Filed 9/17/18 In re Daniel M. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Appellant Santa Clara County Department of Family and Children’s Services (the Department) appeals from the juvenile court’s order granting a Welfare and Institutions Code section 388[1] petition and terminating a legal guardianship over respondent Daniel M. shortly before Daniel’s 18th birthday. Since Daniel is now an adult, the Department’s challenge to the juvenile court’s order is moot. We dismiss the appeal.

I. Background

Daniel’s older brother Anthony and Anthony’s (now former) girlfriend Gabriela became Daniel’s legal guardians in November 2012. Anthony and Gabriela also became the legal guardians of Daniel’s younger sisters. Anthony and Gabriela could not adopt Daniel because Daniel objected to termination of his mother’s parental rights. The guardianship was indisputably successful. The juvenile court retained jurisdiction over the children because Anthony and Gabriela objected to dismissal of the dependency case. Anthony felt that he needed the Department’s support to care for the children.

As Daniel approached his November 2017 18th birthday, there were concerns that he had not yet developed sufficient independent living skills. He was set to graduate from high school in June 2017 and intended to attend college and work. The Department was exploring options for helping Daniel develop independent living skills, but it had not yet provided any such services as of May 2017.

In late September 2017, Daniel’s appointed trial counsel filed a section 388 petition seeking termination of the legal guardianship and establishment of a permanent plan of “another planned permanent living arrangement.” Her petition explained that circumstances had changed since the establishment of the guardianship because Daniel was approaching his 18th birthday. Daniel was attending a community college and working part-time at the YMCA. He did not feel prepared to give up “ongoing support” from the Department, and he wanted to make sure he was “eligible for extended foster care” after he reached adulthood. Daniel’s court appointed special advocate (CASA) strongly supported the petition because he believed that termination of the guardianship would ensure that Daniel was able “to receive services,” which would be in Daniel’s best interests. Daniel did not intend to leave Anthony’s home. He simply wanted to ensure that he would be able to receive services after he became an adult.

In early October 2017, prior to the hearing on the petition, the Department recommended that the court dismiss Daniel’s dependency case. The Department also filed opposition to the petition. The Department represented that the guardianship was necessary to Daniel’s “stability.” The Department asserted: “It is not appropriate to terminate a permanent plan for the sole purpose of rendering a non-minor eligible for the Non Minor Dependent program.”

At the October 2017 hearing on the petition, the court expressed the opinion that “we want to be sure that he’s got the maximum amount of services.” It continued the hearing for a day “for everybody to take a second look here” because “we all aren’t quite sure which direction this should go.”

At the continued hearing, Daniel’s trial counsel explained that the guardian would not receive “Kin-GAP payments” if the guardianship was terminated, but Daniel would receive “the SILP stipend,” which he could have paid to Anthony if he wished. If the guardianship was not terminated, the guardian would receive “Kin-GAP payments” until Daniel reached the age of 21. She seemed to argue that the two payments were equivalent.

Daniel’s trial counsel argued that termination of the guardianship would be in Daniel’s best interest. In her view, the guardianship had not created true permanency because the family had always required services from the Department. And she pointed out that the guardianship would necessarily terminate when Daniel reached age 18. Daniel’s position was that he still needed services from the Department, which would not be available after he became an adult unless he could become a nonminor dependent. “As a Non-minor Dependent he would be eligible for a variety of housing assistance which he would not be eligible for under Kin-GAP. . . . He also would not be eligible for a Chafee Grant . . . .”

The Department argued that termination of the guardianship would not change the Department’s involvement with Daniel because there would still be “a social worker assigned and available to the family” and “a home visit every six months” (rather than every month) as part of the supervision of the “Kin-GAP case.” The Department represented that “[i]f the guardian were to stop supporting Daniel between 18 and 21, he would be eligible to reenter extended foster care under the law.” Anthony wanted the guardianship to “stay in place” due to his “concerns about whether Daniel would be able to meet the criteria of extended foster care.”

The court noted that this was “a hard one,” but it decided to grant the petition. “I’m persuaded largely by the fact of the strong advocacy, both by the child advocate [(the CASA)] and by [Daniel’s trial counsel], who I think knows her client pretty well, and it sounds to me like he’s really thought through, and they’ve all thought through the pluses and minuses of continuing the legal guardianship.”

The court terminated the legal guardianship on October 17, 2017. Daniel turned 18 two weeks later. On December 12, the Department timely filed a notice of appeal from the court’s order granting the petition and terminating the guardianship.

II. Analysis

The Department contends that the juvenile court erred in granting the petition and terminating the guardianship because legal guardianship is a preferred placement and the petition was not supported by evidence of a change of circumstance or evidence that termination of the guardianship would be in Daniel’s best interest. The Department concedes that we cannot afford it any relief even if we credit its contentions because the guardianship cannot be reinstated due to the fact that Daniel is now an adult.

“When no effective relief can be granted, an appeal is moot and will be dismissed.” (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315.) “An appellate court will not review questions which are moot and only of academic importance, nor will it determine abstract questions of law at the request of a party who shows no substantial rights can be affected by the decision either way.” (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1054-1055.) “However, a reviewing court may exercise its inherent discretion to resolve an issue rendered moot by subsequent events if the question to be decided is of continuing public importance and is a question capable of repetition, yet evading review.” (In re Yvonne W. (2008) 165 Cal.App.4th 1394, 1404; see also In re William M. (1970) 3 Cal.3d 16, 23.)

The Department insists that we should address the merits of this moot appeal because “the issue presented here is capable of repetition and is a matter of public interest.” It asserts: “Minor’s counsel can and does repeatedly bring petitions in the juvenile court to terminate guardianships where the guardian is entirely appropriate, purely for the purpose of rendering the youth eligible for Extended Foster Care benefits. Consequently, many stable permanent plans are destroyed unnecessarily. Because these petitions are invariably brought just before the child’s 18th birthday, they are patently likely to evade review.”

We decline the Department’s invitation to exercise our inherent discretion to address the contentions that it makes in this moot appeal. First, the Department provides no support for its claim that Daniel’s trial counsel “repeatedly” files section 388 petitions seeking to terminate guardianships for allegedly improper reasons. Second, the issues that the Department raises in this appeal are largely case-specific: whether the petition was supported by sufficient evidence. A decision on these issues in a moot appeal would serve no purpose. We will not waste valuable judicial resources on this moot appeal.

III. Disposition

The appeal is dismissed.

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Mihara, J.

WE CONCUR:

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Elia, Acting P. J.

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Bamattre-Manoukian, J.