Joel H., In re

• Decision Date: 27 October 1993
• Docket Number: No. F018245,F018245
• Citation: 19 Cal.App.4th 1185,23 Cal.Rptr.2d 878
• Court: California Court of Appeals Court of Appeals
• Parties: In re JOEL H. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. DIANE L., Defendant and Appellant.

Page 878

23 Cal.Rptr.2d 878

19 Cal.App.4th 1185

In re JOEL H. et al., Persons Coming Under the Juvenile Court Law.

FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. DIANE L., Defendant and Appellant.

No. F018245.

Court of Appeal, Fifth District, California.

Oct. 27, 1993.

Rehearing Denied Nov. 22, 1993.

[19 Cal.App.4th 1189] Theodore S. Goodwin, Sacramento, under appointment by the Court of Appeal, for defendant and appellant.

Phillip S. Cronin, County Counsel, and William G. Smith, Deputy, Fresno, for plaintiff and respondent.

OPINION

BEST, Presiding Justice.

Diane L. appeals from a juvenile court order made pursuant to WELFARE AND INSTITUTIONS CODE SECTION 387¹ permanently removing her great-nephew Joel H., born June 6, 1984, from her physical custody. Pursuant to an earlier juvenile court order for out-of-home placement, appellant had been Joel's care provider for more than three years. The appeal raises numerous issues, including whether the appellant has standing and a right to court-appointed counsel on appeal, and whether the removal order was supported by substantial evidence. During the pendency of this appeal, the juvenile court terminated its dependency jurisdiction over Joel and returned him to his mother's custody. On review, we hold: the order terminating Joel's dependency does not render this appeal moot; Diane L. has standing as Joel H.'s de facto parent to appeal, though she is not entitled to court-appointed appellate counsel; and there was insufficient evidence to support the court's findings underlying the removal order.

STATEMENT OF CASE AND FACTS

In October 1987, three-year-old Joel H., along with his one-and-a-half-year-old half sister, Maryann V., and newborn half sister, Margarita V., were declared dependent children of the Fresno County Juvenile Court due to their mother's drug abuse and incarceration and the unknown whereabouts of their fathers. Subsequently, in the spring of 1988, Joel was placed in the home of his maternal great-aunt, Diane L., and her husband, Joe L. ²

In May 1990, after unsuccessful efforts at reunification, the juvenile court selected adoption as its permanent plan (§ 366.25) for Joel, as well as his half sisters. In doing so, the court found Diane L. and her husband were willing and able to adopt the three children. Accordingly, the court authorized the Department of Social Services (department) to initiate an action to free the children from parental custody and control pursuant to Civil Code section 232.

By the later part of 1990, the department had received a report of possible neglect and abuse by the L.s. ³ Although the department could not substantiate any harm to the children, it remained concerned and recommended by the spring of 1991 that the permanent plan for the children at least be down-graded to long-term relative care. ⁴ At its March 1991 status review hearing, however, the juvenile court did not modify its permanent plan for the three children.

Then, in June 1991, the juvenile court ordered the department to file by early July either Civil Code section 232 petitions to free the children for adoption or a section 388 petition to modify. In response, the department first filed petitions to modify the permanent plan because it did not believe Diane L. and her husband could be approved as adoptive parents. By October 1991, the department apparently wanted the children removed from the L. home; the juvenile court ordered the department to file supplemental petitions if the children were to be moved.

Consequently, in December 1991, the department removed the children from the L. home, placed them in foster care, and filed section 387 petitions to permanently remove them from the physical custody of Diane L. and her husband. According to the petitions, the court's previous order placing the children in the physical custody of the L's had not been effective in protecting them. Specifically, the department alleged with regard to Joel H.:

"Joe [L.] and Diane [L.] have been observed physically abusing subject minor Joel [H.]. The physical abuse has in part consisted of striking Joel with their hands and with other objects, pushing him around and lifting him off the ground by one arm while striking him.

"Joe and Diane [L.] have also been observed emotionally abusing subject minor Joel [H.] The emotional abuse has in part consisted of yelling at Joel and belittling him.

"Joe and Diane [L.] have also been observed utilizing inappropriate methods of discipline upon subject minor Joel [H.]. The inappropriate discipline has in part consisted of locking Joel in his room for one to two hours and sending Joel to bed without feeding him dinner."

An adjudication hearing on the petitions was conducted in April 1992. In support of their claim of physical and emotional abuse to Joel H., the department relied in large measure on the testimony of two of Mr. L.'s relatives, Christine Y., his daughter by a previous marriage, and Jody L., his nephew.

The nephew testified he had stayed "a couple of years back" in the L. home for approximately two months and later visited the family for shorter periods. During these visits, he witnessed the L.s correct Joel by spanking him with "some good solid swats." It was not a "swat or two." In the nephew's words, Joel was "swatted good, you know, like any child does, I guess." The spankings were administered on the bottom with a hand. When asked if he saw the L.s abuse Joel, the nephew replied he "wouldn't know how to judge" whether the spankings constituted correction or abuse. He either did not witness or could not remember what would precipitate the spankings. He did not recall Diane L. or his uncle spanking Joel's half sisters.

Sometimes, Joel would try to run away while he was being spanked. One time when Joel tried to run away, Diane L. grabbed and pulled his arm up so he could not leave. After a spanking, Joel would cry and be sent to his room. Although Jody L. at first testified the L.s locked Joel in his room, he later testified he could not remember if there was a lock on the door to Joel's room. Joel would later reappear to eat or bathe. The nephew also recalled Joel "being shaken a couple of times to achieve his attention or something." This bothered the witness not because of some perceived effect that the shaking had on Joel but rather because of what the nephew had experienced as a child. There was no explanation in the record of what the nephew meant by this remark.

The L.s were also "a little harsh" in their tone when they corrected Joel. They both spoke loudly when they were upset with Joel. The nephew could not remember, however, what the L.s said when they corrected the boy.

Christine Y. testified she stayed with the L.s for approximately a month in 1989 and later visited the family approximately once every two weeks. She also saw Diane L. spank Joel H. on the bottom. It seemed to Christine that Joel was in trouble more than Jenna (a nickname for Margarita) and was punished more. ⁵

Christine testified she once witnessed Diane L. hold Joel's arm up while she spanked him on the bottom. The spanking seemed "mean" to Christine yet she could not otherwise describe the incident; what, if anything, was said, or what Joel had done to provoke the spanking. She did recall that afterwards Joel was sent to his room in which he threw "a fit" by screaming and hitting the floor with his feet.

She also witnessed Joel once being sent to bed without any dinner. Last, Christine remembered once asking Joel if he was happy. He seemed "mopey" to her. Joel shook his head and said no. However, Christine did not pursue the conversation to learn why the child was unhappy.

At the conclusion of the hearing, the court in relevant part found that Diane L. and her husband had physically and emotionally abused Joel H. "by inappropriate discipline, by striking, yelling at Joel and belittling him...." It further determined the prior placement order had not been effective and would continue to be ineffective for the protection of these minors. In turn, the court ordered that Joel be permanently removed from the physical custody of the L.s.

Joel testified in chambers that he wanted to return to the L. home; he liked living with the L.s whom he referred to as "Mom" and "Dad."

DISCUSSION

I. MOTION TO DISMISS

The department has asked this court to dismiss Diane L.'s appeal because the juvenile court has on September 1 of this year terminated its dependency jurisdiction over Joel and returned him to his mother's custody. According to the department, this change in events renders Diane L.'s appeal moot because even if she prevailed on appeal, her victory would be a hollow one; the juvenile court is presently without authority to give Diane L. custody of Joel. Diane L. urges this court not to dismiss her appeal because her ability to interact with Joel is threatened by the juvenile court's finding of physical and emotional abuse and its order permanently removing Joel from her custody.

We acknowledge our duty is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions. (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.) However, the fact that the juvenile court has terminated its jurisdiction over Joel H. does not render it impossible for this court to grant Diane L. any effectual relief. (Ibid.)

Regrettably, it is entirely possible given the family history here that Joel H. may once again become the subject of dependency proceedings. Should this occur, the finding of physical and emotional abuse and order permanently removing Joel from Diane L.'s custody would have res judicata effect and would prevent a court from considering her home if Joel had to be removed from his mother's custody. However, if this court were to find the juvenile court in this matter...