Alameda Cnty. Soc. Servs. Agency v. A.A. (In re N.S.)

• Decision Date: 24 February 2016
• Docket Number: A145473
• Citation: 245 Cal.App.4th 53,199 Cal.Rptr.3d 431
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE N.S., a Person Coming Under the Juvenile Court Law. Alameda County Social Services Agency, Plaintiff and Respondent, v. A.A., Defendant and Appellant.

245 Cal.App.4th 53

199 Cal.Rptr.3d 431

IN RE N.S., a Person Coming Under the Juvenile Court Law.Alameda County Social Services Agency, Plaintiff and Respondent,

v.A.A., Defendant and Appellant.

A145473

Court of Appeal, First District, Division 1, California.

Filed February 24, 2016

Counsel for Objector and Appellant: Leslie A. Barry, By appointment of the Court of Appeal under the First District Appellate Project.

Counsel for Petitioner and Respondent: Office of the County Counsel, County of Alameda, Donna R. Ziegler, County Counsel, Nicole L. Roman, Deputy County Counsel.

Humes, P.J.N.S., the infant daughter of appellant A.A. (Mother), was taken from her parents after they were arrested on charges relating to a marijuana-grow house where they were reported to be living with the newborn. Mother took immediate steps to move out of the house, and by the time of the contested jurisdictional hearing it was empty and listed for sale. The juvenile court nonetheless took jurisdiction under Welfare and Institutions Code section 300, subdivisions (b) and (g).¹ While Mother's appeal challenging the jurisdictional findings was pending, the juvenile court awarded Mother custody of N.S. and dismissed the dependency proceedings. We agree with respondent Alameda County Social Services Agency (Agency) that dismissal of the appeal is proper under these circumstances.

I.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2014, when Mother was about one-month pregnant, she and N.S.'s father were arrested for illegally growing and possessing marijuana for sale in their Hayward home. Eight months later, about two weeks after N.S. was born, Mother and the baby's father were again arrested for possessing marijuana for sale in their home.

Shortly after the second arrest, the Agency filed a dependency petition alleging that N.S. faced a substantial risk of harm (§ 300, subd. (b) ) and had been left by her father without any provision for support (§ 300, subd. (g) ).² The petition alleged that the family was found "living in a marijuana grow house," where the infant was exposed to dangerous chemicals and a fire hazard from illegal wiring. N.S. was ordered detained and placed with a maternal relative who lived in the upper unit of a two-unit building in Union City.

Mother moved into the lower unit of the building to live with her father. Visits between Mother and N.S. went well, and Mother eventually was permitted to have unsupervised visits twice a day. Mother enrolled in and regularly attended a support group for new mothers, participated in individual therapy, repeatedly tested negative for drugs, had no contact with N.S.'s father, and completely moved out of the Hayward home and listed it for sale. N.S. had no medical issues and was not alleged to have suffered any physical harm while in her parents' care.

The Agency repeatedly praised Mother for her care of N.S. and the positive steps she had taken following the initiation of dependency proceedings, but it nonetheless recommended that the juvenile court take jurisdiction because Mother had been arrested twice for similar and serious charges. One reason the Agency made its recommendation was because it wanted to monitor Mother's possible involvement in further criminal activities.

After a contested jurisdiction/disposition hearing on June 12, 2015, the juvenile court sustained the dependency petition, which was amended slightly to conform to proof. The court concluded that there was a current risk of harm to N.S. based on Mother's past behavior. It adjudged N.S. as a dependent of the juvenile court, placed N.S. with Mother, and ordered the Agency to provide family-maintenance services.

Mother appealed. But while the appeal was pending, the juvenile court entered an order in November 2015 dismissing dependency jurisdiction, awarding custody of N.S. to Mother, and ordering supervised visits with N.S.'s father. We requested and received supplemental briefing on whether the dismissal renders the appeal moot.

II.

DISCUSSION

A. This Court Should Be Notified of Post-appeal Juvenile Court Rulings that Affect the Court's Ability to Grant Effective Relief.

We learned of the juvenile court's November 2015 dismissal from a notice submitted by Mother's counsel. In considering the notice, we discovered possible confusion among dependency practitioners about the obligation to inform the Court of Appeal, First Appellate District, of subsequent juvenile-court rulings in ongoing dependency proceedings. We further discovered that this confusion may have arisen from written direction given by a former clerk of this court decades ago.

As Mother's counsel appreciated, dependency counsel have a duty to bring to the appellate court's attention post-appellate rulings by the juvenile court that affect whether the appellate court can or should proceed to the merits. (See, e.g., In re Josiah Z. (2005) 36 Cal.4th 664, 676, 31 Cal.Rptr.3d 472, 115 P.3d 1133 [appellate courts routinely consider limited postjudgment evidence in connection with motions to dismiss].) Because the November 2015 dismissal affects this court's ability to grant effective relief, Mother's counsel acted properly in informing us about it.

Mother's notice stated that it was submitted in accordance with directives of a 1992 "order" from this court. As evidence of the order, Mother later provided us with a copy of a letter, dated February 6, 1992, that was sent from Ron Barrow, former Clerk of the First District Court of Appeal, to dependency practitioners. The letter directs dependency counsel to inform the court of the "results and effect of any status review hearings conducted by the juvenile court ... while the appeal is pending." Although the letter is worded as though it applied to a single case, the letter has apparently been used to suggest a district-wide expectation. A treatise reports that the letter is "routinely issue[d]" to counsel in dependency appeals. (Abbott et al., Cal. Juvenile Dependency Practice (Cont.Ed.Bar. 2015) Inadequacy of Appellate Remedy; Writ Relief, § 10.3, p. 828.) The letter is no longer disseminated to dependency counsel by the clerk of this court even if it may have been at one time. Still, we are informed that the First District Appellate Project distributes copies of it to the attorneys to whom it assigns dependency cases.

The letter's directives are not binding. To begin with, whatever the court's expectations from dependency counsel may have been in 1992, the letter is not part of the court's current local rules or practices and procedures. More importantly, the letter does not reflect current law. As explained by the California Supreme Court in In re Zeth S. (2003) 31 Cal.4th 396, 2 Cal.Rptr.3d 683, 73 P.3d 541, " ‘an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration. ’ " (Id. at p. 405, 2 Cal.Rptr.3d 683, 73 P.3d 541, italics added.) Consideration of postjudgment evidence in dependency appeals violates generally applicable rules of appellate procedure as well as the specific statutes that govern termination of parental rights, and is contrary to the strong interest in finality of juvenile-dependency proceedings. (Id. at pp. 409–410, 413, 2 Cal.Rptr.3d 683, 73 P.3d 541.) Informing the court of the results and effect of all status-review hearings conducted by the juvenile court during the pendency of an appeal from an earlier ruling, as contemplated by the 1992 letter, without an evaluation of what practical effect such rulings might have on the appeal, could lead to a waste of court resources. (E.g., In re Savannah M. (2005) 131 Cal.App.4th 1387, 1399, 32 Cal.Rptr.3d 526 [granting mother's motion to strike reference to post-appeal change in minors' placement].)

To be clear, parties in dependency appeals are expected to forward post-appeal rulings by the juvenile court when they affect the appellate court's ability to grant effective relief or may play a proper role in the consideration of the appeal's merits. But they should evaluate the practical effect of a subsequent ruling to determine whether this standard is satisfied and then notify us, as Mother in this case did, only when it is.

B. We Decline to Exercise Our Discretion to Review the Juvenile Court's Jurisdictional Findings in Light of the Dismissal of the Underlying Proceedings.

We next turn to what effect the November 2015 dismissal has on Mother's appeal. 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." ’ " (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541, 63 Cal.Rptr. 21, 432 P.2d 717.) An appellate court will dismiss an appeal when an event occurs that renders it impossible for the court to grant effective relief. (Ibid. ) Still, a court may exercise its inherent discretion to resolve an issue when there remain "material questions for the court's determination" (ibid. ), where a "pending case poses an issue of broad public interest that is likely to recur" (In re William M. (1970) 3 Cal.3d 16, 23, 89 Cal.Rptr. 33, 473 P.2d 737 ), or where "there is a likelihood of recurrence of the controversy between the same parties or others." (Grier v. Alameda–Contra Costa Transit Dist. (1976) 55 Cal.App.3d 325, 330, 127 Cal.Rptr. 525.)

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. (E.g., In re James F. (2008) 42 Cal.4th 901, 915, 70 Cal.Rptr.3d 358, 174 P.3d 180 [unlike proceedings where contested issues involve historical facts, dependency proceedings usually involve ongoing evaluations of parents' present willingness and ability to provide...