In re Levi A.
Filed 10/12/07 In re Levi A. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re LEVI A., et al., Persons Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. YVONNE A., Defendant and Appellant. | D049880 (Super. Ct. No. J516309A-B) |
APPEAL from an order of the Superior Court of San Diego County, Julia Kelety, Judge. Dismissed.
Yvonne A. appeals an order of the juvenile court dismissing the section 300,[1]subdivision (b) petitions seeking to protect her minor children, Levi A. and Shyanne A. (the minors) from their maternal grandfather, David L. Yvonne contends the juvenile court erred by dismissing the petitions and returning the minors to David's custody because there was evidence showing they would be at risk of suffering harm in his care. She further asserts the court erred by weighing evidence presented at the contested jurisdiction hearing after Yvonne had entered a no contest plea.
The San Diego County Health and Human Services Agency (Agency) asserts the arguments raised by Yvonne on appeal are moot because following the juvenile court's order, the family court removed the minors from David's custody and returned them to Yvonne's custody. The minors, therefore, are no longer in need of the juvenile court's protection. We agree with the Agency. Accordingly, we dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2005 the San Diego Family Court gave David temporary custody of Levi and Shyanne after it determined Yvonne would not be able to properly care for the minors. Yvonne had left the minors in David's care while she served in the United States Army from October 2004 through February 2005. After being discharged from the Army due to an injury, she moved to Montana without the children. The minors remained in David's custody for the next year and a half and the family court oversaw the custody arrangement during this time. Yvonne eventually sought to regain custody of the minors in the family court.
In January 2006 David came under the investigation of the San Diego Police Department for possession of child pornography. The pictures showed David engaged in sexual intercourse with a young girl between the ages of 12 and 14 years old. David was naked in the pictures. David admitted taking the photographs but claimed the young female in the photograph was an 18-year-old woman he had met while in Tijuana. He further claimed he did not have sexual intercourse with the female. David carried one of these photos in his wallet. The police executed a search warrant of David's home and found additional evidence, including a videotape showing David having sex with an unidentified female.
In July 2006 the Agency filed petitions on behalf of six-year-old Levi A. and four-year-old Shyanne A. under section 300, subdivision (b). The petitions alleged the minors were at substantial risk of being sexually abused by their maternal grandfather, David L.
The juvenile court held a detention hearing and made a prima facie finding under section 300, subdivision (b). The court detained the minors and placed them with their maternal grandmother, Doreen L.
After numerous continuances, the court held a contested jurisdiction and disposition hearing in November 2006. The court reviewed the photographs and videotapes and dismissed the Agency's petition after finding there was insufficient evidence to show the minors were at risk of being sexually abused by David L. The court found some of the Agency's allegations true but also found the petition in its entirety did not support a true finding under section 300, subdivision (b). The court did find that David was in possession of pornographic photographs with him having intercourse with a female under 18 years of age. However, it noted no expert testimony had been presented showing that David would be a danger to the prepubescent children in his home. There also was no evidence showing the minors had been molested by David or that he was trying to "groom them for future molest." The court instead believed the minors were being well cared for in David's home. The court ordered the minors returned to David under the family court's August 2005 temporary custody order. Yvonne timely filed a notice of appeal.
In March 2007 the family court reviewed the videotapes and photographs found in David's possession that allegedly showed him involved in sexual acts with minor females. The family court found by a preponderance of the evidence that the minors were at risk of harm in David's custody. The family court removed the minors from David's custody and returned the minors to Yvonne.
DISCUSSION
I
Yvonne asserts the juvenile court erred by dismissing the petitions because there was substantial evidence to support a finding that the minors were at risk of sexual abuse if they remained in David's care. She further asserts: (1) the court abused its discretion by not removing the minors from David's custody; and (2) the court erred by weighing the evidence at the jurisdiction hearing after Yvonne entered a no contest plea.
A
On July 2, 2007, this court took judicial notice of a March 29, 2007, family court minute order showing that subsequent to the juvenile court's dismissal of the section 300, subdivision (b) petitions, the minors were removed from David's custody after the court found the minors were at risk in David's custody. Thus, because the minors are no longer at risk of being harmed by David, are back in Yvonne's custody, and their best interests are being monitored by the family court, this appeal is moot.
An appellate court will not review questions which are moot and only of academic importance, nor will it determine abstract questions of law at the request of a party who shows no substantial rights can be affected by the decision either way. (Keefer v. Keefer (1939) 31 Cal.App.2d 335, 337; see Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10.) The duty of an appellate court is to decide actual controversies and not to give opinions on moot questions or abstract propositions, or to declare principles of law that cannot affect the matter at issue in the case before it. (In re Audrey D. (1979) 100 Cal.App.3d 34, 39, fn. 4.)
Further, 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. (In re Jessica K. (2000) 79 Cal.App. 4th 1313, 1315-1316.) 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. (In re Dani R. (2001) 89 Cal.App.4th 402, 404-405; In re Dylan T. (1998) 65 Cal.App.4th 765, 769.)
Here, no effective relief can be afforded Yvonne as to the juvenile court's order.
The minors had been placed in David's care as a result of a family court custody order.
The child pornography allegations against David prompted the Agency to file petitions under section 300, subdivision (b) in an effort to protect the minors from David. The juvenile court dismissed the petitions and Yvonne appealed the juvenile court's order. However, the family court subsequently removed the minors from David's custody and gave custody to Yvonne. The minors, therefore, are no longer at risk of suffering harm in David's care and Yvonne has successfully regained custody of the minors. Further, the minors' custody case remains active in family court. That court is very familiar with the issues facing the minors and has presided over this family's custody disputes for several years. We are satisfied that the minors are being adequately protected by the family court and conclude that it is unnecessary for the juvenile court to simultaneously preside over these custody issues. Should the circumstances of the parties change, or in the event the minors become at risk of suffering harm in their current placement, adequate remedies are available to all parties in family court.
Yvonne has received the relief she sought in this appeal. The minors have been removed from David's custody and are now safe in her care. She is not entitled to relief beyond that which she has already obtained. Accordingly, we conclude the appeal is moot.
DISPOSITION
The appeal is dismissed as moot.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
Publication courtesy of California pro bono lawyer directory.
Analysis and review provided by Chula Vista Property line Lawyers.
[1] All statutory references are to the Welfare and Institutions Code.
