Robert A., In re, D014489

Citation4 Cal.App.4th 174,5 Cal.Rptr.2d 438
Decision Date04 March 1992
Docket NumberNo. D014489,D014489
CourtCalifornia Court of Appeals
PartiesIn re ROBERT A., et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. ROBERT A., et al., Minors, Objectors and Appellants.

Russell S. Babcock, La Mesa, and Shirley L. Feagles, San Diego, appointments by the Court of Appeal, for objectors and appellants.

Lloyd M. Harmon, Jr., County Counsel, Susan Strom, Chief Deputy County Counsel, Gary M. Bubis, Gary C. Seiser, Patricia L. Davis, Irene M. Kessler and James H. Wellman, Deputy County Counsel, for plaintiff and respondent.

Francis J. Bardsley, Public Defender, Philip W. Harry, Asst. Public Defender, William E. Boyland, Chief Deputy Public Defender, Ana L. Espana, Thomas S. Palmer, Susan M. Gaskins, Deputy Public Defenders, Appellate Defenders, Inc., and Carmela F. Simoncini, San Diego, as amici curiae upon the request of the Court of Appeal.

HUFFMAN, Associate Justice.

Two issues are raised in this appeal by four dependent children of the juvenile court, Robert A. and his three half-siblings, Tamela, Heather and Jere D. (the children), of the judgment which included dispositional orders that the children be removed from the physical custody of their parents (Regina A. and Jere D.).

The children contend the juvenile court erred in making a general placement order that the custody of the children should be under the supervision of the probation officer, with the minors to be placed in licensed foster care. (WELF. & INST. CODE, § 361.21, subd. (b).) They argue the facts of the case and the applicable law required the court to make a specific placement order of custody to their current foster parent. In a related contention, the children claim the juvenile court erroneously refused to order that the minors' appointed counsel be given notice of and the opportunity to consult on any changes in the children's foster placement, before such changes were made. (§ 317, subd. (c), (e).)

We conclude that although the juvenile court correctly applied existing law by making a general placement order requiring that the children's custody be supervised by the probation officer (who would then administer that order by placing the children in foster care as appropriate), the juvenile court did not thereby divest itself

of its duty to ensure that the ultimate placement made was suitable and in the children's best interests. Moreover, we conclude the children's argument their counsel was entitled to receive prior notice of any changes in their foster placement is supported by statute to the extent that counsel must be enabled to remain in contact with the client. However, the failure to give notice here was harmless. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Petitions were filed as to all four of these children on February 1, 1991, alleging they were dependent children of the juvenile court as defined by section 300, subdivisions (a) and (b). The allegations of the petitions were that both parents had verbally threatened the children with serious physical harm, were unable to provide regular care for the children due to their own substance abuse, and had exposed the children to violent confrontations in the family home which endangered their physical safety. The detention hearing resulted in an order that the children be detained in the home of their parents' friend, Desiree T., a pending licensed foster placement. Shortly thereafter, the parents entered pleas of no contest, and the petition was amended to delete the allegation of the parents' substance abuse.

The social study prepared for the dispositional hearing stated that Robert A. was interviewed by the probation officer, and said he is "o.k." with living with Desiree T. and is glad he and his two sisters and younger brother are together. At the time of the dispositional hearing, the children were still living in the foster home of Desiree T.

At disposition, the juvenile court referee removed physical custody of the children from their parents under section 361, subdivision (b)(1). (§ 358.) Although the social study prepared by the probation officer recommended specifically that the children be placed in Desiree T.'s licensed foster home, the attorney for the department of social services (the Department) requested that the court issue a general placement order in lieu of a specific placement order. 2 Counsel for the parents concurred, as did appointed counsel for the children. The children's attorney stated:

"I would be in agreement with the recommendations and the changes by the Department. [p] if the Court is implementing a general placement order on behalf of these minors, I would ask for consultation should a change be made or if not, a minimum of 24 hours' notice, if a change is made, so I can know where my clients are."

The juvenile court referee then made dispositional orders, including general placement of the children with the Department, subject to the social worker being accorded the discretion to detain the minors with the mother once it was verified she had obtained specified reunification services, on the concurrence of the minors' attorney. 3 "The law is very clear under the statute and the Rules of Court except if the Court returns to a parent or is considering placement with a relative, the Court's only authority is to make a general placement order with the Department. [p] ... [p] I have received no guidelines from the Department or the court on what to do. It would seem to me it is prudent and reasonable to give the minors' attorney prior notice. [p] ... [p] ... I am not clear whether, under current law, the Court can limit the statutory authority given to the Department and imposing those types of requirements might be a limitation. [p] But again this court would deem it prudent and reasonable and it certainly would diminish any exposure that might arise if there is complete cooperation with the minors' counsel."

A six-month review hearing was ordered. The children's attorney then requested clarification from the court on her request for either 24-hour notice or concurrence on a change of placement for the minors. The court responded:

The court, however, declined to make the requested order that notice be given to the childrens' attorney of changes in foster placement. On her clients' behalf, the attorney sought rehearing of the juvenile court referee's decision. (§ 252.) The application was denied and the children appeal the order. 4

DISCUSSION

We first address the Department's contention in its respondent's brief that the children's attorney's failure to object at the dispositional hearing to the general placement order operated as a waiver of any claim of error on appeal. (In re Heidi T. (1978) 87 Cal.App.3d 864, 876, 151 Cal.Rptr. 263.) Although the children's attorney expressed her agreement with the Department's recommendations, including the recommended general placement order, the attorney continued to seek notice of any change in placement pursuant to the order, or an opportunity to concur with any changes made in placement. The children's acquiescence, through their attorney, with the general placement order was thus not unconditional.

However, the fact that the general placement order apparently resulted in a temporary placement of the children with Desiree T., which was the result sought by the children in their request for a specific placement order, makes it reasonable to view the challenge to the general placement order as in some sense a moot point. This is especially so since according to amicus (see fn. 3, ante ), at least one child has since been returned to his mother's care. It is well established that an appeal presenting only an abstract or academic question is subject to dismissal as moot. (in RE jodY R. (1990) 218 caL.app.3d 1615, 1621-1622, 267 caL.rptr. 746.) an appellate court may nevertheless address the merits of such an appeal, pursuant to an established exception which provides " '[i]f an action involves a matter of continuing public interest and the issue is likely to recur, a court may exercise an inherent discretion to resolve that issue, even though an event occurring during its pendency would normally render the matter moot.' [Citation.]" (Id. at p. 1622, 267 We first address the merits of the children's arguments that a specific placement order was required here. We then examine their claim that their attorney was entitled to receive notice of and the opportunity to consult in any changes in their current foster placement. Our analysis has been aided by the excellent amicus curiae briefs we requested and received from the child advocacy division of the department of the public defender and the staff attorneys of Appellate Defenders, Inc., and thoughtful supplemental briefing from the Department. (Rule 14(b).)

                Cal.Rptr. 746.)   Accordingly, we decline to find that the children have waived their arguments on appeal, or that those arguments address only moot points.  (In re Heidi T., supra, 87 Cal.App.3d 864, 876, 151 Cal.Rptr. 263;  In re William M.  (1970) 3 Cal.3d 16, 23, 89 Cal.Rptr. 33, 473 P.2d 737.)
                
I General vs. Specific Placement Orders

In support of their claim the juvenile court referee erred in making a general placement order rather than a specific order in this case, the children raise three separate points: (1) When interpreted together, section 361.2, subdivision (b) and section 362, along with rule 1456(a), authorize a specific foster care placement order when the children cannot be placed with a parent; (2) the separation of powers doctrine prevents the juvenile court from delegating its judicial power to the Department by according it the unfettered discretion to decide on the children's foster placement; and (3) Civil Code section 4600 should apply to this dependency...

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