In re S.M.













Filed 3/8/17 In re S.M. CA4/2










NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re S.M., a Person Coming Under the Juvenile Court Law.


RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,

Plaintiff and Respondent,

v.

K.R.,

Defendant and Appellant.



E065654

(Super.Ct.No. INJ1500246)

OPINION


APPEAL from the Superior Court of Riverside County. Susanne S. Cho, Judge. Dismissed.
Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.
Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
Appellant K.R. (mother) appeals from the juvenile court’s orders denying her motion under Welfare and Institution Code[1] section 388. The Riverside County Department of Public Social Services (DPSS) moved to dismiss mother’s appeal as moot since the juvenile court has terminated the dependency, and joint physical and legal custody has been granted to mother and the child’s father, J.H. (father). This court denied the motion to dismiss without prejudice. We now dismiss the appeal as moot.
PROCEDURAL BACKGROUND[2]
On July 31, 2015, DPSS filed a section 300 petition on behalf of the child, S.M. (the child), who was one month old at the time. The petition alleged that he came within the provisions of section 300, subdivision (b) (failure to protect). Specifically, it alleged that the alleged father, T.M., had an extensive substance abuse history and a drug-related criminal history. The petition alleged that mother minimized T.M.’s active substance abuse and allowed him to reside with and care for the child. The petition further alleged that another alleged father (father) was not a member of the child’s household, and he had failed to provide the child with any type of support.
On August 27, 2015, the social worker filed an amended section 300 petition, adding an allegation pursuant to section 300, subdivision (b), that mother had a history of abusing methamphetamines and heroin, with her most recent use of methamphetamines on July 15, 2015.
The social worker filed a jurisdiction/disposition report on August 28, 2015,and reported that mother was significantly impaired due to brain damage from a childhood illness. Nonetheless, the social worker found her capable of parenting the child and benefitting from services. In an addendum report filed on September 25, 2015, the social worker reported that the results of the paternity test showed that father was the biological father of the child.
The court held a contested jurisdiction/disposition hearing on October 1, 2015. At the outset, the parties agreed to have the court dismiss the allegations in the section 300 petition against T.M., since he was not the child’s father. Counsel for father then argued that the allegation concerning him should also be stricken since he was not even aware the child was born until the day before the social worker contacted him. Once he was notified of the child’s birth, he drove from Oklahoma to California to attend the hearings.
The court found the allegation regarding father to be not true. It then adjudged the child a dependent, removed the child from mother’s custody under section 361, subdivision (c)(1), and gave physical custody of the child to father subject to the court’s supervision. The court ordered mother to participate in reunification services. The court further ordered DPSS to ensure that mother had in-person visits with the child once a month. Visits were to be unsupervised, but T.M. was not to be near the child. The court also authorized DPSS to permit overnight or weekend visits, but not until a social worker “[was] satisfied that it [was] okay to do so.”
On October 1, 2015, mother filed a notice of appeal from the court’s removal order. This court affirmed the order. (In re S.M., supra, E064582.)
On February 29, 2016, mother filed a section 388 petition, requesting the court to change the October 1, 2015 order removing the child from her and placing him with father. She alleged that father, who was in the military, was deployed in November 2015, and the child had been living with father’s friend since that time. Mother said she began a MOM’s program on October 26, 2015, and that T.M. started an inpatient drug program on November 2, 2015.She requested the court to place the child with her on family maintenance.
The social worker filed an addendum report on March 9, 2016, recommending that the child remain in father’s custody and that mother continue to be provided with reunification services. Mother was making good progress in her MOM’s program, which included group meetings and urine drug screens. The social worker further explained that, prior to deployment, father made arrangements for the child to be cared for by a paternal relative. Mother had been having visits with the child once a week.
On March 10, 2016, the social worker filed a six-month status review report recommending that the dependency be terminated, with a family law order granting joint legal custody to mother and father, with primary physical custody to father.
On March 14, 2016, the court held a hearing on the section 388 petition. After hearing counsel’s arguments, the court denied the petition. Mother filed a notice of appeal from the denial on March 17, 2016.
The court held a six-month status review hearing on May 16, 2016, and granted joint physical and legal custody to mother and father, with father having primary physical custody. Specifically, the court ordered mother to have the child for two months out of the year, plus during spring break every other year, and reasonable visits when she was present in father’s resident state. The court further ordered the dependency to be terminated.
ANALYSIS
Mother’s Appeal is Moot
Mother argues that the juvenile court abused its discretion in denying her section 388 petition, which requested placement of the child with her on family maintenance. She asserts that the court effectively denied the child “the care of a mother who demonstrated to the court that she was readyand able to parent him,” when it could have “ordered a plan of family maintenance for bothparents and divided the time spent with the parents accordingly.”Thus, she now requests this court to reverse the order and remand the matter with an order of family maintenance services for her.DPSS argues that mother’s appeal is moot since legal and physical custody has already been awarded to both parents. We agree that the appeal is moot.
“As a general rule, appellate courts decide only actual controversies. Thus, ‘it has been said that an action which originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised therein have become moot by subsequent acts or events.’ ” (In re Christina A. (2001) 91 Cal.App.4th 1153, 1158.) If a reversal would have no practical effect, the appeal should be dismissed. (In re Dani R. (2001) 89 Cal.App.4th 402, 404.)“The question of mootness must be decided on a case-by-case basis.” (In re Dylan T. (1998) 65 Cal.App.4th 765, 769.)
Mother’s claim that the court should have granted her section 388 petition is moot since she has now been afforded the remedy sought in the petition, minus family maintenance services. Legal and physical custody of the child was awarded to both her and father, and the dependency was terminated. “ ‘When it appears that a controversy which is the subject of [an order] from which an appeal has been taken no longer exists, it is the duty of the court to dismiss the appeal.’ ”(In re Ruby T. (1986) 181 Cal.App.3d 1201, 1204.)
In her reply brief, mother argues that her appeal is not moot because consideration of the evidence that the court granted joint physical and legal custody to her and father and terminated the dependency “does not assist this Court in resolving [the] question” of whether the court erred in denying her section 388 petition. She further claims this court can “fashion an effective remedy” by finding that the court erred and granting her requested relief. Finally, she asserts that we should not dismiss the appeal because the issue she raises is important and capable of repetition while evading review. (In re Miguel A. (2007) 156 Cal.App.4th 389, 392.)
Mother’s responses in her reply brief simply ignore the mootness of her appeal. (See ante.) Furthermore, we reject her characterization of the issue she raises as being of continuing public interest and capable of repetition, while evading review.Her appeal does not pose any general issue of continuing public interest likely to recur, but rather fact-specific claims that the court erred in not finding that her circumstances had changed or that it was in the child’s best interest to place him with her. The issue is not likely to recur since she now has joint legal and physical custody of the child.
DISPOSITION
The appeal is dismissed as moot.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST
Acting P. J.
We concur:



CODRINGTON
J.



SLOUGH
J.




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[1] All further statutory references will be to the Welfare and Institutions Code, unless otherwise indicated.

[2] We take judicial notice of our opinion in the prior appeal (In re S.M.(July 22, 2016, E064582) [nonpub. opn.]). The majority ofthe procedural background is taken from that opinion. (Evid. Code, § 452, subd. (d).)