Filed 2/8/22 In re S.R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Dismissed.

Monica Vogelmann, under appointment by the Court of Appeal, for Defendants and Appellants.

Michelle D. Blakemore, County Counsel, and Kaleigh Ragon, Deputy County Counsel, for Plaintiff and Respondent.

I. INTRODUCTION

S.R. was removed from her biological parents shortly after birth in 2020. She was eventually placed with a family who had previously adopted one of her biological siblings. Two days before a scheduled permanency planning hearing pursuant to Welfare and Institutions Code[1] section 366.26, S.R.’s paternal aunt and uncle, defendants and appellants B.G. and S.G., filed a petition pursuant to section 388 seeking placement of S.R. in their home. The juvenile court denied the request, and appellants appeal from this order, requesting that we reverse and remand for an evidentiary hearing on the relative placement preference set forth in section 361.3.

While this appeal was pending, the juvenile court held a continued permanency planning hearing pursuant to section 366.26, terminated the parental rights of S.R.’s biological parents, and selected a permanent plan of adoption for S.R. In light of these subsequent events, we conclude this court cannot grant appellants any effective relief by way of this appeal. Accordingly, the appeal is moot, and we order the appeal dismissed.

II. FACTS AND PROCEDURAL HISTORY

S.R. was born in 2020 and removed from her parents shortly after birth. On August 11, 2020,[2] she was placed with the adoptive parents of her half brother.

On November 17, 2020, San Bernardino County Children and Family Services (CFS) filed a report pursuant to section 366.26 in advance of a scheduled permanency planning hearing set for December 3. In its report, CFS requested that the hearing be continued for 90 days to provide more time to complete an adoption assessment.

On February 24, 2021, CFS filed an addendum report in advance of the continued permanency planning hearing set for March 3.[3] The addendum report included assessments of appellants’ home and the home of S.R.’s care providers at the time, as well as a recommendation that S.R.’s current placement was appropriate.

On March 1, 2021, appellants filed a petition pursuant to section 388. Appellants argued that they had been in contact with CFS since shortly after S.R.’s birth; CFS had given them inaccurate, incomplete, or otherwise false information regarding the process for seeking placement of S.R.; and they had recently obtained RFA approval for their home. Appellants requested that the juvenile court issue an order placing S.R. in their home or, alternatively, setting an evidentiary hearing pursuant to section 361.3 to consider their request for placement.

On March 3, 2021, the juvenile court called the matter for a permanency planning hearing, as well as a hearing on appellants’ petition. With respect to the selection and implementation of a permanent plan, CFS requested, and the juvenile court granted, a one-month continuance to permit CFS additional time to complete its adoption assessment. The trial court then heard argument from counsel regarding appellants’ request for placement. At the conclusion of the hearing, the juvenile court denied appellants’ request for a full evidentiary hearing on the matter and denied their request for placement.[4] In doing so, the juvenile court explicitly stated it was considering “all the factors under 361.3,” but it concluded that ordering a new placement was not in S.R.’s best interest. On March 22, Appellants appealed from the order denying their section 388 petition.

On April 8, 2021, the juvenile court held the continued permanency planning hearing pursuant to section 366.26, terminated appellants’ parental rights, and selected a permanent plan of adoption for S.R.

III. DISCUSSION

“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.’ ” ’ [Citation.] An appellate court will dismiss an appeal when an event occurs that renders it impossible for the court to grant effective relief.” (In re N.S. (2016) 245 Cal.App.4th 53, 58-59.)

“Juvenile dependency appeals raise unique mootness concerns because the parties have multiple opportunities to appeal orders even as the proceedings in the juvenile court proceed.” (In re N.S., supra, 245 Cal.App.4th at p. 59.) “[T]he critical factor in considering whether a dependency appeal is moot is whether the appellate court can provide any effective relief if it finds reversible error.” (Id. at p. 60.)

In this appeal, appellants seek reversal of the juvenile court’s order denying their request for placement so that they can be given a “fair opportunity to present evidence as to the relative placement preference.” However, as we explain, even if we were to conclude the juvenile court erred in denying appellants’ section 388 petition, reversal of the juvenile court’s order at this point in the proceedings would not permit appellants to relitigate the issue of placement under the relative placement preference.

“The relative placement preference is set out in section 361.3. It gives ‘preferential consideration’ to a request by a relative of a child who has been removed from parental custody for placement of that child.” (In re Lauren R. (2007) 148 Cal.App.4th 841, 854.) The statute requires the juvenile court to consider the placement of a dependent child with relatives at the dispositional stage and whenever a new placement is required. (§ 361.3, subd. (d).) A relative is also permitted to request a change of placement by filing a petition pursuant to section 388. (In re Isabella G. (2016) 246 Cal.App.4th 708, 722, fn. 11.) Normally, the juvenile court’s denial of a relative placement request made pursuant to section 388 is reviewed for abuse of discretion. (See In re R.T. (2015) 232 Cal.App.4th 1284, 1300-1301.)

However, once the juvenile court approves a permanent plan of adoption pursuant to section 366.26, the relative placement preference no longer applies. (In re Lauren R., supra, 148 Cal.App.4th at pp. 856-857; In re K.L. (2016) 248 Cal.App.4th 52, 66 [“The section 361.3 relative placement preference does not apply where . . . the social services agency is seeking an adoptive placement for a dependent child for whom the court has selected adoption as the permanent placement goal.”]; In re A.K. (2017) 12 Cal.App.5th 492, 498 [“[T]he relative placement preference does not apply to an adoptive placement; there is no relative placement preference for adoption.”].) Instead, once a permanent plan of adoption has been selected, the child’s placement is governed by section 366.26 and the relevant provisions of the Family Code governing adoption. (In re A.K., at p. 498; In re David H. (1995) 33 Cal.App.4th 368, 379-380.)

Here, one month after the juvenile court denied appellants’ section 388 petition, the juvenile court conducted a contested permanency planning hearing pursuant to section 366.26, terminated parental rights, and selected a permanent plan of adoption for S.R. Once the juvenile court terminated S.R.’s parents’ parental rights, it was required to transfer the “custody and supervision” and “the exclusive care and control” of S.R. to the “State Department of Social Services, county adoption agency, or licensed adoption agency” until a petition for adoption is granted. (§ 366.26, subd. (j).) “Courts interpreting the . . . language of section 366.26, subdivision (j) have declared these words ‘clear.’ [Citations.] The Legislature has granted to the appropriate department or agency the exclusive, meaning sole, custody, control and supervision of a child referred for adoptive placement.” (Fresno County Dept. of Children & Family Services v. Superior Court (2004) 122 Cal.App.4th 626, 649.) At this stage, the trial court has no discretion to independently select a placement for the child and can review the agency’s decision only for an abuse of discretion. (Id. at p. 650; In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1058 [“After parental rights have been terminated, the court may review the agency’s prospective adoptive placement for abuse of discretion”].)

Reversal of the juvenile court’s order denying appellants’ section 388 petition would not reverse these subsequent orders.[5] As a result, even if we were to conclude that the juvenile court abused its discretion in denying appellants’ section 388 petition, we could not grant them any effective relief by way of this appeal.[6] Absent reversal of the subsequent order selecting a permanent plan of adoption, appellants would not be entitled to a new hearing to relitigate the application of the relative placement preference, since the statute no longer applies at this stage of the proceedings. Even if the matter were remanded to the juvenile court, it no longer has discretion to order a change of placement based upon its independent evaluation of the evidence or the facts, and it is limited to evaluating whether the agency’s posttermination placement was an abuse of discretion. Thus, the appeal is moot. (See In re Rashad D. (2021) 63 Cal.App.5th 156, 163-164 [Appeal is moot where appeals from subsequent orders are necessary to provide effective relief.].)

In their reply brief, appellants contend that the question of mootness must be decided on a “case-by-case basis.” However, appellants have not suggested how the reversal of the order challenged in this appeal could provide them any effective relief on the facts of this case. Because we conclude that we cannot grant appellants any effective relief in this appeal, we dismiss the appeal as moot, and we need not address the remaining arguments raised by the parties.

IV. DISPOSITION

We order the appeal dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

RAMIREZ

P. J.

MENETREZ

J.

[1] Undesignated statutory references are to the Welfare and Institutions Code.

[2] S.R. remained in the neonatal intensive care unit of the hospital from the time of her birth in June 2020, until she was released from the hospital in August 2020.

[3] Appellants’ characterization of the addendum report as “submitted solely as a response to the relatives’ request for placement” is not supported by the record. While the report bears a March 3, 2021 date, reflecting the date set for the permanency planning hearing, the addendum was actually filed in advance of the hearing on February 24. Thus, the addendum could not have been filed as a “response” to appellants’ petition, which was not filed until March 1.

[4] The record suggests the juvenile court summarily denied the petition in a written order dated and filed March 2, 2021. However, the record of oral proceedings also indicates the juvenile court subsequently permitted counsel for all parties, including appellants’ counsel, to present oral argument on the petition at the time of the March 3 hearing; orally stated its ruling on the petition at the time of hearing; and issued a subsequent minute order again denying the petition on March 3.

[5] Appellants did not and could not have appealed from these separate orders. (See In re Harmony B. (2005) 125 Cal.App.4th 831, 838 [While relatives have standing to appeal from placement decisions under section 361.3, they do not have standing to appeal from an order terminating parental rights.].)

[6] This conclusion does not entirely foreclose appellants’ ability to continue to pursue custody of S.R. While S.R.’s caretakers are afforded statutory preference for adoptive placement (§ 366.26, subd. (k)), if the initial adoptive placement proves unsuccessful, the designated department or agency must make reasonable efforts to find a new adoptive placement (§ 366.3, subd. (g)). Further, to the extent circumstances change, the statute permits appellants to seek the selection of a new permanent plan and postpermanency placement. (§§ 366.26, 366.3.)