Filed 4/29/22 In re A.M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Christopher B. Marshall, Judge. Dismissed.

Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant.

Tom Bunton, County Counsel, Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION

Appellant L.M. (mother) appeals from the juvenile court’s summary denial of her Welfare and Institutions Code[1] section 388 petition regarding her daughter, A.M. (the child). We dismiss the appeal as moot.

FACTUAL AND PROCEDURAL BACKGROUND

On September 5, 2017, the San Bernardino County Children and Family Services (CFS) filed a section 300 petition on behalf of the child, who was 11 years old at the time. The petition alleged that she came within the provisions of section 300, subdivisions (b) (failure to protect), (g) (no provision for support), and (j) (abuse of sibling). It specifically alleged that the child’s father, A.M. (father)[2] and mother (the parents) had substance abuse histories, that mother had been unable to sustain stable housing for the child and her siblings, D.M., I.G., and J.G.[3] (collectively, the children), and that father was currently incarcerated. The petition also alleged that mother had a prior dependency case from October 2, 2015, to January 31, 2017, where the children were removed “for similar issues.”

The social worker filed a detention report stating that CFS received a referral on August 24, 2017, alleging general neglect. Social workers interviewed the child and D.M. (the girls) at their school, and the girls reported that they had been staying with maternal grandmother (MGM) for over two weeks without mother. The child said her “dad is in jail.” One of the social workers subsequently met with the MGM, who stated that mother recently began behaviors such as being verbally aggressive with the children, not feeding them, and sleeping all day. The MGM stated that she kicked mother out of her home. Mother left the girls with the MGM and took I.G. and J.G. (the boys) and dropped them off at the home of their paternal grandmother. The MGM stated that she had the girls in her care for about a month and was afraid mother was going to pick them up, take them to live on the street with her, and expose them to drugs.

The social worker spoke with mother on the phone. Mother reported that the girls’ father was A.M, and the boys’ father was M.G. The social worker explained that a detention warrant had been obtained, and mother said she did not understand why the children were being removed. The social worker asked her to come to the CFS office to discuss the allegations. Mother made an appointment but failed to appear. On September 1, 2017, the social worker requested mother to randomly drug test, and mother tested positive for amphetamines.

The court held a detention hearing on September 6, 2017, and detained the child. It also ordered supervised visits once a week.

Jurisdiction/disposition

The social worker filed a jurisdiction/disposition report on October 5, 2017, recommending that the court sustain the petition and remove the child from mother’s custody. The social worker recommended that no reunification services be provided pursuant to section 361.5, subdivision (b)(13), and a section 366.26 hearing be set.

Regarding mother’s prior dependency, the social worker reported that on October 2, 2015, the court detained the child and her siblings, removed them from their parents’ custody, and placed them in out-of-home care with relatives. CFS filed a section 300 petition, which alleged that they came within the provisions of section 300, subdivision (b). It alleged mother had a substance abuse history and that she had been unable to sustain stable housing. The court sustained the petition and ordered mother to participate in reunification services. She received outpatient drug treatment and random drug testing and participated in a parenting program and individual therapy. On August 23, 2016, CFS recommended that the children be returned to mother’s care, under a plan of family maintenance. On November 14, 2016, the court dismissed the petition and terminated jurisdiction, as mother had completed reunification services and family maintenance services.

The social worker opined that mother had not benefited from her prior case plan services, as she continued to have a substance abuse problem that negatively impacted her ability to provide care, a residence, and supervision to the child. Mother and the children were living in the home of the MGM until on or about July 2017, when the MGM realized mother started using drugs again and would stay out all night with the children. The MGM reported that she asked mother to leave her home. She further reported that mother was homeless. The PGM believed mother was living on the streets and using drugs.

The court held a jurisdiction/disposition hearing on October 11, 2017, and mother set the matter contested. The court ordered mother to drug test that day.

The social worker filed additional information to the court on November 14, 2017, and reported that mother tested positive for marijuana on October 11, 2017. Mother completed an intake appointment at an outpatient substance abuse program, but a drug counselor reported that she had not attended treatment since the week of October 23, 2017.

The court held a contested jurisdiction hearing on November 15, 2017, and sustained the petition. At a contested disposition hearing on November 28, 2017, the court declared the child a dependent and removed her from the parents’ custody. It denied the parents reunification services pursuant to section 361.5, subdivision (b)(10), (b)(12), and (b)(13).· The court found that it was in the child’s best interests to consider termination of parental rights. It ordered supervised visitation between mother and the child once a week, pending the section 366.26 hearing.

Section 366.26

The social worker filed a section 366.26 report on March 14, 2018. She reported that the child and her sister, D.M., were placed together in the home of the MGM on August 31, 2017. They were previously placed with the MGM from September 29, 2015, to October 3, 2016, when they were initially removed from the parents’ care. The social worker reported that the MGM expressed a strong desire to provide a permanent and stable home for both of them through adoption, and that they had adjusted well to their prospective adoptive home. She submitted the required resource family approval (RFA) paperwork and just needed to have the home study completed.

Although the child informed the social worker that she was fine with being adopted by the MGM, the social worker believed the child felt torn between mother and the MGM. The MGM informed the social worker that mother and the child shared a special relationship and were close. The child was referred for therapeutic services to address any adoption issues she may be going through.

On May 18, 2018, the social worker filed additional information to the court and reported that the child informed her that she did not want to be adopted by the MGM, but now wanted to be adopted by her paternal grandparents because she felt more comfortable with them. Given the child’s change of heart, the social worker recommended that the child remain living with the MGM and the permanent plan be changed to a planned permanent living arrangement (PPLA), while her paternal grandparents were assessed for placement and adoption.

The court held a section 366.26 hearing on April 30, 2018, and the matter was set contested on behalf of the parents.

The social worker subsequently reported that the child’s paternal grandmother (the PGM) said she was willing to adopt the child. The child maintained that she wanted to be adopted by her paternal grandparents, and they were referred to the RFA unit.

On June 26, 2018, the court held a contested section 366.26 hearing. The court found that the previously recommended plan of adoption was no longer appropriate, a reason existed to not terminate parental rights, and a section 366.26 hearing was not in the child’s best interest.

On October 17, 2018, the social worker filed additional information to the court and reported that the child said she was under the impression that she and all three of her siblings would be placed with her paternal grandmother in Bakersfield. However, now that she was aware that she and her siblings would not be moved into the same home, she wanted to stay with the MGM, so she could remain near her siblings. The RFA assessment of the MGM was still in progress. The social worker requested a 60-day continuance for the RFA to be completed and that a section 366.26 hearing be set.

The social worker filed a status review report on December 18, 2018, recommending that the child remain in the MGM’s home and that services continue to be provided. The social worker stated that the permanent plan of a PPLA with the goal of adoption remained the most appropriate plan. The MGM’s RFA home study was approved for adoption. The RFA approval of the PGM was still in progress. The child was referred to individual counseling to address placement issues, as she was apparently having difficulty deciding which grandparent she wanted to adopt her. The social worker further reported that the child had not had visits with mother in several months since mother was incarcerated.[4] However, they remained in contact via telephone. The social worker noted that, during their phone conversations, mother had been asking the child for money and packages, which upset the child.

On December 21, 2018, the court adopted the social worker’s recommendations and ordered a plan of placement in foster care with a permanent plan of adoption.

In a status review report filed on June 12, 2019, the social worker continued to recommend that the child remain with the MGM but reported that the child was requesting to be placed with and adopted by her paternal grandparents. The RFA study on their home was still pending.

In a status review report filed on December 13, 2019, the social worker continued to recommend the permanent plan of placement in foster care with a permanent plan of adoption, and that a section 366.26 hearing be set. The social worker reported that the child’s paternal grandparents were RFA-approved on August 29, 2019, and the child was placed in their home on September 28, 2019. The child reported that she had a very close bond with the paternal grandparents and wanted them to adopt her, and they reported that they wanted to adopt her, as well.

The social worker further reported that she did not know mother’s current circumstances, since mother only contacted her four times during the month of September 2019. Mother only participated in two supervised visits during this reporting period. The child expressed her desire to not participate in visitation with mother and not maintain phone contact with her, due to mother “continuing to make poor life choices.”

The court held a hearing on December 12, 2019. It followed the social worker’s recommendation and set a section 366.26 hearing.

The social worker filed a section 366.26 report on June 20, 2020, recommending that mother’s parental rights be terminated, and adoption be implemented as the permanent plan. The social worker reported that the child had been in the paternal grandparents’ home for approximately seven months. The child viewed them as her parental figures, and there was a strong and healthy bond between them. The social worker reported that the child loved her grandparents and wanted to be adopted by them, and they were dedicated to her long-term care and were meeting all her needs. The social worker recommended parental rights be terminated so that the child could be adopted by the paternal grandparents. The social worker also stated that during this reporting period, the child maintained visitation with mother monthly, and the visits were appropriate.

On July 20, 2020, the social worker filed additional information to the court and reported that she spoke with the child on July 17, 2020, and the child said she did not want to see mother’s parental rights terminated since mother had recently made progress with her lifestyle by completing classes, getting a job, and having a car. The child stated that her goal was always to return to mother, but mother’s lifestyle was not stable enough. The social worker recommended a 60-day continuance, in order for legal guardianship to be explored with the paternal grandparents.

The court held a contested section 366.26 hearing on July 24, 2020, and continued the matter.

The social worker filed another section 366.26 report on September 17, 2020, and recommended that the permanent plan be legal guardianship. The child reported she was very happy living with the paternal grandparents, but she wanted mother to have the opportunity to work toward regaining custody of her in the future. The paternal grandparents were open to adopting the child but stated that they respected the child’s wishes; thus, they wanted to move forward with legal guardianship in order for them to still provide the child with permanency.

On September 22, 2020, the court held a further contested section 366.26 hearing, and mother withdrew her contest. The court continued the matter in order for the legal guardianship orders to be prepared.

On October 29, 2020, the court held a continued section 366.26 hearing and ordered legal guardianship as the permanent plan. The court appointed the paternal grandparents as the child’s legal guardians and ordered visitation between mother and the child to be twice a month, supervised by the legal guardians. The court then ordered the petition dismissed and terminated its jurisdiction.

Section 388 Petitions

On August 5, 2021, mother filed a section 388 petition, asking the court to revoke the legal guardianship, grant her reunification services, and increase visitation to include unsupervised visits and overnight and weekend visits. As to changed circumstances, mother alleged that she completed a drug program through drug court and completed additional services of parenting and anger management; she also continued to attend Alcoholics Anonymous (AA) /Narcotics Anonymous (NA) meetings and met with her sponsor regularly. Mother alleged that she had obtained stable employment, transportation, and housing and that she visited with the child regularly. As to best interests of the child, mother alleged that she had demonstrated her ability to maintain stability and sobriety for a significant period of time, had maintained regular contact with the child, and that the child would benefit from being raised by her biological mother, especially as mother had demonstrated long-term stability.

In support of her petition, mother attached a typewritten statement saying that she had not “done [her] drug of choice since October 2019,” she completed drug court in February 2021 and was no longer on probation, she had been employed for a cleaning service since November 2020, and she completed anger management and parenting classes in May 2021. Mother also attached other documents, including a criminal court minute order indicating she was terminated from drug court and her probation was terminated on February 19, 2021, a letter from her NA sponsor for the past two months, and a certificate of completion for an anger management and parenting program, dated May 10, 2021.

On August 9, 2021, the court summarily denied mother’s section 388 petition, noting that her request did not state new evidence or a change of circumstances and that the proposed changes were not in the child’s best interest.

Mother appealed the juvenile court’s order summarily denying her section 388 petition.

During the pendency of this appeal, mother filed another section 388 petition in juvenile court on December 17, 2021 (the second petition).[5] She essentially filed the same section 388 petition again, with added attachments. This time, the court held a hearing on the petition and granted the requests, “as modified.” The court granted mother services to include individual counseling, conjoint therapy, and random testing, and it ordered supervised visits once a week for two hours and gave CFS the authority to increase visits to unsupervised, overnight, and weekend visits. The court reinstated the dependency under juvenile court jurisdiction but maintained the child in the home of the legal guardians.

DISCUSSION

We Dismiss the Appeal as Moot

Mother argues the court abused its discretion in summarily denying her section 388 petition filed on August 5, 2021, and seeks reversal and remand to the juvenile court for a hearing. Mother’s argument that the court erred in summarily denying her petition has been rendered moot since the court held a hearing on the second petition and granted mother the relief she seeks in this appeal. Accordingly, we will dismiss the appeal.

A. Mother’s Appeal is Moot

“As a general rule, appellate courts decide only actual controversies. Thus, ‘it has been said that an action which originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised therein have become moot by subsequent acts or events.’ ” (In re Christina A. (2001) 91 Cal.App.4th 1153, 1158.) If a reversal would have no practical effect, the appeal should be dismissed. (In re Dani R. (2001) 89 Cal.App.4th 402, 404.) “The question of mootness in a dependency case should be decided on a case-by-case basis.” (Ibid.) “It is not uncommon for an appellate court to take judicial notice of subsequent proceedings in the juvenile court and find the appeal has been rendered moot.” (In re Karen G. (2004) 121 Cal.App.4th 1384, 1390.)

Mother’s claim that the court abused its discretion by summarily denying her section 388 petition is moot since she has now been afforded the hearing she sought. Mother filed the second petition after she filed this appeal, and the court subsequently held a full hearing on the petition. Furthermore, it granted her services and ordered supervised visits once a week for two hours and gave CFS the authority to increase visits to unsupervised, overnight, and weekend visits. “ ‘When 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.)

To the extent mother may argue that her appeal is not moot since the court did not grant her request in the section 388 petition to revoke the legal guardianship, we observe that the issue on appeal is whether the court erred in denying her petition summarily. Moreover, we observe that the court held a hearing on the second petition, and mother appeared in court, represented by counsel. Thus, she had the opportunity to be heard on her request, and the court decided to maintain the child in the home of the legal guardians.

DISPOSITION

The appeal is dismissed as moot.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

CODRINGTON

Acting P. J.

SLOUGH

J.

[1] All further statutory references will be to the Welfare and Institutions Code unless otherwise noted.

[2] Father is not a party to this appeal.

[3] D.M., I.G., and J.G. are not subjects of this appeal.

[4] The report does not mention any details of mother’s incarceration.

[5] Mother filed a Request for Judicial Notice on March 15, 2022, asking this court to take judicial notice of a copy of the section 388 petition filed on December 17, 2021 (Exh. 1), a copy of the court’s order dated February 23, 2022, granting her petition, with modifications (Exh. 2), and a copy of the minute order from the hearing held on February 23, 2022 (Exh. 3). In an order filed on March 17, 2022, we reserved ruling on mother’s request for consideration with the appeal. We now grant the Request for Judicial Notice (RJN). (Evid. Code, §§ 452, subd. (d), 459.)