primary caregiver while her attachment to Arthur was ambivalent. (Id. at pp. *4-5.) In December 2014, the Agency reported that Ella felt torn between the two families and recommended that she remain with Kim. (Ella II, supra, 2016 WL 3675684, *3.) The court heard testimony from Ella, Arthur, Kim, and others at hearings in 2014 and 2015 on Arthur’s petition to rescind Kim’s guardianship and become Ella’s guardian, and ultimately found that termination of the existing guardianship would not be in Ella’s best interests. (Id. at p. *4.) We affirmed. (Id. at p. *1.)
The Agency reported in March 2016 and September that Ella expressed wanting to spend more time with Arthur and potentially to live in his home.
On September 12, 2016, a little over a month after her twelfth birthday, Ella filed a petition for modification, seeking to set aside Kim’s guardianship and have Arthur appointed guardian, or to be placed with Arthur as a relative placement. The petition stated that Ella was “more aware of what she needs and wants, and her voice should be considered. . . . Ella is adamant that she is happier and better parented at the home of her grandfather, Arthur [S.].” Ella felt “very strongly that she is not treated well by [Kim]” and “feels in emotional distress at her home.” In a letter addressed to the court and her attorney, Ella stated, “In the past there was a lot of false evidence put into my court hearings by previous social workers. Things such as: I don’t want to live with my grandfather, I can’t be separated from Kim, and that I cried when I saw my real mother, are not true.” Ella stated that her great-grandfather had died the year before, she was very sad about it and saw and talked to her “real mother.” Afterward, her social worker came to Kim’s house and told her she “shouldn’t live with my grandfather and it was a very bad idea. It broke my heart and I began to cry for hours. I even called my grandfather and told him I really didn’t want to live with Ms. Kim.” Ella stated that she had felt “neglected and uncared for” by Kim for three to four years, was punished when she did not want to call Kim “Mom” or hug her, and was told by Kim that her grandparents were brainwashing her and she did not want to live with them. She felt “people are on Ms. Kim’s ‘side’, I don’t know why she wants me so bad, and why she told me she would let me live with my grandparents if she is fighting with him. She makes me feel like she wants me away from my grandfather forever.” Kim took away Ella’s phone for “at least two months” after finding out that Ella had replied to a text from her grandmother, returning the phone and “privileges” only after Ella told her social worker. Ella said she would “refuse to take no for an answer. I know the judge always gets the final say but, this has gone on for six years and I’m still not happy. I was told by my old attorney that when I turned 12 a paper could be filed that I could be moved with my grandfather. Please file the paperwork to move me with my grandfather, so I can live with my real family. I have told the court in all my other letters.” Ella concluded, “One more time I only want to live with my grandparents. I am 12 years old now and able to think and make some choices for myself. I hope I don’t get in trouble from Ms. Kim for trying to give this letter to my attorney and the court.”
Arthur filed a memorandum of points and authorities in support of Ella’s petition. Kim and the Agency opposed the petition.
The hearing on Ella’s petition was conducted over several dates in January, March and May 2017. At the initial hearing in January, Ella testified that she started wanting to live with Arthur “[p]retty much after I met him” and there was no doubt in her mind about wanting to live with him rather than with Kim. She felt Kim did not support her relationship with Arthur and was trying to “block it,” and said she would sometimes be punished just because she wanted to live with him. She felt cared for in both homes, and things were “okay” at Kim’s, but she felt happier with her grandfather, grandmother, and aunt and had “more opportunities to do stuff” there. She felt like part of the family in both homes but, the court pointed out, hesitated when asked about Kim’s family and did not when asked about Arthur’s. Asked about the difference, Ella testified that it was just knowing she wasn’t “born in [Kim’s] family.” She felt the person she was most attached to was Arthur. She felt very close to her aunt, who lived with her grandparents and who Ella felt was a role model for her.
Ella testified that she had told her former therapist that she wanted to live with Arthur and told each of her social workers this many times. One of the social workers told her it was a bad idea to live with Arthur, and told the court that Ella was crying on the day of her great-grandfather’s funeral because Arthur had brought Ella’s biological mother to the funeral so Ella would be sad. In fact, Ella testified, she was crying because the social worker had told her she should not live with Arthur and this made her very upset. In the last court proceeding, she told Judge Smiley in chambers that she wanted to live with Arthur and sent him three or four letters, and it made her very upset that he did not allow her to do so.
After Ella had been questioned by all the attorneys, the court told her that what it heard in her testimony was that things were going well in both homes but that it would be more fun to live with Arthur, which was very different from the adamant sentiments she had expressed in her letter. Ella said that her desire to live with Arthur was not just to have fun, that she felt different with him than with Kim, “a mixture of love and happiness” and “unconditional kindness.” During a brief break, Ella wrote down some things she wanted to tell the court, and she began to cry as she read them to the court. Ella said it was hard to explain herself because of the pressure and that her social workers had told her they wanted to help her but “every time that we fought to get something like more visitation my social workers ended up leaving.” She said her therapist talked to Kim about everything and did not really help her emotionally, that she sometimes felt “uninvolved” at Kim’s house, that Kim once called her “a disappointment” and told her she was “very disobedient,” and Kim’s husband told her that “a lot of what I say is lies” and that her grandfather “brainwashes” her. Ella said that being at Kim’s house “isn’t as happy as it sounds because sometimes it’s inconsistent with the days and each day is different. And it’s—it doesn’t always make me feel the greatest. [¶] Basically, my point is my grandfather is almost my whole world. There’s nothing more I can say.” She explained that one day she might come home from school and they would play a game and there would be no problems, but another day, if she wrote something about how she felt and Kim or her husband saw it, they would get angry, yell and tell her she was not loyal.
The Agency reported in March 2017, Ella had expressed desire to live with her grandfather and stepgrandmother, but that the Agency believed it was in Ella’s best interest to remain in the “stable, long term, and loving home” in which she had been “thriving” since she was three years old, as it saw no basis for terminating the guardianship and the 2014 bonding study stated that continued placement with Kim offered “ ‘the most potential for emotional stability and psychological growth.’ ” Ella’s attorney raised a number of objections to the report, including that Ella had been very upset because she felt the social worker mischaracterized her statements and feelings. Ella told her attorney that the social worker required her to sign the case plan, which Ella did not want to do because it required therapy to strengthen Ella’s bond with Kim and Ella did not want to do this.
At a hearing in May 2017, Arthur’s attorney offered a stipulation that if he were to testify, Arthur would say he was “ready, willing and able and would adopt Ella whenever that moment is presented.”
Social worker Laurel Manfredi, who was assigned to Ella’s case in the fall of 2016, testified that she believed Ella should remain in Kim’s home under legal guardianship with a generous visitation schedule for her grandparents and other family members, because Ella was doing very well in this longstanding placement, it was consistent with the recommendation of the 2014 bonding study, and the Agency did not have cause to remove Ella from the placement. Manfredi testified that Ella had been asking to live with her grandfather for some time, becoming adamant in 2014. Manfredi had met with Ella once a month beginning in November 2016, and each time Ella asked to live with Arthur. She testified that she considered Ella mature for her age. Manfredi had not considered changing Ella’s placement because there was no cause to remove her from her guardian.
On May 11, 2017, the court found the allegations of Ella’s section 388 petition were true; terminated the order for legal guardianship with Kim M.; removed Ella from Kim’s custody and placed her with Arthur “with the goal of permanent plan of adoption”; ordered an “emergency placement/assessment” with Arthur with the intention that it be a permanent placement; and granted Ella’s attorney discretion to consult with Ella and decide whether the child would move to Arthur’s home immediately or after spending the weekend with Kim.
Ella moved to Arthur’s home that afternoon. The Agency filed an ex parte application requesting that, because the emergency assessment of Arthur’s home had not been completed, the court approve a two-week trial visit and place the matter on the May 25 calendar. The court granted this request.
For the May 25 hearing, Arthur submitted written findings and orders, and the Agency requested additional findings and orders “required by Title IV-e and section 16519.5, et seq. regarding the Resource Family Approval (RFA) process.” Arthur’s attorney objected to the proposed finding that the Agency had made reasonable efforts to finalize Ella’s permanent placement, arguing that the Agency had known since Ella filed the section 388 petition in September that she wanted to live with Arthur but was only now claiming Arthur “did not pass the CLETS [California Law Enforcement Telecommunications System] assessment.” County counsel informed the court that after the court’s decision to terminate the guardianship and place Ella with Arthur, the Agency conducted an emergency assessment that Arthur did not clear, and that Arthur had to go through the “RFA process and there has to be an exemption.” Counsel pointed the court to In re M.L. (2012) 205 Cal.App.4th 210, which counsel described as having held that “the juvenile court may not place a child with a relative who has an unexempted criminal history, even when the court determines that placement would be in the child’s best interest” (id. at p. 226), and In re H.K. (2013) 217 Cal.App.4th 1422, 1431, holding the prohibition against placement mandatory absent an exemption being granted.
The court responded, “So once again you’re telling this court that the agency has allowed this child to be with her family often, every other weekend, for a considerable amount of time, they were approved to have Ella in 2014. This strikes me as another attempt that the [Agency] will go to do anything they can to keep this little girl with [sic] moving in with her biological family. . . . Now, after Ella has been removed, now the agency has just decided to do a CLETS review. It wasn’t done previously. So if there was some concern this court would assume that the agency would have conducted a thorough inquiry. It has not. . . . So now at this late date you’re asking the court to consider removing this child from her grandfather’s home.”
County counsel explained that section 361.4 required the Agency to conduct a CLETS assessment for an “actual placement,” as distinguished from “visitation,” and requested that the court vacate the emergency placement with Arthur because the statute precluded placement with him absent an exemption. Ella’s counsel, expressing distress at the idea of Ella being removed after two weeks of living with Arthur, noted that “the Agency did the exemption in 2014” and there had been no issue since then, and suggested the Agency was not acting in a “collaborative spirit” to “try to make this work for this 12-year-old child.” Arthur’s attorney told the court that the criminal conviction Arthur had suffered was “so old I couldn’t pull up the record for you,” had been overturned on appeal, and was known to the Agency when his home was approved in 2014. County counsel represented that the exemption “has to be done on an annual basis,” and that the Agency was not required to pursue it prior to the court’s change of placement decision because Ella had been thriving in a permanent, stable placement with Kim.
The court denied the Agency’s request to vacate the emergency placement and its request for a stay of its order to enable the Agency to file a writ petition. The court stated, “My position here is all the Agency continues to do is to try to put up obstacles that prevent this little girl from going home. She filed the 388 in September. So you talk about how she has been in this placement and how much she has thrived and all this and that. Well, you were there during her testimony when she sobbed and when she explained how her grandfather is her life and how she has told everyone who has ever talked to her since this dependency began that she wants to be with her family. She was ignored. She was never listened to, even the day of her own great-grandfather’s funeral. A social worker from the Agency told her, ‘you don’t want to live with your grandfather, he’s a bad man,’ and that was in the report of the Agency. So now at this late date you want to bring up that once again a—everything should stop because [Arthur] had a conviction years ago that was overturned on appeal. I find that disingenuous.” The court agreed with Ella’s attorney’s suggestion that if the Agency was concerned, the social worker “should have opened up the file in 2014 and see what notes were made about why they exempted him then because eventually they would exempt him again.” Stating that Ella would not be placed in foster care—as it had been suggested might be the result if she was removed from Arthur, because the court had terminated Kim’s guardianship—or returned to Kim, the court granted Arthur’s attorney’s request for a “do not remove order.” Arthur’s counsel further requested that in light of the court’s concerns about the Agency’s intent, the Agency be ordered not to contact Ella without speaking to her attorney first. When county counsel objected that such an order would prevent monthly visits, which the Agency was required to conduct, the court stated, “I find the Agency has been harmful to this child. I am not preventing the Agency from speaking with her. I’m saying that the Agency needs to go through Ella’s attorney in order to do so.”
The court reiterated its findings from May 11, ordered the Agency to prepare an assessment pursuant to section 366.21, subdivision (i), and 366.22, subdivision (b), and continued the matter for a section 366.26 hearing on September 8, 2017. Of the additional findings and orders requested by the Agency, the court found that it had considered the safety plan of the child; the case plan and placement of the child were necessary and appropriate; and the likely date by which the child might be placed for adoption or in another planned permanent living arrangement was the date of the then-scheduled continued hearing. The court struck the proposed findings that the Agency had “complied with the case plan by making reasonable efforts including whatever steps [were] necessary to finalize the permanent placement of the child” and that the services provided to the child had been reasonable, as well as the proposed order for emergency assessment of Arthur’s home. It ordered the Agency not to contact Ella without speaking to her attorney first, and ordered that Ella not be removed from Arthur’s home.
The Agency filed a notice of appeal on June 14, 2017.
On July 7, the Agency filed a petition for writ of supersedeas and request for immediate stay of the juvenile court’s orders. We denied the request for immediate stay on July 11 and denied the petition on July 26, 2017.
On November 16, 2017, Arthur and his wife were approved under the RFA.
DISCUSSION
I.
The Agency contends the trial court’s order prohibiting removal of Ella from Arthur’s home must be vacated because at the time Ella was placed with Arthur, Arthur had not obtained a criminal records exemption. Section 361.4, subdivision (a)(2), requires that “[p]rior to making emergency placement of child,” among other things, the Agency must obtain a criminal records check for all adults living in the home. “If the CLETS information obtained pursuant to paragraph (2) of subdivision (a) indicates that the person has been convicted of an offense described in subparagraph (B) or (D) of paragraph (2) of subdivision (g) of Section 1522 of the Health and Safety Code, the child shall not be placed in the home unless a criminal records exemption has been granted using the exemption criteria specified in paragraph (2) of subdivision (g) of Section 1522 of the Health and Safety Code.” (§ 361.4, subd. (b)(2).) Although Arthur’s home had been approved through the relative home assessment process (§ 16519.5) in 2014, Department of Social Services All County Letter No. 05-13 (ACL-05-13) states that an approval is good for 365 days, after which a new relative assessment is required before placement of a child. (ACL 05-13 at p. 12.) A trial court has no power to place a child where a criminal records exemption is required and the Agency has denied such exemption. (In re M.L., supra, 205 Cal.App.4th at p. 226.)
Arthur argues that a new assessment and exemption were not required under the law applicable at the time Ella requested the change in placement. We will not resolve the issue because it has become moot: As indicated above, Arthur’s home was approved through the RFA process on December 12, 2017. The absence of such an approval is the only basis for the Agency’s challenge to the court’s order.
“As a general rule, it is a court’s duty 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.’ ” ’ (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.) An appellate court will dismiss an appeal when an event occurs that renders it impossible for the court to grant effective relief. (Ibid.)” (In re N.S. (2016) 245 Cal.App.4th 53, 58-59.) While the Agency urges us to decide the issue under our discretionary authority to resolve a moot issue that is likely to recur (id. at p. 59), we do not find this an appropriate case in which to do so.
Similarly, no useful purpose would be served by our addressing the Agency’s argument that the juvenile court erred in finding that the Agency did not provide reasonable services. The juvenile court reached this conclusion because it found the Agency had attempted to thwart Ella’s wishes to live with her grandfather; the Agency views its actions as reasonable because it valued the stability of Ella’s longstanding placement with Kim. According to the Agency’s September 17, 2017, section 366.26 report, Ella is happy and doing well living with her grandparents. There is no current challenge to the placement. The Agency’s challenge to the juvenile court’s finding is not relevant to any issue requiring resolution on this appeal.
The Agency’s remaining argument is that the trial court erred in prohibiting it from contacting Ella without first contacting her attorney. The Agency cites no authority to support its assertion that the court lacked power to make this order. It asserts that the order frustrates its statutorily mandated duty to assess Ella’s situation and provide information to the court, but its September 2017 report reflects no difficulty performing this duty.
The juvenile court imposed this order to protect Ella: The record makes clear that the court found Ella credible and was convinced that the Agency had harmed her by repeatedly ignoring her wishes and imposing obstacles to any implementation of them. The Agency maintains there is no evidence that social workers provided false information to the court or harbored ill will toward Arthur, but the evidence was Ella’s testimony, which the juvenile court believed.
DISPOSITION
The orders are affirmed.



_________________________
Kline, P.J.


We concur:


_________________________
Richman, J.


_________________________
Miller, J.