In re S.M.

Filed 7/19/06 In re S.M. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Julia Kelety, Judge. Dismissed.

Lucille S., de facto parent and paternal grandmother of S.M., appeals from an order of the juvenile court vacating court-ordered visitation and allowing the child's prospective adoptive parents to determine visitation. We dismiss the appeal as moot.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2001, S.M. became a dependent of the juvenile court shortly after her birth, due to her mother's incarceration and father's absence. In August 2005, after delays^[1] caused in part by inadequate notice pursuant to the Indian Child Welfare Act (25 U.S.C. § 1912 (the ICWA)), the court terminated parental rights to S.M. pursuant to Welfare and Institutions Code section 366.26.^[2] The factual and procedural history of the case is detailed in our opinion In re S.M. (2004) 118 Cal.App.4th 1108, and we need not repeat those details here.

The facts pertinent to this appeal are as follows: Lucille began visiting S.M. soon after she was removed from her mother's custody. In late September or October 2001, the San Diego County Health and Human Services Agency (the Agency) placed S.M. in Lucille's care. Lucille applied for an adoptive home study. However, the Agency's confidence in the adoption faltered after it learned that her fiancé had a criminal record. In March 2002, at Lucille's suggestion, the Agency placed S.M. with extended family members Carol and Lynell D. (foster parents), who quickly expressed an interest in adopting the child.

Lucille continued to visit S.M. weekly. The social worker described the visits as characterized by "emotional warmth" and Lucille's positive, affectionate, and nurturing interactions with S.M. During the summer of 2002, friction developed between the foster parents and Lucille, who wanted more frequent visitation. Lucille told the foster parents that she would seek S.M.'s removal from their home. This further impacted the foster parents' willingness to facilitate Lucille's visitation with S.M.

In October 2002, the court granted Lucille's application for status as S.M.'s de facto parent. At a second adjudication and disposition hearing (see In re S.M. (June 18, 2002, D039069) [nonpub. opn.]), Lucille asked the court to consider placing S.M. with her, or with other paternal relatives. The court found that S.M. did not have a relative who was able and willing to care for her and continued her placement with the foster parents. The court granted the foster parents' application for de facto parent status and authorized continued visitation between S.M. and her paternal relatives.

In August 2003, prior to a permanency plan hearing pursuant to section 366.26, Lucille filed a section 388 petition requesting that the court place S.M. with the child's paternal aunt and uncle. Following a combined hearing, the court denied Lucille's petition and terminated parental rights. The court specifically authorized Lucille's continued visitation with S.M. and, after remand from this court (see In re S.M., supra, 118 Cal.App.4th 1108), confirmed its visitation order in October 2004.

S.M. flourished in the foster care home. She became "very attached" to the foster parents and to their daughter, and the foster parents were committed to adopting her. S.M. continued to have monthly visits with Lucille. The Agency anticipated that S.M.'s adoption would be final within a few months; however, pursuant to an appeal by S.M.'s father, this court again remanded the case to the juvenile court to provide notice required by the ICWA. (In re S.M. (May 6, 2005, D045293) [nonpub. opn.].)

In September 2005, Lucille complained that she had had only one visit with S.M. since April, due to problems coordinating visits through the Agency. The court held a special hearing to address the issue. Lucille informed the court that she had been arranging visitation with the foster parents instead of going through the Agency, and that the visitation problem was resolved.

Two months later, after receiving a letter from the foster mother, the court set a special hearing to "address paternal grandmother's visitation in light of concerns stated in [the foster mother's] correspondence." At the proceeding, the court advised Lucille that the letter contained negative comments about her visits with S.M. and that the court was concerned that the child was "being poisoned against the [foster parents]." The letter from the foster mother was not admitted in evidence, and the foster mother did not testify under oath. Lucille was not represented by counsel.

Lucille stated that this was the first time she had heard these concerns. She was surprised and shocked by the allegations, and considered them to be an attack on her character. Lucille asserted that the foster mother's statements were not true. She said that she had raised four children without a father, and she never put a "bad word in their ears" about him because he loved them. Lucille loved S.M. and she would never say or do anything to hurt her. If the court could observe them together, the court would see the "real truth."

The court explained that it was not making any factual or negative findings about Lucille or her family, noting that Lucille had shown a "faithful interest" in S.M. during the prolonged dependency proceedings and that she had not done "anything wrong." However, the court wanted to support S.M.'s permanent relationship with the foster parents, who would soon adopt her. At this time, the foster parents believed it would be best for S.M. if her contact with Lucille was limited. In view of the short time before the anticipated adoption, the court wanted to defer to the foster parents' judgment concerning S.M.'s best interests and vacated its prior orders authorizing Lucille's visitation.

MOTIONS ON APPEAL

On April 25, 2006, the Agency filed a motion to dismiss this appeal as moot, and asked this court to take judicial notice of the juvenile court's order of April 21, finalizing S.M.'s adoption by the foster parents and terminating its jurisdiction. Lucille filed an opposition to the motion to dismiss and to the request for judicial notice, arguing that this court's consideration of postjudgment evidence is barred by In re Zeth S. (2003) 31 Cal.4th 396 (Zeth S.). On May 8, we ordered that the motion and the opposition to the motion be considered concurrently with the appeal.

On May 30, we granted the Agency's unopposed request for judicial notice of this court's dismissal of Lucille's appeal from the April 21 order terminating juvenile court jurisdiction. (See In re [S.]M. (May 11, 2006, D048538) [order].)

Judicial notice by this court of the juvenile court's order of April 21 is not inconsistent with Zeth S. That case stands for the proposition that postjudgment evidence of a child's custody status should not be routinely and liberally considered in appeals from an order terminating parental rights pursuant to section 366.26. (Zeth S., supra, 31 Cal.4th at p. 412.) Here, unlike in Zeth S., judicial notice of the juvenile court's order finalizing S.M.'s adoption would not "allow [or] encourage the reopening of any foundational order or finding in support of the judgment terminating parental rights." (Id. at p. 413; see In re Karen G. (2004) 121 Cal.App.4th 1384, 1389-1390 [a Court of Appeal may consider postjudgment evidence in determining whether an appeal has become moot].) We take judicial notice of the April 21 order terminating juvenile court jurisdiction.

DISCUSSION

Introduction

Lucille contends that the court erred when it vacated its previous orders granting her the right to visit S.M. (visitation order). She asserts that, as a de facto parent, she had a right to assert her interest in her granddaughter's companionship, care and custody (In re B.G. (1974) 11 Cal.3d 679, 693) and that, as her grandmother, she had a fundamental interest in preserving the ties between S.M. and her natural family (see In re Shirley K. (2006) 140 Cal.App.4th 65, 74.) Lucille argues that the court violated her right to due process by substituting unsworn statements in place of legally cognizable evidence, and that the court denied her a meaningful opportunity to be heard, to present and challenge evidence, and to argue the law and the facts developed in the hearing. (Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314; In re Malinda S. (1990) 51 Cal.3d 368, 383, fn 16; In re James Q. (2000) 81 Cal.App.4th 255, 263, 265; In re Matthew P. (1999) 71 Cal.App.4th 841, 844, 849-851; In re Jonique W. (1994) 26 Cal.App.4th 685, 693; see Cal. Rules of Court, rule 1412(j).)

The Agency responds that the matter should be dismissed as moot. It contends that adoption vests the adoptive parents with the right to determine matters relating to the child's care and upbringing, including visitation. (Fam. Code, § 8616.) The Agency points out that although Family Code section 3104, subdivision (b), permits a grandparent to bring a petition for visitation in specific circumstances,^[3] none of those circumstances currently exists in this case. Further, the Agency argues that the visitation order at issue was not inherently negative and that it would not impact a decision by the family court in the event circumstances in the future permit Lucille to petition for visitation pursuant to Family Code section 3104.

Lucille contends that an appeal is rendered moot only when it has become "impossible" for the court to grant the appellant "any effectual relief whatever." (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1976) 67 Cal.2d 536, 541 (Eye Dog).) She argues that it is not impossible for this court to grant effective relief because, as a grandparent, she retains the statutory right to petition the family court for visitation pursuant to Family Code section 3104. Lucille concedes that the prejudicial impact of the visitation order on any visitation proceeding in family court is speculative.

The Appeal Is Moot Because This Court Cannot Grant Effective Relief

Although Lucille's argument questioning the fundamental fairness of the proceedings in the juvenile court with respect to Lucille's visitation with S.M. is not without merit, we are compelled to dismiss the appeal as moot. "When no effective relief can be granted, an appeal is moot and will be dismissed." (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1316, citing Eye Dog, supra, 67 Cal.2d at p. 541.)

Even if this court were to reverse the visitation order, the subsequent juvenile court order finalizing S.M.'s adoption by her caregivers would remain in effect. Thus, the juvenile court no longer has jurisdiction to enforce an order granting Lucille visitation. (§ 366.3, subd. (a); cf. § 366.29 [enforcement of post-adoptive sibling visitation].) The foster parents, who are now S.M.'s parents, have the right and the responsibility to direct her care and upbringing. (Fam. Code, § 8616; Stanley v. Illinois (1972) 405 U.S. 645, 651; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 260-261.) This includes the right to control S.M.'s visitation and contact with her grandparents. (Troxel v. Granville (2000) 530 U.S. 57, 68-70.) Although Lucille retains the statutory right to petition the family court for visitation in the event certain circumstances occur in the future, whether she will have occasion to do so remains speculative. (See Fam. Code, § 3104, subd. (b).)

Further, as Lucille concedes, even if she were able to meet the threshold requirements to be afforded a hearing in family court, the prejudicial effect of the challenged visitation order on subsequent proceedings is speculative. At the time the juvenile court entered the order, it expressly noted that it was not disallowing or prohibiting Lucille's visitation with S.M.; rather, it was leaving the decision to the prospective adoptive parents. The record in this case shows that Lucille had a positive, affectionate and nurturing relationship with her granddaughter. In view of the juvenile court's acknowledgment that Lucille displayed an abiding interest in S.M.'s welfare throughout the lengthy dependency case, it does not appear that Lucille will be prejudiced by the visitation order at issue.

" '[T]he duty of this court, as of every other judicial tribunal, 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 . . . which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.' " (Consolidated Vultee Aircraft Corp. v. United Auto. etc. (1946) 27 Cal.2d 859, 863; Eye Dog, supra, 67 Cal.2d at p. 541; In re Jessica K., supra, 79 Cal.App.4th at p. 1316.)

DISPOSITION

The appeal is dismissed as moot.

AARON, J.

WE CONCUR:

NARES, Acting P. J.

O'ROURKE, J.

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^[1] The court selected adoption as S.M.'s permanent plan and terminated parental rights in November 2001.

^[2] Unless otherwise indicated, further statutory references are to the Welfare and Institutions Code.

^[3] These circumstances are: (1) the parents are currently living separately and apart on a permanent or indefinite basis; (2) one of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse; (3) one of the parents joins in the petition with the grandparents; and (4) the child is not residing with either parent. (Fam. Code, 3104, subd. (b).)