Filed 1/8/16 In re S.D. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re S.D., a Person Coming Under the Juvenile Court Law. D068762 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. CJ1199) Plaintiff and Respondent,
v.
L.D.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Laura J.
Birkmeyer, Judge. Dismissed.
Katherine A. Clark, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent. L.D. (Mother) appeals an order granting a petition filed by the San Diego County
Health and Human Services Agency (the Agency) under Welfare and Institutions Code1
section 388 to suspend Mother's visitation with her four-year-old son S.D. On October
14, 2015, while the appeal was pending, the juvenile court ordered that Mother's
visitation with S.D. resume. Based on the October 14, 2015, visitation order, the Agency
filed a motion to dismiss Mother's appeal as moot and a request for judicial notice of the
court's October 14 minute order and the reporter's transcript of the October 14 hearing.
We grant the Agency's request for judicial notice and motion to dismiss the appeal as
moot.
FACTUAL AND PROCEDURAL BACKGROUND
On November 21, 2014, the Agency filed a petition on behalf of then-three-year-
old S.D. under section 300, subdivision (a), alleging Mother had subjected S.D. to a
substantial risk of serious physical harm when she hit him "on the back and head with her
fist multiple times, and slapped him in the face with her hand." The petition further
alleged that Mother was arrested for child cruelty and had a history of hitting S.D. The
Agency filed the petition and detained S.D. after witnesses called police to report that
Mother had hit S.D. while in line at a Department of Motor Vehicles office. The
witnesses reported that Mother struck S.D. multiple times with her fist on the back and
head area and slapped him in the face.
1 All statutory references are to the Welfare and Institutions Code unless otherwise specified.
2 During supervised visitation before the contested jurisdiction/disposition hearing,
Mother engaged in hostile and inappropriate behavior, including threatening to leave the
visitation center with S.D., yelling and "cuss[ing]" at staff at the visitation center, and,
when asked to leave, stating she would not leave unless physically removed by staff or
police. At the contested jurisdiction/disposition hearing in January 2015, the court
sustained the petition, removed S.D. from Mother's custody, and ordered that Mother was
to be provided reasonable visitation. The court's minute order stated: "As long as
Mother remains compliant with court orders, Agency directions and if Mother does not
engage in explosive behaviors with anyone (minor, caregiver, Agency and court) [ ] and
if Mother's visits are appropriate with no corporeal punishment or disrobing of the minor
and no profanity with the minor or anyone else involved in the case, and only age
appropriate language with the minor; [¶] if all conditions are met, then after two months,
monitored unsupervised visits will occur at the Agency's office and if those go well, then
after one month, short, unsupervised visits will begin in a public place. Moving to
unsupervised contact is also contingent on the minor not having adverse reactions to
visitation with Mother. Mother is to act appropriately with all parties, including
representatives of the Agency." (Some capitalization omitted.)
After the jurisdiction/disposition hearing, Mother continued to engage in
inappropriate and explosive behavior during visits with S.D., including pulling S.D.'s
pants down and checking his buttocks, screaming obscenities at Agency social workers
and attempting to throw a punch at a visitation supervisor, discussing the dependency
case in front of S.D., ransacking and throwing food on the floor of a visitation room after
3 social workers left the room with S.D., and threatening to kill herself and return to the
visitation location to "get even." The Agency reported that "four explosive episodes
during visits" in S.D.'s presence had "negatively impacted [S.D.,] as evidenced by him
crying, holding on tightly to [the social worker], and asking to be taken home."
In June 2015, the Agency filed a section 388 petition requesting the court to
change its supervised visitation order to an order suspending visitation until Mother
showed compliance and progress with her case plan and was "able to self[-]regulate
without becoming aggressive and lashing out in the presence of the minor." After a
contested evidentiary hearing, the court granted the petition, finding by clear and
convincing evidence that it was in S.D.'s best interests to suspend Mother's visitation.
Specifically, the court found it was detrimental to S.D. emotionally and physically to
continue visitation with Mother if she was "unable to abide by the court orders previously
put in place." (Capitalization omitted.)
DISCUSSION
As noted, the Agency filed a motion to dismiss Mother's appeal as moot and a
request for judicial notice of the court's October 14, 2015 reporter's transcript and minute
order restoring Mother's supervised visitation. In considering whether an appeal has been
rendered moot by a postappeal hearing, it is appropriate for us to take judicial notice of
documents pertaining to the subsequent hearing. (In re Karen G. (2004) 121 Cal.App.4th
1384, 1390 (Karen G.) [judicial notice taken of minute order from six-month review
hearing in deciding the appeal from jurisdiction and disposition orders was moot].)
4 In opposition to the motion to dismiss, Mother cites In re Zeth S. (2003) 31 Cal.4th
396, 412-413 (Zeth S.) for the proposition that an appellate court's ability to receive
evidence of subsequent events in dependency appeals is limited when the evidence is not
relevant to the issues raised in the trial court, is presented to the appellate court through
unsworn statements of counsel for a nonappealing party, and is presented for the purpose
of preventing reversal of the judgment. In Zeth S., the California Supreme Court
admonished the Court of Appeal "for relying on postjudgment events to reverse orders
terminating parental rights." (Karen G., supra, 121 Cal.App.4th at p. 1389.)
The Karen G. court explained why notwithstanding Zeth S., judicial notice of
postappeal events is appropriate in considering whether an appeal is moot under
circumstances similar to those here. The Supreme Court in Zeth S. stated: "Under the
Court of Appeal's expansive view of the scope of an appeal of an order terminating
parental rights, postjudgment evidence of circumstances involving the minor's present
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Filed 1/8/16 In re S.D. CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re S.D., a Person Coming Under the Juvenile Court Law. D068762 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. CJ1199) Plaintiff and Respondent,
v.
L.D.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Laura J.
Birkmeyer, Judge. Dismissed.
Katherine A. Clark, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent. L.D. (Mother) appeals an order granting a petition filed by the San Diego County
Health and Human Services Agency (the Agency) under Welfare and Institutions Code1
section 388 to suspend Mother's visitation with her four-year-old son S.D. On October
14, 2015, while the appeal was pending, the juvenile court ordered that Mother's
visitation with S.D. resume. Based on the October 14, 2015, visitation order, the Agency
filed a motion to dismiss Mother's appeal as moot and a request for judicial notice of the
court's October 14 minute order and the reporter's transcript of the October 14 hearing.
We grant the Agency's request for judicial notice and motion to dismiss the appeal as
moot.
FACTUAL AND PROCEDURAL BACKGROUND
On November 21, 2014, the Agency filed a petition on behalf of then-three-year-
old S.D. under section 300, subdivision (a), alleging Mother had subjected S.D. to a
substantial risk of serious physical harm when she hit him "on the back and head with her
fist multiple times, and slapped him in the face with her hand." The petition further
alleged that Mother was arrested for child cruelty and had a history of hitting S.D. The
Agency filed the petition and detained S.D. after witnesses called police to report that
Mother had hit S.D. while in line at a Department of Motor Vehicles office. The
witnesses reported that Mother struck S.D. multiple times with her fist on the back and
head area and slapped him in the face.
1 All statutory references are to the Welfare and Institutions Code unless otherwise specified.
2 During supervised visitation before the contested jurisdiction/disposition hearing,
Mother engaged in hostile and inappropriate behavior, including threatening to leave the
visitation center with S.D., yelling and "cuss[ing]" at staff at the visitation center, and,
when asked to leave, stating she would not leave unless physically removed by staff or
police. At the contested jurisdiction/disposition hearing in January 2015, the court
sustained the petition, removed S.D. from Mother's custody, and ordered that Mother was
to be provided reasonable visitation. The court's minute order stated: "As long as
Mother remains compliant with court orders, Agency directions and if Mother does not
engage in explosive behaviors with anyone (minor, caregiver, Agency and court) [ ] and
if Mother's visits are appropriate with no corporeal punishment or disrobing of the minor
and no profanity with the minor or anyone else involved in the case, and only age
appropriate language with the minor; [¶] if all conditions are met, then after two months,
monitored unsupervised visits will occur at the Agency's office and if those go well, then
after one month, short, unsupervised visits will begin in a public place. Moving to
unsupervised contact is also contingent on the minor not having adverse reactions to
visitation with Mother. Mother is to act appropriately with all parties, including
representatives of the Agency." (Some capitalization omitted.)
After the jurisdiction/disposition hearing, Mother continued to engage in
inappropriate and explosive behavior during visits with S.D., including pulling S.D.'s
pants down and checking his buttocks, screaming obscenities at Agency social workers
and attempting to throw a punch at a visitation supervisor, discussing the dependency
case in front of S.D., ransacking and throwing food on the floor of a visitation room after
3 social workers left the room with S.D., and threatening to kill herself and return to the
visitation location to "get even." The Agency reported that "four explosive episodes
during visits" in S.D.'s presence had "negatively impacted [S.D.,] as evidenced by him
crying, holding on tightly to [the social worker], and asking to be taken home."
In June 2015, the Agency filed a section 388 petition requesting the court to
change its supervised visitation order to an order suspending visitation until Mother
showed compliance and progress with her case plan and was "able to self[-]regulate
without becoming aggressive and lashing out in the presence of the minor." After a
contested evidentiary hearing, the court granted the petition, finding by clear and
convincing evidence that it was in S.D.'s best interests to suspend Mother's visitation.
Specifically, the court found it was detrimental to S.D. emotionally and physically to
continue visitation with Mother if she was "unable to abide by the court orders previously
put in place." (Capitalization omitted.)
DISCUSSION
As noted, the Agency filed a motion to dismiss Mother's appeal as moot and a
request for judicial notice of the court's October 14, 2015 reporter's transcript and minute
order restoring Mother's supervised visitation. In considering whether an appeal has been
rendered moot by a postappeal hearing, it is appropriate for us to take judicial notice of
documents pertaining to the subsequent hearing. (In re Karen G. (2004) 121 Cal.App.4th
1384, 1390 (Karen G.) [judicial notice taken of minute order from six-month review
hearing in deciding the appeal from jurisdiction and disposition orders was moot].)
4 In opposition to the motion to dismiss, Mother cites In re Zeth S. (2003) 31 Cal.4th
396, 412-413 (Zeth S.) for the proposition that an appellate court's ability to receive
evidence of subsequent events in dependency appeals is limited when the evidence is not
relevant to the issues raised in the trial court, is presented to the appellate court through
unsworn statements of counsel for a nonappealing party, and is presented for the purpose
of preventing reversal of the judgment. In Zeth S., the California Supreme Court
admonished the Court of Appeal "for relying on postjudgment events to reverse orders
terminating parental rights." (Karen G., supra, 121 Cal.App.4th at p. 1389.)
The Karen G. court explained why notwithstanding Zeth S., judicial notice of
postappeal events is appropriate in considering whether an appeal is moot under
circumstances similar to those here. The Supreme Court in Zeth S. stated: "Under the
Court of Appeal's expansive view of the scope of an appeal of an order terminating
parental rights, postjudgment evidence of circumstances involving the minor's present
out-of-home custody status during the pendency of the appeal would be routinely and
liberally considered. Appointed counsel for the minor in the appeal would be
encouraged, and indeed obligated, to independently investigate such evidence outside the
record, and bring it to the reviewing court's attention for consideration in the appeal.
Basic formalities such as the need for a notice of appeal, and the requirement that issues
raised on appeal first be raised in the trial court, would be dispensed with, and a best
interests standard of review, applied anew from the perspective of the reviewing court,
would be utilized to determine whether the juvenile court's judgment should be reversed
and the case remanded for a new [section] 366.26 hearing, even where the juvenile court
5 itself has committed no legal error in terminating parental rights on the record evidence
before it." (Zeth S., supra, 31 Cal.4th at p. 412.)
The Karen G. court noted the concerns in Zeth S. were not present in Karen G.
First, the appealed order in Karen G. was not an order terminating parental rights.
"Termination orders are 'conclusive and binding' and '[a]fter making the order, the
[juvenile] court shall have no power to set aside, change, or modify it, but nothing in this
section shall be construed to limit the right to appeal the order.' (§ 366.26, subd. (i).) In
contrast, a jurisdictional and dispositional order is subject to modification pursuant to a
proper showing of changed circumstances under section 388, as are all subsequent
orders except a final termination of parental rights. The Legislature has thus recognized
the dynamic and changing nature of dependency proceedings by creating a mechanism
for the trial court to acknowledge changing circumstances." (Karen G., supra, 121
Cal.App.4th at p. 1390, italics added.) Like the jurisdiction/disposition order appealed in
Karen G., the visitation order appealed in the present case is subject to modification for
changed circumstances.
Second, the basis for the requested dismissal in Karen G. was "evidence of which
[an appellate court] can take judicial notice, not the unsworn statements of counsel that so
concerned the Zeth S. court. 'Judicial notice may be taken of . . . [¶] . . . [¶] [r]ecords
. . . of any court of this state . . . .' (Evid.Code, § 452; see also Evid.Code, § 459.)"
(Karen G., supra, 121 Cal.App.4th at p. 1390.) Like the minute order from the six-month
review hearing in Karen G., the October 14, 2015 minute order in question here is a court
record showing the circumstances giving rise to the appeal had changed. As such, the
6 order and related reporter's transcript are properly before this court (ibid.) and we
properly may take judicial notice of them.
" '[A]n 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.' [Citation.] The question of mootness in a dependency case should be
decided on a case-by-case basis . . . ." (In re Dani R. (2001) 89 Cal.App.4th 402, 404-
405.) In light of the juvenile court's restoration of Mother's visitation with S.D., there is
no current controversy regarding visitation and no effectual relief that we can grant
through this appeal. Consequently, the appeal is moot.2
Mother argues that the appeal should not be dismissed as moot because it presents
an issue of public concern. (See Renee S. v. Superior Court (1999) 76 Cal.App.4th 187,
192.) We disagree that the issue raised in Mother's appeal is one of substantial public
interest. The appeal simply presents the question of whether, on this particular record,
there was substantial evidence that visitation would be detrimental.
2 We recognize that the Court of Appeal in In re Dylan T. (1998) 65 Cal.App.4th 765 (Dylan T.) decided that an appeal from an order refusing to allow a mother visitation for no other reason than that she was incarcerated was not mooted by the mother's release from incarceration because the mother's reunification efforts could be terminated after six months and the lack of visitation during a significant portion of that was an error that could infect the outcome of subsequent proceedings. (Id. at p. 770.) Dylan T., which Mother did not cite in her opposition to the motion to dismiss, is inapposite because Mother's reunification efforts could not be terminated after six months and the juvenile court in this case, unlike the court in Dylan T., did not err as a matter of law in suspending visitation. 7 DISPOSITION
The request for judicial notice is granted. The appeal is dismissed as moot.
McDONALD, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McINTYRE, J.