In re Amanda A.

Filed 8/9/07 In re Amanda A. CA1/4

Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

At the 12-month review hearing in the dependency of Amanda A. and Aaron A., the juvenile court found that returning the children to their mother, appellant Marie F.-A., would create a substantial risk of detriment. Two months later, the juvenile court returned the minors to Maries custody. On appeal, Marie challenges the sufficiency of evidence to support the juvenile courts refusal to return her children at the 12-month hearing.^[1] As the children were returned to Maries custody after that time, we dismissed her appeal as moot. After granting rehearing on our own motion and having considered the arguments of both parties, we again find that the underlying appeal is moot.

I. Background

In April 2005, respondent San Mateo County Human Services Agency filed juvenile dependency petitions on behalf of Amanda and Aaron A., alleging that their mother, Marie F.-A., had failed to protect the children from regular verbal and physical domestic violence in the home. (Welf. & Inst. Code, 300, subd. (b).) The agencys petitions were sustained by the juvenile court.

In August 2006, a 12-month review hearing was held. The juvenile court found that return of the children to Maries custody would create a substantial risk of detriment to them. Thus, it ordered that the childrens out-of-home placement continue. It did allow both Amanda and Aaron to have overnight visitations with their mother beginning later that month. Marie filed a timely notice of appeal from this ruling in August 2006. In October 2006, two months after denying Maries request to return Amanda and Aaron to her, the juvenile court did return the minors to her custody.^[2]

In April 2007, the minors were again detained and removed from Maries care. They were placed with an aunt and uncle. A supplemental petition was filed at that time. (See Welf. & Inst. Code,  387.) On June 21, 2007, Maries reunification services were terminated by the juvenile court, which set an October 16, 2007, permanency planning hearing date. On June 27, 2007, Marie filed a notice of intent to file a writ petition challenging the termination of her reunification services. On August 1, 2007, she filed her petition.

Meanwhile, on June 28, 2007, we filed our initial decision in this matter, finding that Maries appeal from the August 2006 order was rendered moot by the juvenile courts October 2006 order returning the minors to her custody. On July 18, 2007, we granted rehearing on our own motion and asked the parties to file letter briefs on the issue of whether the October 2006 return of the minors to Maries custody rendered moot her appeal from the August 2006 order denying such a return.

II. Mootness

The juvenile courts October 2006 order returning the minors to Marie raises the question whether her appeal from the August 2006 refusal to return the minors to her has been rendered moot. A question becomes moot when, during the pendency of an appeal, events transpire that prevent a court from granting any effectual relief. (See Lester v. Lennane (2000)84 Cal.App.4th 536, 566; see also Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863.) In a dependency case, the question of mootness is decided on a case-by-case basis. (In re Dani R. (2001) 89 Cal.App.4th 402, 404.) An action that was originally based on a justiciable controversy cannot be maintained on appeal if all the questions have become moot because of subsequent acts. As a reversal in such a case would be without practical effect, the appeal must be dismissed. (Ibid.; see 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 642, pp. 669-671.)

For example in In re Dani R., a mother appealed from a judgment denying reunification with her son, claiming that she had been denied reunification services. The juvenile court later granted the mothers petition for reunification. The appellate court held that the appeal became moot once her motion was granted. (In re Dani R., supra, 89 Cal.App.4th at p. 406; see In re Pablo D. (1998) 67 Cal.App.4th 759, 761.) The facts in this appeal are comparable. Even if we held in her favor on appeal, Marie would receive no meaningful relief since the juvenile court had already returned her children to her.

In her letter brief, Marie argues that the appeal is not moot because if the juvenile court erred in finding that return of the minors to her custody in August 2006 would create a substantial risk of harm, this error could infect subsequent proceedings. (See, e.g., In re Joshua C. (1994) 24 Cal.App.4th 1544, 1548.) She suggests that the August 2006 finding had some bearing on the juvenile courts determination to remove the minors from her again in April 2007. We take judicial notice of the April 2007 removal order, but find it has no bearing on the issue of whether the August 2006 appeal became moot when the October 2006 order issued. In October 2006, the appeal was moot. The April 2007 removal order could not revive an appeal that had been rendered moot six months earlier.

For its part, the agency argues that the appeal is moot on two groundsbecause of the October 2006 juvenile court order and because Marie filed an extraordinary writ petition challenging the June 21 order terminating her reunification services and setting an October 16 permanency planning hearing date. As we find that the appeal is moot based on the October 2006 order, we need not address this second asserted basis for finding the underlying appeal to be moot. (See In re Dani R., supra, 89 Cal.App.4th at p. 406.)

III. Disposition

As the juvenile courts October 2006 order returning Amanda and Aaron to Maries custody renders this appeal moot, the appeal is dismissed.

_________________________

Reardon, J.

We concur:

_________________________

Ruvolo, P. J.

_________________________

Sepulveda, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

^[1] The father is not a party to this appeal. We are familiar with the issues facing this family, which have been before us in the past. (In re Kimberly D. (Dec. 15, 2005, A110528) [nonpub. opn.].)

^[2] We take judicial notice of the juvenile courts orders in this matter after August 2006. (See Evid. Code, 452, subd. (d), 459, subd. (a); In re Salvador M. (2005) 133 Cal.App.4th 1415, 1422; Long v. Hultberg (1972) 27 Cal.App.3d 606, 608.)