Filed 12/5/23 In re A.A. CA4/2 See Dissenting Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
In re A.A., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E080907
Plaintiff and Respondent, (Super.Ct.No. SWJ2200217)
v. OPINION
S.T.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Michael J. Rushton,
Judge. Dismissed.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and
Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Prabhath Shettigar,
Deputy County Counsel, for Plaintiff and Respondent.
1 INTRODUCTION
Mother, S.T., appeals from an order made at a Welfare and Institutions Code1
section 366.21, subdivision (e), hearing (six-month status review hearing), in which the
juvenile court denied the mother’s request for return of the child to mother’s physical
custody, finding that return would be detrimental to the welfare of the child. The
Riverside County Department of Public Social Services (department) intervened on
behalf of the child due to the parents’ history of domestic violence, which posed a danger
to the health and safety of A.A., who was under one-year of age at the inception of the
case.
After jurisdiction was established under section 300, subdivision (b)(1), mutual
restraining orders were issued. At the six-month review hearing, the court denied return
of the child but authorized the department to proceed with a step-up plan for mother’s
eventual resumption of physical custody of A.A. Mother appealed.
On appeal, mother argues there is insufficient evidence to support the juvenile
court’s finding of detriment. The department has requested that we receive additional
evidence on appeal respecting a postjudgment order continuing the child in out-of-home
care due to mother’s violation of the restraining orders and domestic violence between
the parents. We treated the request as a motion for judicial notice of postjudgment
1 All further statutory references are to the Welfare and Institutions Code, unless otherwise specified.
2 2 events, which we have granted after requesting letter briefs from the parties on the issue
of mootness. We now dismiss the appeal as moot.
BACKGROUND
On March 26, 2022, the department responded to a referral relating to a domestic
violence incident between the mother, S.T., and father, Aa.A., which started as a verbal
argument and escalated to a physical altercation when father attempted to take the
couple’s then three-month old child, A.A., and mother attempted to prevent him from
doing so. The minor was not injured in the altercation although mother sustained a minor
scratch. Later, when interviewed by a social worker, she was observed to have a black
eye, which she attributed to taking a “boxing class” with father. However, mother did not
believe a restraining order was necessary.
Father had previously physically abused the minor’s older half sibling (not his
biological child) by spanking the child with sufficient force to leave bruises, in 2020.
Father also has child welfare history respecting other children by a different mother.
Mother also had prior child welfare history including a substantiated report of neglect
respecting the older child, and the family law court awarded custody of that half sibling
2 Our order granting judicial notice of the postjudgment documents did not, and could not, take judicial notice of hearsay contents of the documents, although we may consider the findings in the minute order from the later hearing. It is well settled that a court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments. (People v. Franklin (2016) 63 Cal.4th 261, 280, citing Day v. Sharp (1975) 50 Cal. App. 3d 904, 914.) Judicial notice is taken of the filing and rendering of documents, not of the truth of the matters asserted therein. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063-1064 [overruled on a different point in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1273].)
3 to her noncustodial father. In addition, mother has a mental health history involving an
involuntary hold (§5150 et seq.) for a mood disorder.
Father and mother’s history of domestic violence began in 2021, when mother was
pregnant with the minor, A.A. Father was arrested for child abuse and neglect allegations
were made in juvenile court as to mother respecting this incident. On May 4, 2022, an
out-of-custody dependency petition was filed pursuant to section 300, subdivision (b)(1),
which alleged mother had neglected A.A. by engaging in domestic violence with father,
she had unresolved mental health issues, including depression and a mood disorder for
which she was not receiving treatment, as well as several allegations against father.
Shortly after the petition was filed, the parents engaged in domestic violence and
police were involved. Mother allowed father to move back into her residence despite the
terms of the safety plan that had been put in place, and she acknowledged that she was
dependent on father because she had lost her employment. Father informed the social
worker he had the child with him and had filed an application for a temporary restraining
order due to mother’s violence, explaining that she had pulled a knife on him in their last
altercation. Due to the department’s concerns over mother’s mental health, detention of
the child was sought by way of a protective custody warrant, issued on May 9, 2022.
On May 12, 2022, a detention hearing was held after the child was picked up on
the protective custody warrant, and the court ordered the child detained with his paternal
grandmother. The court also issued mutual temporary restraining orders prohibiting
contact between the parents. Regarding application of the Indian Child Welfare Act of
4 1978 (ICWA)3, the court made inquiry of both parents, who also executed ICWA-020
forms, and found that ICWA does not apply. Also at the hearing, an amended petition
was filed modifying allegation b-1 to indicate mother had violated the safety plan by
allowing father to move back into her residence, as well as allegation b-4, in the same
manner respecting father.
Prior to the jurisdiction hearing, an addendum report was submitted, with
information regarding mother’s participation in prejurisdiction services and her progress,
including the results of the social worker’s virtual home assessment of mother’s home.
Mother was compliant with services and had obtained a virtual psychiatric evaluation,
which concluded mother posed no acute or imminent danger to herself or others.
However, while investigating the allegations, the social worker received a video of
mother stabbing a mattress with a knife, as well as documentation regarding the section
5150 hold in February 2022. Father also provided the social worker with other undated
photographs to support allegations against the mother. The department concluded the
child should remain in out-of-home placement due to concern the parents would continue
to engage in incidents of domestic violence and not protect the child, creating a risk the
child would suffer serious physical and emotional harm, to include death, if the child
were left in the parents’ care without intervention.
On July 13, 2022, the court conducted the jurisdiction hearing. The department
agreed to strike some language from an allegation relating to father, so the court amended
3 Title 25 United States Code section 1901 et seq.
5 the petition by interlineation. Both parents executed forms indicating they waived their
trial rights (Judicial Council Forms, form 190) and wished to submit the case on the basis
of the evidence contained in the social worker’s reports. The court found the allegations
of the amended petition true by a preponderance of evidence and declared the child to be
a dependent. The court also found the circumstances under section 361, subdivision
(c)(1) true by clear and convincing evidence as to both parents, and removed custody of
the child from both parents, maintaining the child in his current placement.
The court ordered reunification services for the parents and authorized the
department to liberalize visitation, which could include unsupervised, overnight,
weekends, and placement on family maintenance based upon the parent’s compliance in
their case plan, if deemed appropriate. The court also granted the restraining orders for a
duration of three years.
In its six-month status review report, the department recommended that the child
remain a dependent placed in out-of-home care, and that services continue for an
additional six months. It also recommended that unsupervised, overnight, weekend visits
be authorized, and family maintenance for the parents based on their compliance with the
case plan. The recommendation respecting mother was based on her current
circumstances showing she was working full-time as a leasing agent, earning sufficient
income to rent a one-bedroom residence, and reported no mental health issues. In
addition, she had completed general counseling, a domestic violence program, and a
parenting education program, and the psychiatrist who evaluated mother indicated that no
6 psychotropic medications were needed. The child remained placed with the paternal
grandmother who met all his medical, developmental, and emotional needs.
The report also indicated mother was visiting the child two days per week for eight
hours, unsupervised, and that the department intended to evaluate her home for overnight
visits. Although the social worker indicated reunification was likely, the department
needed to continue to assess the transition for the mother and child in order to reunify.
The department thus recommended that services be continued because the risk to the
child would be moderate if he was returned to the mother.
On February 9, 2023, the social worker filed an addendum report relating to the
six-month status review hearing, recommending nonreturn of the child, but continuing to
recommend liberalized visits and overnights. The social worker reported that the
evaluation of mother’s home was completed and favorable. There were no safety
concerns identified, all the utilities were in working order, and the mother had
appropriate provisions to meet the child’s needs. The mother was informed that
overnight visitation could begin the following week, which happened. However, further
court involvement was recommended to monitor mother’s progress and to assist in the
transition from family reunification to family maintenance, when that occurred.
On February 16, 2023, at the six-month status review hearing (§ 366.21, subd.
(e)), mother requested that the child be returned to her custody that day, due to her
successful completion of court-ordered services, as well as the successful overnight
visits. The court declined to order family maintenance at that hearing, but did order the
department to continue to move forward with their step-up plan as indicated. The court
7 thereafter adopted the department’s recommendation of continuing the child in out-of-
home placement, but it authorized the department to “liberalize visitation, which may
include unsupervised, overnight, weekends and placement on family maintenance based
upon the parent’s compliance in their case plan, if deemed appropriate.”
On March 14, 2023, mother appealed from the order made at the review hearing.
On August 2, 2023, the department made a motion to augment the record to
include postjudgment evidence, which we treated as a request for judicial notice of the
postjudgment hearing minute order from the July 10, 2023, 12-month status review
hearing, at which the dependency was continued and the child was maintained in out-of-
home placement. We requested that mother submit a supplemental letter brief on the
question of whether the postjudgment events have rendered the appeal moot, but she
failed to do so.
DISCUSSION
Mother’s appeal from the six-month review hearing alleges there is insufficient
evidence to support the trial court’s finding of detriment, which served as the predicate
for not returning the child to mother’s custody. However, in the meantime, the trial court
made a subsequent finding of detriment and ordered the child maintained in out-of-home
placement. We have not taken judicial notice of the information contained in the social
worker’s report, which also accompanied the department’s motion that we receive
postjudgment evidence, due to the hearsay nature of the contents of the report (see In re
Vicks (2013) 56 Cal.4th 274, 314), because it was not before the trial court at the time of
the hearing for the six-month status review. Nevertheless, based on the judicial action
8 taken at the later hearing, the department argues the issue of nonreturn at the initial
review hearing has been rendered moot by subsequent events. We agree.
It is a court’s duty, including in the dependency context “‘“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.”’ [Citation.]” (In re D.P.
(2023) 14 Cal.5th 266, 276, quoting Consol. etc. Corp. v. United A. etc. Workers (1946)
27 Cal.2d 859, 863 (Consolidated).) A case becomes moot when events render it
impossible for a court to grant the appellant any effective relief. (San Bernardino County
Bd. of Supervisors v. Monell (2023) 91 Cal.App.5th 1248, 1262-1263, citing In re D.P.,
at p. 276.)
For relief to be “effective,” two requirements must be met. First, the appellant
must complain of an ongoing harm. Second, the harm must be redressable or capable of
being rectified by the outcome the appellant seeks. (In re D.P., supra, 14 Cal.5th at
p. 276, citing Consolidated, supra, 27 Cal.2d at p. 865.) A reviewing court must “‘decide
on a case-by-case basis whether subsequent events in a juvenile dependency matter make
a case moot and whether [its] decision would affect the outcome in a subsequent
proceeding.’” (In re D.P., at p. 276, quoting In re Anna S. (2010) 180 Cal.App.4th 1489,
1498; see also In re Damian L. (2023) 90 Cal.App.5th 357, 369, quoting In re D.P., at
p. 276.) Issues of justiciability, such as mootness, are generally reviewed de novo. (In re
D.P., at p. 276, citing Robinson v. U-Haul Co. of California (2016) 4 Cal.App.5th 304,
319.)
9 Thus, the general rule is that “an action that originally was based on a justiciable
controversy cannot be maintained on appeal if all the questions have become moot by
subsequent acts or events. A reversal in such a case would be without practical effect,
and the appeal will therefore be dismissed.” (In re Dani R. (2001) 89 Cal.App.4th 402,
404, quoting 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 642, p. 669.)
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. (In re N.S. (2016) 245 Cal.App.4th 53, 59.) Due to the dynamic nature of
juvenile dependency proceedings, a subsequent order of the juvenile court may render an
issue on appeal moot. (In re M.F. (2022) 74 Cal.App.5th 86, 110, citing In re Karen G.
(2004) 121 Cal.App.4th 1384, 1390.) The critical factor in considering whether a
dependency appeal is moot is whether the appellate court can provide any effective relief
if it finds reversible error. (In re M.F., at p. 111, citing In re N.S., at p. 60.)
There are situations where, applying a case-by-case analysis, a reviewing court
will exercise discretion to resolve appeals that are technically moot if they present
important questions affecting the public interest that are capable of repetition yet evade
review. (In re Damian L., supra, 90 Cal.App.5th at p. 369; In re A.M. (2013) 217
Cal.App.4th 1067, 1078-1079.) Such situations may involve a jurisdictional or
dispositional judgment or order which affects parental custody rights, curtails a parent’s
contact with his or her child, or has resulted in dispositional orders which continue to
adversely affect a parent. (In re D.P., supra, 14 Cal.5th at p. 278, & cases there cited.)
10 To determine justiciability, a reviewing court may consider evidence of
postjudgment events or evidence developed after the ruling challenged on appeal, for the
limited purpose of determining whether the subsequent development has rendered an
appeal partially or entirely moot. (In re Damian L., supra, 90 Cal.App.5th at p. 369,
citing In re M.F., supra, 74 Cal.App.5th at p. 110 [taking judicial notice of minute orders
from hearings that occurred after the challenged order]; & In re Salvador M. (2005) 133
Cal.App.4th 1415, 1422 [augmenting the record to show the issue on appeal was rendered
moot by subsequent events in the juvenile court].)
Here, the order made at the six-month review hearing was to maintain the child in
out-of-home placement while a step-up plan was in process, designed to aid the transition
for mother and child in the resumption of child custody. The department had
recommended the graduated transition because there was a moderate risk of harm to the
child if immediately returned, despite mother’s active participation in services. The more
recent postjudgment order includes a finding of detriment, an order of nonreturn of the
child to mother’s custody, and a continuation of the dependency for an additional six 4 months.
4 This order, based on a subsequent finding of detriment, was not appealed and is now final. Just as an unappealed disposition or postdisposition order that is final and binding may not be attacked on an appeal from a later appealable order (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018, citing In re Jesse W. (2001) 93 Cal.App.4th 349, 355), an appeal from a six-month review hearing may not serve as a basis to vacate or modify an unappealed order or judgment made at a later hearing. We lack jurisdiction to reverse, vacate or modify a final, unappealed judgment or order.
11 Without considering the hearsay contents of the postjudgment information
proffered by the department, the subsequent order maintaining the child placed out of the
mother’s home precludes us from providing effective relief even if we were to determine
that the order was made in error, because the child was subsequently ordered to be
maintained placed out of mother’s home based on a current detriment finding. We
further observe that the order made at the six-month status review is not the type of order
that p resents an important legal question or affects public interest because it depends on
specific factual findings. Nor is it likely to evade review because periodic review
hearings continually reassess the existence of detriment and the current custody status,
and may be—even should be—reviewed by way of writ. (See In re Tania R. (1995) 32
Cal.App.4th 447, 450-451.)
Due to the superseding order continuing the child in out-of-home placement, based
on circumstances arising after the initial review hearing, there is no possibility of
fashioning relief for mother, even if we were inclined to reverse.
DISPOSITION
The appeal is dismissed as moot.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J. I concur:
MILLER J.
12 [In re A.A.; DPSS v. S.T., E080907]
MENETREZ, J., Dissenting.
I do not believe that the appeal is moot. If we agreed with appellant that the
detriment finding at the six-month review hearing was not supported by substantial
evidence, then we could grant effective relief: We could vacate the findings and orders
from that hearing and remand with directions to redo the hearing. The juvenile court
could return the child at the redone hearing. The existing orders from the 12-month
review hearing would not prohibit return at the redone hearing, just as they will not
prohibit return at the 18-month review hearing.
The proceedings at the 12-month review hearing do, however, have consequences
for this appeal. The evidence introduced at that hearing shows that any error at the six-
month review hearing was harmless. Were we to find error, vacate, and remand with
directions to redo the six-month review hearing, the new hearing would be conducted in
light of current conditions, not on the old record from the original six-month review.
And the 12-month status review report contains ample evidence that return would be
detrimental. There is consequently no reasonable probability of an outcome more
favorable to appellant, so any error was harmless. (In re D.P. (2020) 44 Cal.App.5th
1058, 1068.)
For the foregoing reasons, I would affirm rather than dismiss, and I therefore
respectfully dissent.
MENETREZ J.