Filed 11/29/18 In re W.T. CA1/2 (unmodified opinion)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

At all pertinent times, W.T., a dependent child within the jurisdiction of the Alameda County Family Court, was placed with Dawn H. These consolidated appeals present a single issue: while W.T. was a dependent child placed with Dawn H., was the Alameda County Social Services Agency (Agency) required to make monthly payments to Dawn H. for W.T.’s care? Thus, and unlike the overwhelming majority of dependency appeals, all that is in dispute here is money—who gets it, who must pay it, indeed whether it must be paid at all. These appeals are also noteworthy because they have been overtaken by events. In fact, the circumstances that have unfolded since entry of the orders the Agency wishes reviewed have rendered the controversy moot. And we thus dismiss the appeals.

BACKGROUND

The salient facts are undisputed.

In August 2014, W.T. was detained and placed in the care of Dawn H. Two months later, W.T. was made a dependent child. In March 2016, parental rights were terminated. The permanent plan goal was adoption, with Dawn H. clearly understood by all as being the most likely adoptive parent.

However, events took a decisive turn in July 2016, when the Agency sought court approval to remove W.T. from Dawn H.’s custody. These were the grounds given: “There has been an allegation of physical abuse by Dawn H[.] . . . towards her biological son. Alameda County Licensing has made a decision to begin the process of revoking her foster care license. Dawn H[.] has moved out of Alameda County to Elk Grove, CA. She is not a licensed foster care provider and she cannot be made a NRFM [non-related extended family member] . . . as she is no longer a licensed foster parent.”

The response from Dawn H. was immediate. She categorially denied “any and all allegations of abuse.” She is a serving member of the United States Navy, and the move to Sacramento County was the result of “transfer orders from the US Navy in early 2016.” The Agency knew of the move, made no objection, and told her relocating would cause “no trouble.” In fact, “my new home in Elk Grove was inspected and passed home inspection . . . and I was told orally that it met the criteria for NRFM.” Matters had sufficiently advanced in the adoptive process that Dawn H. asked to be designated as W.T.’s de facto parent and his prospective adoptive parent.

There were a number of hearings in July, August, September, and October 2016. The situation of a dependent child living in a different county with a foster parent facing a charge of abusing a different child in yet another county appeared to be unprecedented, causing considerable bureaucratic confusion. There was uncertainty, and discussion, about information (e.g., the amount of it, the dissemination of it, the freshness of it, whether the Agency knew in advance of the move to Sacramento); about the court’s power over a dependent child residing outside its jurisdiction; about the status of Dawn H.’s license; and about other various issues. Only two things emerged with certainty: First, over the Agency’s strong objection, the court granted Dawn H. status as an NRFM; the Agency did not object to de facto parent status. Second, upon being pressed by the court, the Agency agreed that W.T. was not in imminent danger of harm.

It was in November that the subject of money exploded onto the proceedings. Upon learning that W.T. might not be covered by MediCal, the court directed the Agency to obtain such coverage forthwith. When subsequently advised of a bureaucratic delay, the court was not understanding: “[T]hey need to come tell me what the holdup is. Because if you have a child that’s in care, you guys are not trying to remove the child from the placement that he’s in presently, and he needs medical care, there’s absolutely no excuse for why this needs to take weeks, upon weeks, upon weeks to travel up the food chain for somebody to say, ‘Yes, this child needs medical care in his county.’ ” Coverage was promptly obtained.

About the same time, on November 17, 2016, the court was advised by an Agency case worker “I just got word from our division that the Agency will pay Dawn county pay starting from the day that she lost foster funds back in whenever that date was, back when she moved to Elk Grove.” Moreover, “they will backdate the county pay. So whatever day she moved and foster care funding stopped, they will start from that day until the present and forward and pay with county.” The court learned from Dawn H.’s counsel that the last payment of her “$686 stipend” was in May, and that “[s]he’s been out-of-pocket for months,” and the arrearages were $4,116. At that point the court took the position that “I’m not going to get involved in that. I would ask that the Agency move swiftly to process this information, specifically since there’s already been a determination that it’s going to be done. The expectation is that that has already started, that process has started. What I would ask is that . . . [¶] . . . [¶] the Agency go back and determine how long that’s going to take and be able to get back to counsel about the expectation as far as the date that she would receive those funds.”

However, at the next hearing on December 14, 2016, the court was advised that the representations made at the November hearing were in effect unauthorized and would not be honored. The court was incredulous—and indignant:

“I have a child who’s a dependent of the court, who is sitting in a placement that clearly the Agency would like to change, but sitting back waiting for this legal process to kind of move forward, and there are no monies that are being provided to the person who is caring for the child. That makes absolutely no sense. It is asinine to think that I should somehow just assume that this child is going to be taken care of . . . .

“I can’t imagine how the Agency gets to a point, as much as they don’t like this pill that they may have to swallow, they say, ‘We’re not going to provide monies to take care of this child,’ who we know is with Ms. H[.] months, upon months, upon months without any monies, with her attorney saying, ‘This is getting hard. It’s [hard even getting] medical care.’ . . . It’s like what is the Agency doing? What is happening?

“And I am in a position where I need to act, and I need to act now, because this is on me, that this child is sitting in somebody’s house without any money to care for him. [¶] . . . I mean, there has been no clothes, no money, no nothing for the child in months. Maybe counsel can help me with how many months.

“[DAWN H.’s COUNSEL]: It’s been approximately eight months.”

Dawn H.’s counsel went on to suggest the “creative solution” of “the Court could order this as an NREFM placement at this point,” which counsel thought would overcome the Agency’s objections to Dawn H. being unlicensed.

Counsel for the Agency disagreed, and also made the comment that “the . . . county pay issue is not in this Court’s jurisdiction.”

To which the court responded: “So back to square one. What would you have the Court do for a child who is under the jurisdiction of this Court and nobody, the caregiver’s not receiving any funds to care for the child? I’m really interested in what the Agency thinks the answer to that question is.”

“Because what this Court is considering is that the Agency is derelict in their duties to make sure that the children who are—specifically this child, who is a dependent of the Court, are cared for. . . . [¶] . . . [R]eally, at least in my perspective, I just—I cannot—I understand that the Agency has their position, but at some point we have to take our head out of the sand and realize that there is a child that we’re talking about.”

“[S]ometimes we have to get past what our positions are and what we think should happen and should have happened, because this is one of those cases . . . . [E]verything that could happen did happen, and not in a good way. . . . I can’t in good conscience sit here and allow for a child to continue to not be funded by the Agency knowing that the child is . . . in a home, you know, with someone who’s caring for the baby, who’s working very hard to make sure that the [baby’s] needs are met, but that the Agency is saying, ‘Good luck, but you suffer through until we figure this out.’ That’s not appropriate. Because it’s the kid that I’m concerned about. It’s my job to do what’s in the best interest of the child.”

“And that’s all I care about . . . . I’m not especially interested in all the other stuff, you know, this special interest stuff. My only special interest is the child. And I think it’s almost criminal not to provide funds for a child who is a dependent of this Court.

“And what I am doing now, I think I have the authority to order the Agency to provide the current caregiver, Ms. H[.], with monies at the same rate she would have been provided monies for [W.T.] while he’s living in her home. We will litigate this further in January, but that order is also that the backpay [sic] monies for the last eight months now also be paid to Ms. H[.] because eight to nine months of no money for a child that is in her home is absolutely unacceptable. And I cannot in good conscience allow that to happen.”

“The child needs to be funded, That is an order forthwith, It needs to happen now, and I mean backpay [sic] as well.” The court refused to stay the order. The court mentioned to counsel for the Agency: “[T]ake me up if you’d like to. But I would love to see how the Court of Appeal looks at this.”

The Agency filed a timely notice of appeal from this order. This is appeal A150147. The Agency sought a writ of mandate, which we construed as a petition for supersedeas. After issuing a stay to consider the matter, we denied the petition and dissolved the stay.

The following occurred in 2017:

In February, while the court was conducting a lengthy contested status review, the money issue re-appeared.

On February 21, the court learned the Agency was taking the position that notwithstanding the actions of this court, the order of December 14, 2016, was automatically and statutorily stayed.

On February 23, counsel for the Agency explained its position regarding the status of the December order. When counsel advised the court that the Agency was willing to reimburse Dawn H. for expenses if she could provide receipts, the court summarized the evolution of the Agency’s position:

“The Agency is aware that they’re not providing any monies for the care of this child. It wasn’t until the caregiver said, ‘By the way, things are getting a little tight. Nothing’s happening,’ that the Agency now says, ‘Well, provide us with some receipts over the last several months.’

“Clearly that wasn’t the agreement before when you knew she was living in a county where she wasn’t a licensed foster care home and you were paying until this incident came up.

“So the Agency cannot have it both ways. You know that the child is in your care. Basically this child’s a dependent of this Court. And for us to say, ‘Sorry, we’re just not going to pay any money to provide food, clothing, et cetera for the child because it just doesn’t fall under any of our umbrellas,’ and then to say, ‘You know what, we will provide that money. Sorry, we made a mistake. We didn’t mean to say that.’ And then to say, ‘Why don’t you just provide us with receipts for your last nine months of things that you paid for, although you’ve not been told that you need to keep those receipts because you didn’t have to keep them before,’ is absolutely, at least in my opinion, disingenuous on the part of the Agency.”

“This has been going on for nine months. Nobody seemed to care that nobody’s receiving monies for this child. So clearly it’s not going to happen if I don’t make that order, which is why I did.

“The Agency had the ability to take this up on a writ. You did. That didn’t work out the way you expected it too. So now you can appeal it. . . . [¶] . . . [¶] Nobody has a problem with that. But we’re still back to square one . . . .”

“You still need to pay the money. This child should not be sitting in someone’s home without any regard by the Agency for how he’s being fed, clothed, et cetera.”

“So this Court is making the order yet again, notwithstanding there’s an appeal pending . . . , that the Agency pay the monies to Ms. H[.] forthwith. Not in four months. Not after the appeal. Forthwith. [¶] This is getting to a point where I have some significant concerns about how the Agency has been proceeding.”

Telling its counsel that the Agency was “standing on quicksand,” the court wondered whether “this is getting to a point where it feels almost personal.” Terming the Agency’s position “ridiculous,” the court stated: “I can’t in good conscience as a Dependency Judge . . . allow for that to happen on my watch. I cannot it. I will not do it.”

The next day, February 24, the court received a written statement of the Agency’s position, and heard further argument on the Agency’s request for reconsideration.

On March 3, the court reiterated its ruling: the Agency was to pay all arrearages by March 8, and the court would not stay this order.

On March 6, the Agency filed a timely notice of appeal from the March 3 order. This is appeal A150706.

The following day, the Agency filed a petition for a writ of supersedeas accompanied with a request for an immediate stay. We issued a stay. We denied the petition and dissolved the stay on June 7.

On March 10, the court held a “compliance hearing” at which it was advised of the stay. The court then stated: “In the meantime I still don’t think that the Agency has made appropriate—I shouldn’t even say ‘appropriate.’ I don’t think that the Agency has done anything to care for this minor. . . . [¶] . . . [¶] Has the Agency done absolutely anything to provide for the care and maintenance of [W.T.] between when you stopped paying Ms. H[.] and now?” Counsel for the Agency was unable to provide an affirmative reply. Counsel for Dawn H. told the court “we have received notice from the State Licensing Board that they are going to be seeking revocation [of Dawn H.’s foster parent license]. We now have notice from the Agency that they have turned down the NREFM adjudication for my client.”

During March and May, the court held an extended evidentiary hearing on the Agency’s request to remove W.T. from Dawn H.’s custody. On May 30, the court denied the request, and designated Dawn H. as the prospective adoptive parent,[1] with the following observations:

“[W.T.] is happy and healthy in the home that he lives in with Ms. H[.] That Ms. H[.] has been nothing less than an absolute wonderful parent to him. That she has loved him under difficult circumstances, as well as when it’s easy. That . . . she is the one that he comes to when he is happy and when he is sad. That the only real stability that he’s had in his life has been in the home with Ms. H[.] That even when she didn’t receive monies for [W.T.] she didn’t back off. She still parented him. She still kept him in her home. And she did whatever she could to make sure he was financially taken care of as well as emotionally taken care of. That she has fostered a relationship to the best of her ability with his biological family.

“I mean, all I can say is that it sounds like [W.T.] has a mother. And I’m not in the business of taking kids from good families, nor will I ever be. And the day I need to will be the last day I’ll be in this courtroom.”

“[T]he Court cannot make a finding that removal is appropriate in this case. And I do think that the adoption is absolutely appropriate in this case. And I’m ordering that that adoption move forward. Because of [W.T.]’s age and the fact that he requires some level of stability and consistency, the woman who has always been there to care for him, and has shown him nothing but love, support, and permanency should be the one to do that.

“So the Court is ordering that [W.T.] not be removed from the home of Ms. H[.], and that the adoption proceed accordingly.” “I think being adopted by M. H[.] is in the best interest of [W.T.]”

The Agency filed a petition for an extraordinary writ to set aside that decision. We denied the petition on the merits. (Alameda County Social Services Agency v. Superior Court (Jan. 5, 2018, A151481) [nonpub. opn.].)

On July 10, the court held a hearing on Dawn H.’s (informal, and apparently oral) request for an order to show cause. Before court convened, the court reviewed the transcripts of December 14, 2016, and February 23. Counsel for the Agency was told that the orders made on those dates were in effect, it was time for the Agency to cease “ignoring orders of this Court,” and “there needs to be a check here by the end of the day.”

It appears from various comments made at the hearing that the Agency had paid some of the arrearages, but only as the result of accident, not intention.[2] Counsel for Dawn H. requested that the Agency be cited for contempt, to which the court responded “I’m more than inclined to grant sanctions in this case,” “So I encourage you” to “file the necessary paperwork” because the court was “disgusted . . . with this process.” Indeed, the court reiterated that the Agency’s “disregard and disrespect in this court for a child . . . absolutely floors me . . . ecause . . . I’ve never seen anything like this.” The Agency did not provide a check to Dawn H. Here the record ends.

First, we took the unusual step of requesting an amicus brief from the State Department of Social Services (State Department). We did so because the Agency repeatedly took the position that when Dawn H. moved out of Alameda County, her foster care license was automatically forfeited by operation of Health and Safety Code section 1524. Given that it is the State Department that has the responsibility for revoking such licenses, we thought it would be useful to have its opinion of the statute’s operation.[b][3] (See American Coatings Assn. v. South Coast Air Quality Management Dist. (2012) 54 Cal.4th 446, 461 [courts “ ‘ “accord[] great weight and respect” ’ ” to administrative agency’s construction of statute the agency is charged with implementing].)

Second, ordinarily reviewing courts take no notice of events subsequent to entry of the judgment or order that is being reviewed. (See In re Zeth S. (2003) 31 Cal.4th 396, 405.) During the pendency of these appeals, it came to our attention that (1) the adoption of W.T. by Dawn H. was going forward, and (2) the State Department of Social Services was in the process of revoking Dawn H.’s license. We asked the parties to keep us advised.

Finally, Dawn H. filed a motion (with an accompanying request for judicial notice) asking that the Agency’s appeals ought to be dismissed as moot.

DISCUSSION

As already noted, there are three appeals by the Agency.

In A150147, the Agency argues (in its opening brief filed on March 27, 2017) that the December 14, 2016 payment order should be reversed because “Either the Order was an improper determination of eligibility of benefits, or it was a violation of the separation of powers and an improper gift of public funds. If the Order is interpreted as a determination of eligibility of benefits Dawn [H.] is required to exhaust her administrative remedies before a court can consider the issue.” And, the order “is error as a matter of law because the juvenile court lacked jurisdiction or statutory authority to make the Agency spend County treasury funds to pay for a placement that is ineligible for federal financial participation. . . . In the alternative, even if the court did not err as a matter of law, it abused its discretion in making such an order because the Order was unreasonable and unsupported by the evidence.”

In A150706, the Agency concludes its opening brief (filed on May 8, 2017) by urging we “should reverse the court’s [March 3] order denying a stay pending appeal, and further order that the money judgment is stayed until the related appeal [in A150147] is fully briefed and a decision is final.”

In A151843, the Agency opens its brief (filed October 31, 2017) that the July 10 order “must be interpreted as an order determining eligibility for foster care funding and an illegal gift of public funds” and “must be vacated and the caregiver must be held accountable to payback the County of Alameda taxpayers for all monies she has received as an unlicensed caregiver.”

As we requested, Dawn H.’s counsel has provided regular updates on the progress of the State Department administrative proceeding to revoke her foster parent license. A decision by an administrative law judge is expected.

Dawn H. has filed a request that this court take judicial notice of documents establishing that (1) W.T. became her adopted son on March 2, 2018, (2) W.T.’s dependency was terminated that same day, and (3) Dawn H. and the Agency reached an “Adoption Assistance Program Agreement” that entails a monthly “benefit of $923.00” commencing February 1, 2018. There being no opposition, the request is granted.[4]

Dawn H. believes these events have mooted the appeals, and she moves that they be dismissed on that ground. This motion the Agency does oppose: “Despite no longer being obligated to use County pay funds to provide Dawn a monthly stipend, this Court can still provide the Agency with effective relief by holding that the juvenile court’s order to pay Dawn was contrary to law. The reversal of the order—alone—would provide the County with effective relief by realigning the sensitive balance of powers between the legislative, executive, and judicial branches of government. Moreover, a reversal of the order would empower the Agency to recoup the taxpayer funds illegally expended if it should choose to do so.”

This court has stated: “ ‘An appellate court will not review questions which are moot and which are only of academic importance. It will not undertake to determine abstract questions of law at the request of a party who shows no substantial rights can be affected by the decision either way.’ ” (Friends of Bay Meadows v. City of San Mateo (2007) 157 Cal.App.4th 1175, 1192, quoting Topanga Assn. for a Scenic Community v. County of Los Angeles (1989) 214 Cal.App.3d 1348, 1366.)

More particularly: “A case is considered moot when ‘the question addressed was at one time a live issue in the case,’ but has been deprived of life ‘because of events occurring after the judicial process was initiated.’ [Citation.] Because ‘ “the duty of . . . every . . . 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 . . . to declare principles or rules of law which cannot affect the matter in issue in the case before it[,] [i]t necessarily follows that when . . . an event occurs which renders it impossible for [the] court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever, the court will not proceed to formal judgment . . . .” [Citation.]’ [Citation.] The pivotal question in determining if a case is moot is therefore whether the court can grant the plaintiff any effectual relief. [Citations.] If events have made such relief impracticable, the controversy has become ‘overripe’ and is therefore moot.” (Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1574.)

The situation, then, is this: Because W.T.’s dependency has been closed, the Agency would no longer be obligated by the juvenile court’s orders to make payments that go to foster caretakers of dependents. The Agency’s appeals from those orders, A150147 and A151843, would qualify as moot because there would be no practical relief in reversing orders that operated only in a situation that no longer exists. This is even more true of the Agency’s appeal in A150706, which only involves the denial of a stay of one of the two orders for payment. Moreover, because Dawn H. is now the adoptive parent of W.T., the issue of the status of her foster parent license is academic.

The Agency half-heartedly argues against mootness, claiming it is contesting “a matter of continuing public interest that is likely to recur.” But this court cannot recall a single instance where a juvenile court has had to order a social services agency to provide funds for the maintenance of a dependent child. Our research produced no such controversy that has ever generated a published decision. In these circumstances, the confrontation between the Agency and the juvenile court looks unique, and certainly not “likely to recur.”

As for the Agency’s seeking to claw back the funds paid for W.T.’s maintenance, we note that the possibility of future litigation does not disprove mootness. (See, e. g., Las Virgenes Educators Assn. v. Las Virgenes Unified School Dist. (2001) 86 Cal.App.4th 1, 9.) The Agency does not state positively that it will pursue the matter, only that it might “choose to do so.” That possibility would seem highly problematic as a litigation strategy. The Agency does not provide a specific figure of how much was, in the Agency’s view, “wrongfully” handed over to Dawn H. Moreover, it is unclear whether it would seek recovery of the payment made by bureaucratic inadvertence. Trying to recover money from an adoptive mother serving in our country’s military, money used to maintain the child who was later adopted, a mother and child who are now receiving a different—and greater amount—of assistance hardly appears a slam dunk.

Having gone through these records, and others, we cannot forbear from commenting on two features of our review. The whole point of the Juvenile Court Law is to promote the best interests of the minors who come within its jurisdiction. (Welf. & Inst. Code, § 202.) For dependencies, that means reuniting families if possible, and if not, providing permanent and stable homes for children removed from those families. This is bedrock. (E.g., In re K.C. (2011) 52 Cal.4th 231, 236; Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1008–1009; In re Marilyn H. (1993) 5 Cal.4th 295, 307.) However, it was notably rare for the Agency to state that W.T.’s best interest was its driving motivation. On the contrary, the near obsession with which the Agency resisted funding W.T.’s maintenance causes deep concern. To this day, it insists on trying to characterize the payments as if their object was to fund Dawn H.’s existence. But Dawn H. was simply a conduit for monies intended to maintain W.T. It never seems to have dawned on the Agency that what looked to be a case of the dependency system working as it should, with adoption clearly in sight, was being put at risk for the sake of a few dollars.

On the other hand, the best interest of the child was clearly never out of the mind of Judge Ursula Dickson Jones. She adhered to that goal with tenacity and a never-wavering dedication that was impressive—and inspiring—to this reviewing court.

DISPOSITION

The appeals are dismissed.

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Richman, Acting P.J.

We concur:

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Stewart, J.

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Miller, J.

A150147; A150706; A151843; Alameda Social Svcs. v. D.H.