In Re: Sacramento County Dept. of Health & Human Serv. v. Chirstina

• Decision Date: 27 August 2001
• Citation: 111 Cal.Rptr.2d 310
• Court: California Court of Appeals Court of Appeals
• Parties: (Cal.App. 3 Dist. 2001) In re CHRISTINA A., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. CHRISTINA A., Appellant. C036360 THIRD APPELLATE DISTRICT (Sacramento) Filed

111 Cal.Rptr.2d 310 (Cal.App. 3 Dist. 2001)

In re CHRISTINA A., a Person Coming Under the Juvenile Court Law.

SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES Plaintiff and Respondent, v. CHRISTINA A., Appellant.

C036360

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT (Sacramento)

Filed 8/27/01

(Super. Ct. No. JD214968)

APPEAL from a judgment of the Superior Court of Sacramento County. Scott P. Harman, Juvenile Court Referee. Affirmed.

John L. Dodd, under appointment by the Court of Appeal, for Appellant.

Robert A. Ryan, Jr., County Counsel, Lilly C. Frawley, Deputy County Counsel, for Plaintiff and Respondent.

CERTIFIED FOR PUBLICATION

SCOTLAND, P.J.

Notes:

Christina A. (the minor) appeals from a juvenile court order adjudging her a dependent child and setting a status review hearing. (Welf. & Inst. Code, 300, 358; further section references are to this code unless otherwise specified.)

Her claim of error involves the timing of the six-month review hearing after a dependent child under the age of three has been removed from parental custody and reunification services have been ordered. ( 361.5, subd. (a), 366.21, subd. (e).) Unfortunately, the applicable statutory language appears to lack consistency as a result of amendments made in 1998.¹

Section 366.21, subdivision (e) refers to the six-month review hearing being "held six months after the initial dispositional hearing . . . ." (Italics added; see also, 366, subd. (a)(1) ["The status of every dependent child in foster care shall be reviewed . . . no less frequently than once every six months, as calculated from the date of the original dispositional hearing . . . ."], italics added.)

But in section 361.5, subdivision (a)(2), the Legislature has provided that, for a child who was under the age of three when the child was initially removed from the physical custody of his or her parent, "court-ordered services shall not exceed a period of six months from the date the child entered foster care," i.e., from the "earlier of the date of the jurisdictional hearing . . . or the date that is 60 days after the date on which the child was initially removed from the physical custody of his or her parent . . . ." ( 361.5, subd. (a)(3), italics added.)

Although section 361.5, subdivision (a)(2) speaks to the duration of services, it suggests a review hearing should be held no later than the date on which services must end, i.e., six months after the jurisdictional hearing, or earlier if the jurisdictional hearing was held over 60 days after the child initially was removed from parental custody. Otherwise, there would be needless delay between the end of services and the juvenile court's review of the effectiveness of those services in order to determine whether the child should be returned to parental custody.

Construing these statutes in light of the purpose of the amendments enacted in 1998 -which was to minimize delay in juvenile dependency proceedings and reduce the time that dependent children stay in temporary placement -and in view of section 366, subdivision (a)(1) -which contemplates that a review hearing may occur prior to six months from the date of the initial dispositional hearing -we agree with the minor that the review hearing in her case should have been scheduled no later than six months from the date of the jurisdictional hearing rather than six months from the date of the dispositional hearing.

Nevertheless, because the date of the review hearing has come and gone while this appeal was pending, we cannot provide any meaningful relief. Accordingly, we shall affirm the juvenile court's order.

FACTS AND PROCEDURAL BACKGROUND

After the two-year-old minor was removed from parental custody on February 22, 2000, based on allegations of physical abuse and neglect by her mother, the Department of Health and Human Services (DHHS) filed a petition alleging that the minor came within the provisions of section 300.

A detention hearing occurred on February 28, 2000, at which the juvenile court ordered DHHS to place the minor in temporary foster care.

At the jurisdictional hearing on March 21, 2000, the court found that the minor had suffered serious physical harm due to unreasonable acts or omissions by her mother and the mother's psychiatric problems and substance abuse. ( 300, subds. (a), (b).) Suspecting that the mother might have a mental disability which rendered her incapable of utilizing services ( 361.5, subd. (b)(2)), the court continued the disposition hearing to allow DHHS to obtain two psychological evaluations of the mother.

When the mother failed to submit to two evaluations, the court proceeded with the dispositional hearing on July 12, 2000, adjudicated the minor a dependent child, found that it would be detrimental to the minor to return her to parental custody, and ordered DHHS to provide reunification services to the minor's mother.

Over objection by the minor's counsel, the court scheduled the six-month review hearing ( 366.21, subd. (e)) for January 10, 2001. Citing section 361.5, subdivision (a)(2), the minor's counsel argued the review hearing should have been set within six months of the jurisdictional hearing, i.e., in September 2000.

DISCUSSION

I

We begin by deciding whether this appeal should be dismissed as moot. The date set for the review hearing passed soon after the appellate briefing was completed; consequently, we are unable to provide the minor with the relief she seeks.

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." (Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10.)

An exception to this rule exists where the question to be decided is of continuing public importance and is one "'"capable of repetition, yet evading review."'" (Press-Enterprise Co. v. Superior Court (1986) 478 U.S. 1, 6 ; State of Cal. ex rel. State Lands Com. v. Superior Court (1995) 11 Cal.4th 50, 61.) Accordingly, "if a pending case poses an issue of broad public interest that is likely to recur, the court may exercise an inherent discretion to resolve that issue even though an event occurring during its pendency would normally render the matter moot." (In re William M. (1970) 3 Cal.3d 16, 23; accord, Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1202, fn. 8.)

This is such a case. The appropriate timing for the review hearing at issue in this case is a question likely to recur in other cases and involves an issue of broad public interest because it affects both reunification of families and permanent plans for dependent children. As in this case, due to the expedited nature of dependency proceedings, appellate courts may be unable to obtain the appellate record and briefing by the parties in time to decide this important issue before it becomes moot in a particular case. (See, e.g., Renee S. v. Superior Court (1999) 76 Cal.App.4th 187, 192; In re Michelle M. (1992) 8 Cal.App.4th 326, 330.) Therefore, we exercise our discretion to decide the issue.

II

Prior to 1998, section 361.5, subdivision (a) stated that, when a dependent child was removed from parental custody, services to facilitate reunification should be provided to parents for a period not to exceed six months if the child was under the age of three when initially removed from parental custody, or not to exceed 12 months if the child was three years of age or older when initially removed from parental custody. The statute further provided that court-ordered services could be "extended up to a maximum time period not to exceed 18 months if it can be shown that the objectives of the service plan can be achieved within the extended time period." (Stats. 1996, ch. 101, 1, ch. 142, 1, ch. 1082, 2, 2.5, 2.7, 8, ch. 1083, 1, 2, 2.5, 2.7, 10).

Because no other time limitations appeared in the statutes for such children, the assumption and practice was that the court-ordered services described in former section 361.5 commenced from the date of the initial dispositional hearing. A review hearing was scheduled at six months from the initial dispositional hearing to assess the parent's progress toward reunification and determine whether the child should be returned to parental custody. ( 366, subd. (a)(1) ["The status of every dependent child in foster care shall be reviewed periodically as determined by the court but no less frequently than once every six months, as calculated from the date of the original dispositional hearing . . . ."]; former 366.21, subds. (e), (f).)

In 1998, the Legislature amended sections 361.5 and 366.21 relating to the provision of services and to foster care for dependent children. (Stats. 1998, ch. 75, 1, ch. 1054, 25, 25.5, 25.6, 25.7, 33, 33.5, 33.6, 33.7, ch. 1055, 2, 2.1, 2.2, 2.3, 3, 3.1, 3.2, 3.3, ch. 1056, 12, 12.1, 12.3, 12.5, 15, 15.1, 33, 34.) The intent of the Legislature in amending those statutes was to conform California law to the changes in federal law enacted as the Adoptions and Safe Families Act (ASFA), PL 105-98. (Assem. Com. on Human Services, Analysis of Assem. Bill 2773 (1997-1998 Reg. Sess.) as amended April 14, 1998; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill 2773 (1997-1998 Reg. Sess.) as amended Aug. 24, 1998.)

The ASFA amendment to the portion of the Social Security Act relating to child services makes safety a paramount concern in the placement and provision of services to dependent children (42 U.S.C. 671(a)(15)); conditions federal funding for state child welfare services upon the state's adoption of a plan for foster care and adoption assistance that, among other things, includes a system by which the status of a child placed in foster care is reviewed "periodically but no less frequently than once every six months" (...