Filed 6/5/13 In re D.A. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re D.A. et al., Persons Coming Under the
Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES
AGENCY,
G047725
Plaintiff and Respondent,
(Super. Ct. Nos. DP019048,
v. DP019397 & DP021177)
S.A., OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Deborah
Servino, Judge. Dismissed.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant
and Appellant.
Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, Deputy
County Counsel, for Plaintiff and Respondent.
S.A. (Mother) appeals from the order made at the Welfare and Institutions
Code section 366.26 hearing (hereafter the .26 hearing)1 terminating her parental rights to
her three children: D.A., X.I., and G.I.2 X.I. and G.I. were placed with a paternal aunt
who wanted to adopt them. Mother contends the juvenile court abused its discretion by
denying a motion to continue the .26 hearing, originally made by the Orange County
Social Services Agency (SSA), when it learned the agency conducting the paternal aunt’s
adoption home study had declined to proceed with it. SSA requested additional time to
further assess whether the paternal aunt’s home study could be approved. Mother also
contends the lack of an approved home study established the paternal aunt was unable to
adopt the children, but because the paternal aunt could provide them with a stable and
permanent home and removal of the children from her care would be detrimental, the
juvenile court erred by not applying the relative caregiver exception to termination of
parental rights. (§ 366.26, subd. (c)(A).)
SSA has filed a motion to dismiss the appeal as moot accompanied by a
motion to take additional evidence and augment the record on appeal with a
postjudgment status review report and the juvenile court’s minute order approving SSA’s
recommendations contained in the report. SSA reported the paternal aunt’s adoption
home study has been completed and approved, and her adoption of the children is ready
to be finalized. Mother opposes SSA’s motions. We conclude augmentation of the
record on appeal is appropriate, and in view of the subsequent events, Mother’s appeal is
moot. Accordingly, we dismiss the appeal.
1 All further statutory references are to the Welfare and Institutions Code,
unless otherwise indicated.
2 The children’s fathers do not appeal, and Mother raises no issues pertaining
to termination of her parental rights to D.A.
2
FACTS AND PROCEDURE
This dependency proceeding began in 2009, when then four and one-half
year old D.A. (half-sibling of X.I. and G.I.) was taken into protective custody due to
allegations of severe physical abuse by Mother and her husband, M.I. (Father). In
December 2009, Mother pled no contest to an amended petition under section 300,
subdivisions (a) [serious physical harm] and (b) [failure to protect], and D.A. was
declared a dependent child. He was removed from Mother’s custody and placed in a
foster home. Reunification services were ordered for Mother. 3
X.I. was born on January 27, 2010, and due to the allegations of serious
physical abuse of D.A., a petition was filed under section 300, subdivisions (b) [failure to
protect], and (j) [abuse of a sibling]. She was detained and placed in the paternal aunt’s
home in February, but in March, the paternal aunt asked that X.I. be removed from her
home (largely due to conflicts with Father but also because of financial problems relating
to providing child care), and X.I. was moved to a foster home. In April 2010, Mother and
Father pled no contest to X.I.’s petition. On May 3, 2010, X.I. was declared a dependent
child. She was removed from the parents’ custody and reunification services were
ordered.
By June 2010, Mother had made some progress in her reunification services
with D.A., but he did not want to return to her care. Reunification services continued for
D.A. Mother and Father continued to participate in services, and by September 2010,
were having unmonitored visits with X.I. Reunification services were continued for X.I.
G.I. was born on May 2, 2011. She was not detained, but a dependency
petition was filed based on the previously sustained allegations in D.A.’s and X.I.’s
3 D.A.’s father’s whereabouts were unknown for most of the dependency,
other than that he had moved to Guam. Shortly before the .26 hearing, D.A.’s father
contacted SSA indicating he wanted custody of his son. He was eventually granted
presumed father status, but his section 388 petition to modify the referral order was
denied. His parental rights to D.A., as well as Mother’s, were terminated.
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petitions. On June 9, 2011, the parents pled no contest to G.I.’s petition. The juvenile
court declared G.I. a dependent child and ordered family maintenance services.
On June 1, 2011, X.I. was placed with her parents for a 60-day trial visit,
and on July 27, 2011, the juvenile court ordered her returned to the parents under a plan
of family maintenance. By early December 2011, D.A. was having overnight visits with
Mother and SSA was moving towards placing him on a 60-day visit, and SSA was
recommending G.I.’s case be closed. The situation then abruptly changed.
On December 2, 2011, SSA filed a section 387 supplemental petition
alleging physical abuse of X.I. (now almost two years old) while in her parents’ care.
The family had moved to Los Angeles County, and in response to a child abuse report,
the Los Angeles County Children’s Services social worker found X.I. covered with
bruises, scabs, and scratches in multiple stages of healing all over her body. Mother
could not satisfactorily explain the extensive injuries. Six-month-old G.I. had ringworm
on her legs, eczema on her face, and a bruise on her lower back. On December 5, 2011,
the juvenile court detained both girls and gave the parents monitored visitation. D.A.’s
60-day trial visit was cancelled.
The girls were placed in the paternal aunt’s home following a positive
December 11, 2011, home evaluation. They have remained there throughout the
remainder of these dependency proceedings and have thrived in her care. The paternal
aunt reported Father had told her even if he and Mother got the girls back, they would
return them to the paternal aunt because they were not safe in the parents’ home. SSA
recommended that neither parent receive further reunification services for the girls.
Following a contested jurisdictional hearing, on March 5, 2012, the court
found the allegations of the section 387 petition true and set a contested dispositional
hearing. On that same date, the court terminated reunification services as to D.A. and set
a .26 hearing. Following a contested dispositional hearing in late March 2012, the
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juvenile court ordered X.I. and G.I. removed from the parents’ custody, declined further
reunification services, and set a .26 hearing.
In the reports for the children’s .26 hearings, SSA recommended parental
rights be terminated and the children freed for adoption. X.I. and G.I. continued to thrive
in the paternal aunt’s home, and SSA opined both girls were adoptable. The paternal
aunt was committed to adopting X.I. and G.I. They referred to her as “‘mama,’” sought
her out to meet their needs, and responded to her directives. During visits with the
parents, which were monitored by the paternal aunt, the children turned to the paternal
aunt for comfort and attention, not the parents. Both children had “made great strides in
the current prospective adoptive placement, which can be attributed to the consistent
limit-setting, structure and unconditional love and understanding.”
In its July 19, 2012, report for the .26 hearing, SSA explained the paternal
aunt had been referred to the Children’s Bureau in April 2012 for an adoption home
study. The preliminary assessment was good. The paternal aunt had acknowledged
however that she had seen a therapist for a number of years “to address symptoms of
depression caused by resentment toward her father,” she was treated for depression by a
psychiatrist in 2003 or 2004, and her primary care physician had prescribed medication to
alleviate the symptoms of depression. The Children’s Bureau wanted some additional
time for its assessment. The .26 hearing was continued to September 19, and then to
October 25.
In its October 25, 2012, report for the .26 hearing, SSA requested a 60-day
continuance. While the paternal aunt’s level of cooperation in the home study had been
excellent, information received from her psychiatrist on October 19, 2012, “regarding the
extent and recentness of her mental health history” had caused the Children’s Bureau to
decline to complete the adoption home study, and it sent the referral back to SSA. SSA
requested the continuance to “further assess whether or not the [paternal aunt’s] Adoptive
Homestudy can be approved.” Minors’ counsel opposed the request. On the same day,
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Mother sought a short continuance of the permanency hearing because one of her
witnesses was unavailable. The court denied SSA’s request but granted Mother’s request
and continued the hearing to November 1, 2012.
At the continued .26 hearing, Mother orally “renew[ed]” SSA’s motion to
continue the .26 hearing as to X.I. and G.I. so the paternal aunt’s home study could be
completed. Minors’ counsel objected and SSA did not renew its continuance. The court
denied Mother’s motion for a continuance.
At the conclusion of the contested .26 hearing, SSA and minors’ counsel
both argued the girls were adoptable, and that there was not clear and convincing
evidence the paternal aunt would not be able to adopt or that it would be detrimental for
the girls to be removed from her care if she were unable to do so. Mother’s counsel
argued the relative caretaker exception to termination of parental rights should be applied
because the paternal aunt was a relative who was unable to adopt, but it was a stable
placement, and it would be detrimental to remove the girls from the paternal aunt’s home.
The juvenile court found the children were adoptable and none of the
exceptions to termination of parental rights applied. The juvenile court terminated
parental rights as to all three children. Mother appeals.
DISCUSSION
Mother contends the juvenile court abused its discretion by not granting a
continuance of the .26 hearing “for the length of time necessary to see if [the paternal
aunt] could be approved to adopt[.]” She argues there was “a very real possibility that
[the paternal aunt] will be unable to adopt” the girls because of the lack of an approved
adoption home study. Moreover, Mother argues, if the paternal aunt cannot adopt then
the relative caretaker exception to termination of parental rights contained in section
366.26, subdivision (c)(1)(A),4 should apply. In the alternative, Mother contends the
4 Section 366.26, subdivision (c)(1)(A), requires the juvenile court to
terminate parental rights if a child is likely to be adopted unless “[t]he child is living with
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juvenile court erred by not applying the relative caretaker exception because the
uncontroverted evidence was the paternal aunt was unable to adopt the girls but was
willing to provide them a stable and permanent home, and their removal from her custody
would be detrimental to their emotional well being.
After this appeal was submitted, SSA moved to vacate submission so it
could file a motion to take additional evidence and augment the record on appeal (Code
Civ. Proc., § 909; Cal. Rules of Court, rules 8.155 & 8.252(c)), and a motion to dismiss
the appeal as moot. We vacated submission, allowed SSA to file the motions, and
allowed Mother to file opposition.
SSA’s motions ask us to augment the record with: (1) the SSA status
review report dated May 1, 2013, prepared for the permanency review hearing; and
(2) the juvenile court’s minute order from the May 1, 2013, periodic permanency review
hearing. In the status review report, SSA reports the paternal aunt’s adoption home study
has been completed and approved, X.I. and G.I. continue to be placed in the paternal
aunt’s home, the paternal aunt remains committed to adopting the girls, and she has been
granted de facto parent standing. SSA reported the paternal aunt’s adoption signing will
be completed within the next 30 days and once signing is completed, “the only thing that
will be holding up the [girls’ adoption by the paternal aunt] will be[] the resolution of
[this] current appeal.” The minute order states SSA’s status report was submitted and
filed with the court, the court read and accepted the report into evidence, and the court
adopted the recommendations of SSA in accordance with the report. SSA contends these
recent events render Mother’s appeal moot as there is no effective relief we can grant her.
a relative who is unable or unwilling to adopt the child because of circumstances that do
not include an unwillingness to accept legal or financial responsibility for the child, but
who is willing and capable of providing the child with a stable and permanent
environment through legal guardianship, and the removal of the child from the custody of
his or her relative would be detrimental to the emotional well-being of the child.”
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“‘[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.)
We grant SSA’s motion to take additional evidence and augment the record
because they demonstrate the appeal is moot and must be dismissed. Although appellate
courts rarely accept postjudgment evidence or evidence that is developed after the
challenged ruling is made (see In re Zeth S. (2003) 31 Cal.4th 396, 405, 413-414), our
augmentation of the record in this case does not contravene the Zeth S. rule. First, the
postjudgment evidence consists of records of the juvenile court, not an unsworn
statement of counsel. (Id. at p. 407.) Second, the evidence is not offered to obtain a
reversal (In re Josiah Z. (2005) 36 Cal.4th 664, 676 (Josiah Z.)), and taking the evidence
will not overturn a judgment terminating parental rights, nor will it impair “the juvenile
law’s purpose of ‘expediting the proceedings and promoting the finality of the juvenile
court’s orders and judgment.’ [Citation.]” (In re Salvador M. (2005) 133 Cal.App.4th
1415, 1421 (Salvador M.).) And third, the SSA report and minute order relate solely to
the question whether the appeal should be dismissed as moot, not to the merits of the
appeal or the correctness of the judgment. (Josiah Z., supra, 36 Cal.4th at p. 676.)
Salvador M., supra, 133 Cal.App.4th 1415, is instructive. In Salvador M.,
the mother challenged the adoptability finding for siblings who were placed with the
maternal grandparents, arguing that because there was not yet an approved home study,
the grandparents might not be allowed to adopt the children. (Id. at p. 1419.) If the
grandparents were not approved, then there could be an interference with the sibling
bonds that would warrant applying the sibling bond exception to termination of parental
rights. (Ibid. See former § 366.26, subd. (c)(1)(E), now § 366.26, subd. (c)(1)(B)(v).)
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The appellate court granted the social services agency’s motion to augment the record
with a postjudgment addendum report indicating the grandmother’s adoption home study
was completed and approved because the evidence “removed any uncertainty” about the
grandparents’ ability to adopt and rendered the mother’s appellate claim moot. (Salvador
M., supra, 133 Cal.App.4th at p. 1422.)
Similarly in In re B.D. (2008) 159 Cal.App.4th 1218 (B.D.), counsel for
B.D., one of a set of five siblings, had asked the court to continue the section 366.26
hearing for 180 days pursuant to section 366.26, subdivision (c)(3), which allows the
court to continue the .26 hearing if the child is adoptable but difficult to place and there is
no identified or prospective adoptive parent. The juvenile court denied the continuance,
found the siblings were likely to be adopted, and terminated parental rights. (B.D., supra,
159 Cal.App.4th at pp. 1226-1227.) On B.D.’s appeal, the appellate court augmented the
record to include postjudgment social services agency addendum reports and juvenile
court minute orders showing an adoptive home had been found that would take all the
siblings, the juvenile court had approved their placement in the home, and if that home
fell through, there were 10 other homes identified. (Id. at p. 1240, fn. 8.) “[T]he
postjudgment evidence shows the issue of adoptability has been rendered moot by the
children’s subsequent placement in an approved adoptive home, and any procedural error
was harmless. . . . In view of the children’s placement together in an approved adoptive
home, we see no reason to further delay the proceedings. [Citation.]” (Id. at
pp. 1240-1241, fn. omitted.)
Mother opposes SSA’s motion to take additional evidence and augment the
record, and she opposes SSA’s motion to dismiss the appeal.5 She attempts to distinguish
5 Mother also objected to our vacating submission to allow SSA to file the
motions because “[w]ith any diligence, [County Counsel] could have submitted this
‘evidence’ prior to submission [of the appeal].” Because neither party requested oral
argument on this appeal, oral argument was deemed waived, and the appeal was
submitted on April 18, 2013. Mother argued that if SSA had not waived oral argument,
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Salvador M., supra, 133 Cal.App.4th 1415, by pointing out it concerned the sibling
benefit exception, not the relative caretaker exception. That is a distinction without
meaning. Mother also suggests Salvador supports her position on appeal (i.e., that a
continuance should have been granted), because the Salvador court admonished the
juvenile court it would have been “the better procedure” for it to have continued the
.26 hearing until the grandmother’s adoptive home study could be completed. (Id. at
p. 1422.) But that observation had nothing to do with whether the appellate record could
be augmented or with whether the subsequent approval of the grandmother’s home study
rendered the appeal moot.
Mother also asserts the new evidence does not necessarily render her appeal
moot. Mother concedes the approval of the paternal aunt’s home study renders the issue
regarding applicability of the relative caretaker exception moot. But she argues it does
not render moot her contention the court abused its discretion by denying a continuance
so the home study could be completed. She argues that if we dismiss the appeal, we are
impliedly affirming the juvenile court’s “erroneous judgment” and there is an issue of
public interest as to whether the juvenile court must grant a continuance to assess a
relative caretaker’s ability to adopt before finding the relative caretaker exception does
not apply.
We reject Mother’s contentions. Even were we to agree the juvenile court
should have granted the motion for a continuance to permit the paternal aunt’s home
study to be completed, there simply is no practical relief that can now be granted. We
cannot fathom what could possibly be gained by entertaining Mother’s appeal (other than
vindication of Mother’s argument) in view of the subsequent approval of the paternal
the matter would not have been already under submission when SSA’s report was filed
and the juvenile court ruled on May 1, 2013, and SSA would not have needed to ask for
submission to be vacated. Inasmuch as we did vacate submission and did permit SSA to
file the motions, we need not address Mother’s absurd objection.
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aunt’s home study and pending finalization of the children’s adoption by her. We see no
reason to further delay those proceedings.
DISPOSITION
Respondent’s motions to take additional evidence and augment the record
on appeal and to dismiss the appeal are granted. The appeal is dismissed.
O’LEARY, P. J.
WE CONCUR:
RYLAARSDAM, J.
BEDSWORTH, J.
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