Filed 3/22/22 In re J.C. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from orders of the Superior Court of Orange County, Antony C. Ufland, Judge. Dismissed. Request for judicial notice denied.

Elena S. Min under appointment by the Court of Appeal, for Appellant.

Leon J. Page, County Counsel, Karen L. Christensen, Aurelio Torre, Deputy County Counsel, for Respondent.

Maternal grandmother J.S. (Grandmother) appeals from an April 2021 order denying her request for placement of dependent minors J.C., M.M., and Baby Boy S. (collectively Minors unless context requires otherwise) made pursuant to Welfare and Institutions Code section 361.3.[1] Grandmother asserts the court abused its discretion by failing to return the Minors to her care after their December 2020 removal from her home. She also maintains the court erred by refusing to grant her request to be deemed a de facto parent.

Several months later, and after Grandmother filed her notice of appeal, the juvenile court terminated the parental rights of the Minors’ biological mother (Mother) and respective fathers. We dismissed Mother’s appeal from the termination order after her counsel filed a brief raising no arguable issues. (In re Sade C. (1996) 13 Cal.4th 952.)[2] The Minors’ respective fathers did not participate in the dependency proceedings nor file appeals.

Recognizing the parental rights termination order would soon be final, we ordered the parties in this appeal to include in their briefing a discussion about “whether subsequent orders of the juvenile court terminating parental rights render the appeal moot. (See Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1031 [(Cesar V.)]

[It is well-established that the relative placement preference found in section 361.3 does not apply after parental rights have been terminated and the child has been freed for adoption]; In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316 [(Jessica K.)] [‘When no effective relief can be granted, an appeal is moot and will be dismissed’].)”

Grandmother asserts we should consider her appeal because she raises an issue of public importance. Moreover, she believes this court has the authority to “reverse any termination of parental rights to conduct a new section 366.26 hearing to consider . . . relative placement issues . . . .” She is incorrect. Because the orders terminating parental rights and freeing the children for adoption were not appealed, and have since become final, we cannot provide Grandmother with any effective relief. Her appeal is moot and we must dismiss it.

FACTS AND PROCEDURAL BACKGROUND

Because the parents did not challenge the termination orders on appeal, we will only discuss facts relating to the parents that are necessary to Grandmother’s claims. Minors came under the juvenile court’s jurisdiction in March 2020, following Baby Boy S.’s birth because he and Mother tested positive for opiates. Mother, who was homeless, had an extensive substance abuse history and a criminal history. The court determined Mother was unable to adequately care for her other children. In July 2017, Mother placed J.C. (then age five) in the care of Grandmother and maternal grandfather (Grandfather.) In January 2019, Mother gave birth to M.M. while she was incarcerated, and she asked Grandmother to take care of him. Both children had physical and mental special needs.

The juvenile court exercised jurisdiction over Minors, and in August 2020 entered the dispositional order removing them from parental custody. The Orange County Social Services Agency (SSA) agreed to an emergency placement of the Minors with Grandmother and Grandfather pending approval of their resource family approval (RFA) application. At the Minors’ dispositional hearing, the court told Grandmother her request for guardianship and/or to be a de facto parent were premature. The court noted it was important Grandmother cooperate with SSA’s reunification efforts.

On December 15, 2020, a social worker informed Grandmother and Grandfather that their RFA application was denied. SSA placed the Minors with different caregivers, where they remained for the rest of the case.

Grandmother filed a “motion for relative standing,” which included her “objection to removal,” a “request for independent review of relative placement,” and a request for de facto parent status. (Capitalization omitted.) On January 12, 2021, the juvenile court ordered SSA to prepare a report in response to the de facto parent request and scheduled a hearing date in February 2021. At the hearing, the court considered testimony from the assigned social worker, Grandmother, and Grandfather.

After hearing closing arguments, the court determined section 362.1 applied because the underlying dependency case was at the “procedural position” of services terminated but before the section 366.26 permanency hearing “so parental rights have not been terminated.” It noted Grandmother received the benefit of section 361.3 because the Minors were initially placed with her, however, after the RFA application was denied, SSA appropriately removed the children from her care. The court explained it understood the reasons supporting a relative placement preference but that it must balance the benefits of maintaining those family relationships against the best interests of the children when considering placement. The court stated the following: “Caretakers have to understand that they’re in a position where they have to figure out how to meaningfully interact with and work with [SSA] to ensure the best interests of the children. And if they can’t do that because they are too ingrained in what they believe to be the -- what is best for the child, where that gets in the way of them following the agency’s rules or court orders, then the best interests of the children are put at risk, and that, unfortunately, is what happened in this case.” After considering argument from counsel, the court denied the placement motion as well as the de facto parent request.

DISCUSSION

SSA argues Grandmother’s appeal is moot because (1) no appeal was taken from the orders terminating parental rights and freeing the children for adoption, and those orders are now final, (2) the relative placement preference does not apply to adoption, and (3) conferring de facto parent status after the dependency case was closed would be an idle act. We agree the appeal is moot because even if Grandmother was correct on the merits of her appeal, we cannot provide her with the relief she seeks, i.e., return of the Minors to her care.

“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.’”’ [Citation.] An appellate court will dismiss an appeal when an event occurs that renders it impossible for the court to grant effective relief. [Citation.]” (In re N.S. (2016) 245 Cal.App.4th 53, 58-59.)

“An order of the dependency court terminating parental rights may be modified only by a timely direct appeal from the order. [Citation.] It is not subject to collateral attack, such as by petition for writ of habeas corpus. [Citation.]” (Jessica K., supra, 79 Cal.App.4th at p. 1316.) For example, in the Jessica K. case, a mother timely appealed from an order denying her petition under section 388 requesting her child be returned to her custody. The juvenile court terminated the mother’s parental rights while her appeal was pending, but she did not appeal the judgment. (Jessica K., supra, 79 Cal.App.4th at pp. 1315-1316.) The court concluded this final order rendered her appeal moot. “In this case, mother appealed from the order summarily denying her section 388 petition, but did not appeal from the order terminating parental rights, allowing the termination order to become final. The failure to file a timely notice of appeal from the termination of parental rights order deprives us of appellate jurisdiction to modify that order. Accordingly, the parental rights termination order may not be vacated. No effective relief may be afforded mother even were we to find her appeal of the denial of the section 388 petition meritorious. Thus, the appeal is moot.” (Id.

at pp. 1316-1317.) The appellate court dismissed the appeal.

Here, Grandmother timely appealed from the orders denying her request for relative placement preference and de facto parent status. But before the matter could be considered by this court, the juvenile court terminated parental rights and freed the children for adoption. The parents did not appeal from the termination order and the orders terminating parental rights and freeing the children for adoption are now final. (In re Carrie M. (2001) 90 Cal.App.4th 530, 533 [“An order is final when the time for appeal has expired and no timely appeal has been filed or the order has been appealed and affirmed”].)

Even if we assume for the sake of argument that Grandmother was correct on the merits of her appeal, we cannot provide her with the relief she seeks. Section 361.3’s relative placement preference does not apply after the court has terminated parental rights and the children have been freed for adoption. (Cesar V., supra, 91 Cal.App.4th at p. 1031.) We have no jurisdiction to modify the termination of parental rights order or reset the clock to before the permanency hearing. (Jessica K., supra, 79 Cal.App.4th at pp. 1316-1317.) Finally, even if Grandmother was now deemed to be a de facto parent, this new status would not give her the right to seek placement of Minors. (In re A.F. (2014) 227 Cal.App.4th 692, 700.) “De facto parent status ‘merely provides a way for the de facto parent to stay involved in the dependency process and provide information to the court.’ [Citation.]” (Ibid.)

Relying on In re Esperanza C. (2008) 165 Cal.App.4th 1042, Grandmother incorrectly asserts this court could reverse the placement decision and the termination of parental rights, permitting Grandmother to not only gain custody but also be granted adoptive preference. She misreads the case. In Esperanza C., a parent made a timely challenge to the parental rights termination order, allowing for reversal of both that order and the relative placement orders. Specifically, in that case the juvenile court denied a relative’s petition for placement under section 388 before terminating a mother’s parental rights. The court determined the mother had standing to challenge the placement issue on appeal because “placement of a child with a relative has the potential to alter the juvenile court’s determination of the child’s best interests and the appropriate permanency plan for that child, and may affect a parent’s interest in his or her legal status with respect to the child. [Citations.]” (Id. at p. 1054.)

From this case and others, our Supreme Court “derive[d] the following rule: A parent’s appeal from a judgment terminating parental rights confers standing to appeal an order concerning the dependent child’s placement only if the placement order’s reversal advances the parent’s argument against terminating parental rights.” (In re K.C. (2011) 52 Cal.4th 231, 238 (K.C.).) The Supreme Court held this rule, however, would not support a parent’s claim of standing to appeal a child’s placement if he or she does not also contest the termination of parental rights. (Ibid.) It rejected a father’s claim to be aggrieved by the juvenile court’s order denying the paternal grandparents’ request for placement of the child with them. It reasoned father appealed from the order denying the grandparents’ request and the judgment terminating his rights, but “limited his argument to the question of [the child’s] placement.” (Id. at p. 235.) The court explained, “By thus acquiescing in the termination of his rights, [father] relinquished the only interest in [his child] that could render him aggrieved by the juvenile court’s order declining to place the child with grandparents.” (Id. at p. 238, fn. omitted.)

As applied to this case, the Minors’ parents did not challenge the termination order, and therefore, could not claim they were aggrieved by the court’s order declining a particular relative placement or a de facto parent designation. Grandmother cannot seek to resurrect parental rights that the Minors’ parents willingly relinquished. No public policy nor legislative goal in dependency law would be advanced if we were to accept Grandmother’s theory a final order of the juvenile court terminating parental rights could be subject to collateral attack by a grandparent, but not a parent. (See K.C., supra, 52 Cal.4th at p. 238 [father lacks standing]; Jessica K., supra, 79 Cal.App.4th at p. 1316 [no collateral attack by mother].)

We are also not persuaded by Grandmother’s argument this court should “exercise its inherent discretion to resolve an issue rendered moot by subsequent events [because] the question to be decided is of continuing public importance and is a question capable of repetition, yet evading review. [Citations.]” (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404.) She argues the issue of placing children with relatives is obviously an issue of public importance because the Legislature enacted statutes creating relative preferences. To prove her point, she refers to multiple cases discussing the issue. Ironically, this argument proves “the issue” has not evaded review and has already been recognized as an issue of public importance. After carefully reviewing the record, we found no reason to file an advisory opinion merely applying well established case authority to the facts of this case. As noted by Grandmother in her briefing, all her contentions on appeal must be reviewed for abuse of discretion. (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 863 [review of relative placement decisions]; In re

Leticia S. (2001) 92 Cal.App.4th 378, 381 [review of de facto parent status decisions].)

On a final note, we appreciate Grandmother’s frustration and dismay with the significant delay caused by the juvenile court’s error in filing the entire dependency case as part of the original record on appeal. The record required multiple corrections which delayed briefing for several months. We hope proper training in superior court will prevent these errors from reoccurring. Nevertheless, we do not reach the same conclusion as Grandmother that this delay created “a significant miscarriage of justice and operate[s] to insulate an otherwise erroneous ruling from review.” We do not fault either party for the time lost, and our decision is in no way based on the holdup created by the need to maintain the confidentiality of juvenile court records pursuant to section 827, subdivision (a)(1), and California Rules of Court, rules 5.552(b) and 8.401(b). Contrary to Grandmother’s assertion, the interruption in these appellate proceedings cannot confer jurisdiction on this court to consider an issue rendered moot by subsequent orders of the juvenile court.[3]

DISPOSITION

The appeal is dismissed. We deny Respondent’s request for judicial notice of the confidential appellate court docket.

O’LEARY, P. J.

WE CONCUR:

GOETHALS, J.

MARKS, J.*

*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] All future statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

[2] On our own motion, we take judicial notice that Mother’s appeal from the order terminating parental rights was dismissed on October 21, 2021 (G060534). (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).)

[3] We are aware California Rules of Court, rule 8.416(e)(1), shortens the time for record preparation and briefing in appeals terminating parental rights “To permit determination of the appeal within 250 days after the notice of appeal is filed . . . .” In this case, the rules requiring us to maintain the confidentiality of juvenile court records required multiple corrections to the appellate record. This unavoidably slowed the process of the appeal so that our opinion was filed beyond the 250 day target.