Filed 8/24/18 In re J.M. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In case No. A151881, K.E. (Mother), mother of five-year-old J.M., appeals from the juvenile court’s jurisdictional and dispositional orders removing J.M. from her care and placing him in foster care. She contends the court: (1) failed to follow proper procedures relating to relative placement in declining to place J.M. with his maternal grandparents; (2) erred in placing J.M. in an out-of-county foster home; and (3) failed to specify the frequency and duration of her visits with J.M.

Alameda County Social Services Agency (the Agency) opposes Mother’s contentions on the merits and also moves to dismiss the appeal on the ground that it has been rendered moot by a later order of December 19, 2017, in which J.M. was returned to Mother’s home with family maintenance services. In support of its motion to dismiss, the Agency asks us to take judicial notice of the December 19, 2017 order.

In case No. A153372—a related case that we hereby consolidate with case No. A151881—Mother appeals from the December 19, 2017 order. Her sole contention in this appeal is that two sections of the minute order must be corrected to accurately reflect what the juvenile court stated on the record.

For the reasons set forth below, we grant the Agency’s motion to dismiss the appeal in case No. A151881 as moot, and we deny its request for judicial notice as moot. In case No. A153372, we conclude the minute order shall be modified as set forth in this opinion. We affirm the December 19, 2017 order in all other respects.

Factual and Procedural Background

Case No. A151881

J.M. came to the attention of the Agency on December 4, 2016, when Mother took him to the hospital because he was having difficulty walking. A skeletal survey showed he had multiple fractures in different stages of healing; he also had injuries on his face, eyes, and neck. Mother gave many explanations for the fractures, e.g., that J.M. fell while taking a bath, or that he fell from the bed or was pushed by the family dog. She said his facial injuries could have been sustained when her boyfriend, D.G., accidentally hit J.M. while opening a car door. Medical personnel reported there was “[n]o chance these fractures were caused by falling,” and a doctor opined the injuries were likely the result of “substantial trauma.”

Mother lived in a home with her sister and an adult roommate; D.G. also occasionally lived in the home. Mother was J.M.’s primary caretaker, and Mother’s parents (the maternal grandparents) took care of J.M. while Mother worked. D.G. and D.G.’s mother had also cared for J.M. Mother had a temporary restraining order against J.M.’s alleged father, D. M.-G. (Father).[1]

On December 6, 2016, the maternal grandparents expressed an interest in caring for J.M. The Agency reported it would investigate the maternal grandparents as a possible placement, but was concerned that J.M. had been in their care during the period when he sustained injuries. The Agency was also concerned that the family had a history with child protective services when Mother was a minor. At a detention hearing, the juvenile court detained J.M. and elevated Father to presumed father status, but denied his request to have J.M. placed with him.

According to a jurisdictional and dispositional report, J.M. was doing well in his foster home. The Agency had submitted relative assessment requests for both the maternal grandparents and the paternal grandparents, and the requests were pending. Mother rescinded her request for a restraining order against Father, and both Mother and Father were visiting J.M. At a jurisdictional hearing, the juvenile court took jurisdiction over J.M. after finding he was at substantial risk of harm due to Mother’s failure to adequately supervise or protect him. At disposition, the court placed J.M. in foster care and ordered reunification services to the parents. On July 13, 2017, Mother timely appealed from the jurisdictional and dispositional orders.

Case No. A153372

Thereafter, on November 15, 2017, the Agency filed a status review report recommending a two-week trial visit for J.M. in Mother’s home. Mother was “fully and proactively engaged in her case plan” and had clearly identified D.G. as the perpetrator of J.M.’s injuries. Mother admitted she had often been under the influence of alcohol and was physically and emotionally abused and controlled by D.G. She was no longer with D.G. and expressed remorse for having been involved with him, for leaving J.M. in his care, and for allowing her alcohol use to contribute to her poor judgment.

As of the time of the report, Mother was participating in individual and child–parent psychotherapy and had developed insight into how her behavior had affected J.M.’s safety and well-being. She had participated in frequent drug and alcohol testing, and only one test had been positive, for alcohol. J.M. showed symptoms of anxiety, distress, and trauma, and was having difficulty adjusting to out-of-home placement. The foster parents reported they would not be able to provide a permanent home for J.M., as they were in the process of adopting another child. J.M. was benefiting from frequent and consistent visits with Mother, with whom he had a “strong primary attachment.” The Agency recommended that Mother continue to maintain her sobriety and participate in services, including individual and child–parent psychotherapy.

At the November 22, 2017 status review hearing, minor’s counsel requested that the juvenile court authorize unsupervised visitation so that there could be a period of unsupervised visitation before a two-week trial visit. The court granted the request. At the next hearing, on December 5, 2017, the court authorized a two-week trial visit in Mother’s home.

On December 19, 2017, a social worker reported that the transition of J.M. to Mother’s care had gone “extremely well.” J.M. was a “different child” in Mother’s home, as he was “happy,” “talkative,” and “engaging.” The home was “appropriate,” and Mother was “very focused” on J.M. and had scheduled a “very thoughtful daily routine” for him. She was working part-time and had J.M. in a nanny-share child care while she worked. The juvenile court returned J.M. to Mother’s home, with family maintenance services. Mother timely appealed from the December 19, 2017 order.

Discussion

Case No. A151881

Mother contends the juvenile court: (1) failed to follow proper procedures relating to relative placement in declining to place J.M. with his maternal grandparents; (2) erred in placing J.M. in an out-of-county foster home; and (3) failed to specify the frequency and duration of her visits with J.M. We conclude the appeal has been rendered moot by the court’s subsequent order returning J.M. to Mother’s home.

“As a general rule, it is a court’s duty 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 it.’ ” ’ ” (In re N.S. (2016) 245 Cal.App.4th 53, 58.) Thus, “ ‘[w]hen 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.) The critical factor in deciding whether an appeal is moot is whether the appellate court can grant effective relief if it finds reversible error. (In re N.S., supra, 245 Cal.App.4th at p. 60.)

Here, all of Mother’s contentions relate to controversies that no longer exist. Because J.M. has been returned to Mother’s care, and Mother is not requesting placement with the maternal grandparents, there is no effective relief we could give her in connection with the relative placement request. She complains that the placement of J.M. in an out-of-county foster home will affect “the frequency and length” of her visits with him, and her ability to reunify with him, but this is no longer an issue because J.M. is now living with her. Any objection to the court’s order relating to her visitation rights is similarly moot.

Mother urges this court to address her contentions “because the issues raised in [her] appeal may very well arise again . . . .” She points out that the juvenile court has not terminated jurisdiction, and asserts it is possible that J.M. will be removed from her home again, if she fails to maintain sobriety or participate in services. She also argues this court should address the issues she raises because they “are of broad public interest [and] are likely to recur in other cases . . . .”

An appellate court has inherent discretion to resolve an issue of broad public interest that is likely to recur, or a controversy that is likely to recur between the same parties. (In re N.S., supra, 245 Cal.App.4th at p. 59.) Further, an appeal will not be dismissed as moot if the purported error is of such magnitude as to infect the outcome of subsequent proceedings. (See In re Joshua C. (1994) 24 Cal.App.4th 1544, 1548; see also In re Daisy H. (2011) 192 Cal.App.4th 713, 715–716 [appellate court did not dismiss as moot the father’s appeal challenging findings of domestic violence made against him even after termination of dependency jurisdiction because the findings would continue to adversely affect him in future custody proceedings].) Nevertheless, we see no strong reason to depart from the policy of declining to address moot issues.

This case does not involve a factual scenario that is likely to recur or a question of statutory interpretation necessary to decide in the public interest. Moreover, none of the issues Mother raises in her appeal—relative placement, out-of-county placement, and visitation—are likely to have a continuing adverse impact on her in subsequent proceedings. Even if J.M. is removed from Mother’s home at some point in the future, it is speculative whether the maternal grandparents will request relative placement again, or whether the juvenile court will place J.M. in another out-of-county home, or whether it will issue an identical visitation order. We decline to exercise our discretion to issue an advisory opinion regarding issues that may never again arise. (In re I.A. (2011) 201 Cal.App.4th 1484, 1490 [it is generally not within the function of the court to give an advisory opinion on a moot, speculative, theoretical, or abstract question].)

Accordingly, we grant the Agency’s motion to dismiss the appeal in case No. A151881 as moot. In support of its motion to dismiss, the Agency has requested that we take judicial notice of the December 19, 2017 order. We deny the request as moot because that order is under review in case No. A153372.

Case No. A153372

In this appeal, Mother challenges two sections of the December 19, 2017 minute order. We conclude the minute order shall be modified as set forth below.

In returning J.M. to Mother’s care on December 19, 2017, the juvenile court stated: “The appropriate permanent plan is reunification of [J.M.] and placement in the home of his mother. The order placing [J.M.] in out-of-home care is set aside. [J.M.] is placed effective immediately with the care, custody and control returned to his mom. [¶] The Agency is ordered to provide family maintenance to [J.M.] and his mom and the family will participate in the services as stated in the family’s case plan. [¶] At the next dependency status review hearing the Court will determine the extent of compliance with the case plan as an important factor in deciding whether it would be detrimental to dismiss Juvenile Court jurisdiction.” (Italics added.)

The juvenile court terminated reunification services to both parents and ordered as to Father: “Visitation between [J.M.] and his father is ordered as frequently as possible consistent with his well-being.” (Italics added.) The court continued the matter for six months for a “dependency status review in the family maintenance program.”

The minute order from the December 19, 2017 hearing states: “Care, Custody, Control and Conduct of said dependent child; shall be under the supervision of the Social Services Agency to reside in the home of mother, [K.E.].” (Italics added.) “Agency is ordered to provide FM [family maintenance] services to the mother.” “Visitation between the child & mother as frequently as possible consistent w/child’s well-being.” (Italics added.)

First, Mother contends the minute order erroneously states that “mother”—instead of “father”—shall have frequent visits with J.M. We agree—and the Agency concedes—that the minute order contains a typographical error. As noted, the juvenile court placed J.M. in Mother’s home and granted frequent visitation rights to Father. The minute order, however, states that Mother shall have frequent visits with J.M. Accordingly, the word “mother” shall be replaced with the word “father” so that the section of the minute order relating to visitation states: “Visitation between the child & father as frequently as possible consistent w/ child’s well-being.”

Second, Mother contends the minute order erroneously states that the “Care, Custody, Control and Conduct” of J.M. “shall be under the supervision of the Social Services Agency” because the juvenile court stated on the record that the “care, custody, and control” of J.M. was to be “returned to his mom.” She asserts these two statements conflict because the court’s oral pronouncement places custody of J.M. with Mother, while its minute order places custody of J.M. with the Agency.

We disagree that the statements conflict. The juvenile court stated on the record that J.M.’s custody was to be returned to Mother. In the minute order, the court did not maintain custody of J.M. with the Agency; rather, it simply ordered the Agency to continue supervising the case.

When a dependent child is returned to a parent’s home, the juvenile court has the option of terminating dependency jurisdiction or continuing the dependency and setting a review hearing within the next six months. (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 307.) If the court decides to continue the dependency, it can order the parent to “retain custody of the minor subject to the supervision of the social worker.” (Welf. & Inst. Code, § 362, subd. (c), italics added.) In such a case, the parent must participate in “family maintenance services,” which are “activities designed to provide in-home protective services to prevent or remedy neglect, abuse, or exploitation . . . .” (Ibid.; Welf. & Inst. Code, § 16501, subd. (g).)

Here, it is undisputed that the juvenile court did not terminate jurisdiction when it returned J.M. to Mother’s home. Instead, it continued dependency jurisdiction, ordered Mother to participate in family maintenance services, and scheduled a review hearing. As the minute order reflects, the court also ordered the Agency to continue supervising the case. Thus, the court’s oral pronouncement does not conflict with what is set forth in the minute order.

Nevertheless, we agree with Mother that the minute order may be modified to clarify the status of J.M.’s custody. We therefore order that the section of the minute order that currently states, “Care, Custody, Control and Conduct of said dependent child; shall be under the supervision of the Social Services Agency to reside in the home of mother, [K.E.],” shall be modified to state: “Care, Custody, Control and Conduct of said dependent child shall be returned to mother, K.E., under the supervision of the Social Services Agency, to reside in the home of mother.”

Disposition

In case No. A151881, the Agency’s motion to dismiss the appeal is granted and the appeal is dismissed as moot. The Agency’s request for judicial notice connected to the motion to dismiss is denied as moot.

In case No. A153372, the two sections of the December 19, 2017 minute order relating to visitation and custody shall be modified as set forth in this opinion. In all other respects, the order is affirmed.

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Jenkins, J.

We concur:

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Pollak, Acting P. J.

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Ross, J.*