Filed 12/11/17 In re N.W. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 N.W. et al., Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMLY SERVICES,

Plaintiff and Respondent,

v.

C.S. et al.,

Defendants and Respondents;

L.C.,

Petitioner and Respondent;

N.W. et al.,

Appellants.


E067836

(Super.Ct.Nos. J260727, J264369)

O P I N I O N


APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Dismissed.
Joanne D. Willis Newton, under appointment by the Court of Appeal, for Appellants.
Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Defendants and Respondents.
No appearance for Petitioner and Respondent.
I. INTRODUCTION
Appellants are the dependent children in this case, half siblings E.S. and N.W., who were living in a foster home with L.C. (foster mother). Foster mother applied for de facto parent status but did not serve her papers on any parties in the action. The court granted her application for de facto parent status without notice to the other parties or a hearing. Afterward, the children moved to vacate the court’s order on the ground that the court had violated their due process rights by granting de facto parent status without notice and a hearing. At the hearing on the motion to vacate, foster mother voluntarily relinquished her de facto parent status. The court nevertheless ruled that its de facto parent order was valid when granted.
On appeal, the children renew the argument that the court violated their due process rights when it designated foster mother a de facto parent. Plaintiff and respondent, San Bernardino County Children and Family Services (CFS), agrees with the children. Foster mother has not filed a brief on appeal. The children and CFS acknowledge the issue is moot because foster mother relinquished her de facto parent status, but they still urge us to decide the issue, arguing it is a matter of public importance that is capable of repetition, yet evades review. We decline and dismiss the appeal as moot.
II. FACTS AND PROCEDURE
In July 2015, the juvenile court declared one-year-old E.S. a dependent child and removed him from the physical custody of C.S. (mother) based on her substance abuse. The whereabouts of E.S.’s alleged father were unknown. The court ordered reunification services for mother. E.S. was not in foster mother’s home at this time but was with another caregiver.
In March 2016, the court declared newborn N.W. a dependent child and removed her from her parents’ physical custody based on their substance abuse. (N.W. and E.S. share the same mother.) The court ordered reunification services for mother and N.W.’s father. CFS placed N.W. with the same caregiver as E.S.
In June 2016, CFS placed E.S. and N.W. with foster mother. The court terminated mother’s reunification services with E.S. in January 2017 and set the matter for a selection and implementation hearing. (Welf. & Inst. Code, § 366.26.) Foster mother was willing to adopt E.S. and N.W., and the court ordered CFS to assess her for permanent placement.
Four days later, on January 13, 2017, foster mother filed an application for de facto parent status with respect to each child (Judicial Council forms JV-295, JV-296). Foster mother did not file a proof of service with the applications, and as the court later learned, she did not serve any of the parties with her applications and supporting papers. The court granted her applications for de facto parent status on January 17, 2017, with no hearing. Several days later, the court clerk served foster mother’s applications and the court’s order on the children’s counsel, CFS, and the parents.
Almost immediately, the children’s counsel filed a motion to vacate the order granting de facto parent status. According to counsel’s declaration, she was unaware of foster mother’s application until the court clerk had served the papers. In the meantime, CFS had removed E.S. and N.W. from foster mother’s home on January 19, 2017, based on the conditions of foster mother’s home, problematic statements she had made to a counselor who was assessing E.S., and the counselor’s observations of foster mother’s behavior during a home visit.
The children’s counsel asked the court to vacate its order because the children had neither notice of foster mother’s applications nor an opportunity to be heard on the matter. At an initial hearing on the issue, the court noted that it had assumed the parties had notice of foster mother’s application when it granted de facto status. It asked the parties to further brief the issue and continued the matter.
At the continued hearing, the court seemed to think the children had a due process right to notice of a de facto parent application, but it believed there was no guidance on the issue: “I think there should be a due process right, constitutional; even though it is not codified, that doesn’t—just because it’s not codified doesn’t mean it is not a constitutional due process right, so I agree with your analysis. [¶] I am a little hesitant to follow it because I don’t really have guidance from any case law, and I don’t have guidance from a statute . . . . [¶] . . . [¶] I just feel like I don’t have the guidance to make that call based on the state of the law, but I agree with the idea that, you know, before I do change—really, somebody’s rights in a case, that I should give notice—people should get notice of that, and that is due process. So I definitely agree with that idea, I just don’t know that I have that specific guidance to be able to follow through with that idea.” Still, the court observed: “And I have learned in practice is not [sic] to grant these anymore, even though I can, without a hearing, so, for me, lesson learned.”
After these comments, the foster mother voluntarily relinquished her de facto parent status and argued the motion to vacate was therefore moot. The children’s counsel requested that the court nevertheless rule on whether the de facto parent order was valid when granted. The court did so, stating: “I think technically speaking it was valid. I granted it under the law. It was correct in doing that, and even though I have misgivings about not being required to have notice, I don’t think it’s mandated or specifically so. I’d say the de facto at the time I granted it was valid, and so inasmuch as you’re saying it should be invalidated because of lack of notice, while I may agree with the idea of that, I’m not going to rule that way. I’m ruling that it was valid, and that under the law as I have read it, notice is not required for all the reasons that I’ve stated.” But the court accepted foster mother’s relinquishment of her de facto parent status as of that date, making clear the relinquishment was not retroactive or, as the court put it, “nunc pro tunc.”
III. DISCUSSION
“‘“[T]he duty of this court . . . 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, or to declare principles or rules of law which cannot affect the matter in issue in the case before [us].”’” (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.) When we cannot grant any effective relief, even if we were to decide the case in favor of the appellant, the appeal is moot and we should dismiss it. (Ibid.; In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315.) We may exercise our discretion to consider a technically moot issue when the question is of broad public interest and is likely to recur, yet it evades review. (Gordon v. Justice Court (1974) 12 Cal.3d 323, 326, fn. 1; In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404.)
Here, foster mother’s relinquishment of her de facto parent status renders this appeal moot. We cannot grant the children any effective relief, even if we determined they were entitled to notice of foster mother’s application and an opportunity to be heard. Our remedy, assuming we also found prejudice, would be to reverse the court’s order granting de facto parent status, which has already occurred in effect.
The children argue we should address the merits of the appeal because the issue is of continuing public importance and yet evades review. In their brief, they contend their “trial counsel represent[ed] to [their] appellate counsel that the juvenile court routinely grants de facto parent requests by ex parte orders.” Assuming for the sake of argument that the issue is of broad public interest or importance, counsel’s bare representation does not convince us the issue is likely to recur and continually evade review. The juvenile court’s statement that it had “learned” its “lesson” and would no longer grant de facto parent applications without a hearing suggests otherwise. The court also indicated that it had presumed the parties had notice of foster mother’s applications when it granted them, suggesting the court would not have granted them had it known about the lack of notice. Moreover, the issue became moot in this case because foster mother chose not to fight the parties’ objections to her de facto parent status. But we have no reason to believe de facto parents will give up the fight when, and if, this issue arises in the future. For all these reasons, we decline to consider the merits of this moot appeal and shall dismiss it.
IV. DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.


We concur:

RAMIREZ
P. J.

SLOUGH
J.