In re J.D. CA1/3 ( 2021 )

Filed 10/6/21 In re J.D. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re J.D., a Person Coming Under
the Juvenile Court Law.
CONTRA COSTA COUNTY
CHILDREN and FAMILY
SERVICES BUREAU, A161418
Plaintiff and Respondent,
v. (Contra Costa County
Super. Ct. No. J1900524)
A.D.,
Defendant and Appellant.
A.D. (father) appeals from an October 7, 2020 juvenile court order that
summarily denied his Welfare and Institutions Code1 section 388 petition for
six months of reunification services and in-person visits with his son J.D.
The sole contention on appeal is that the section 388 petition contained
sufficient prima facie evidence to warrant an evidentiary hearing. The
appeal is dismissed as it has been rendered moot due to subsequent
proceedings in the juvenile court.
1 All undesignated statutory references are to the Welfare and
Institutions Code.
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FACTUAL AND PROCEDURAL BACKGROUND
In May 2019, respondent Contra Costa County Children and Family
Services Bureau (the agency) removed then six-year-old J.D. from the care of
his parents, who co-parented the child along with the child’s paternal cousins;
mother is the legal guardian of the cousins, two brothers then aged six and
twelve. All of the children lived primarily with father and on weekends J.D.
stayed (and the cousins periodically stayed) with mother. The agency’s
section 300 petition alleged both parents had put J.D. at substantial risk of
physical harm and neglect. The allegations were based on father’s use of
corporal punishment to discipline the cousins, causing physical injuries, and
on mother’s acquiescence to J.D. living with father while he inflicted such
corporal punishment. Following the agency’s intervention, father was
incarcerated on felony charges for aggravated mayhem, torture, and child
cruelty based on his physical abuse of the cousins.
On August 22, 2019, the juvenile court sustained the petition, finding
J.D. a person described in section 300, subdivision (b) (failure to protect) and
finding true the allegations as to both parents. At the dispositional hearing
on October 16, 2019, the juvenile court declared J.D. a dependent of the court
after finding, by clear and convincing evidence, that the child’s physical or
emotional well-being was or would be in substantial danger if returned to his
parents’ physical custody. The juvenile court granted mother reunification
services including supervised visits but denied the same to father.
The court ruled that, pursuant to section 361.5(b)(10), father would not
be granted reunification services because there was clear and convincing
evidence that in a prior dependency concerning J.D.’s older paternal half-
sibling father had failed to reunify with that child after being offered
reunification services to address his physical abuse of that child, and father
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had not subsequently made a reasonable effort to treat the problem that led
to removal of the half-sibling from his care. The court also ruled father would
not be allowed to contact or visit J.D. as such contact and visits would be
detrimental to the child.
In April 2020 father’s criminal charges were resolved when he was
placed on formal probation for five years. He was later released from custody
on September 1, 2020. By that time, mother had made significant progress in
reunifying with J.D.; she had completed her case plan and continued to
participate in services. Her supervised visits with J.D. had progressed to
unsupervised visits, with the court allowing a trial unsupervised 30-day
consecutive overnight visit, later extended for an additional 60 days.
On September 21, 2020, while the child was on the unsupervised
extended overnight visit with mother, father filed a Judicial Council form
section 388 petition, verified only by his counsel, requesting the court to
grant father six months of reunification services and in-person visits with
J.D. In describing what had happened since the denial of reunification
services that “might change the judge’s mind,” trial counsel stated: “Father is
out of custody and has taken responsibility for his actions. While in custody,
he completed a Triple P positive parenting class, an anger management class,
and took domestic violence classes through the Deuce program. [He] is
remorseful and recognizes he need[s] help raising his son and his nephews.”
In explaining why the proposed change of order “would . . . be better” for J.D.,
trial counsel stated: “Father and [J.D.] have a close bond. Father was the
primary caregiver for [J.D.]. Father taught [J.D.] how to read, write, and ride
his bike. Father and [J.D.] enjoy playing basketball and video games
together. Father is willing to participate in any an[d] all services the Court
orders including, continuing parenting classes and therapy. Father would
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like the Court to know he loves [J.D.] more than anything and will do
anything for him.” On October 7, 2020, the court summarily denied father’s
section 388 request because: (1) the petition did not state new evidence or a
change of circumstances; and (2) the proposed change of order would not
promote the child’s best interest.
At the 18-month review held on November 5, 2020, the juvenile court
returned J.D. to the physical custody of his mother and directed the agency to
provide family maintenance services. Father could not have any in-person
visits but could send letters to the child through the social worker and subject
to an initial review by the child’s therapist. That same day, father timely
appealed the October 7, 2020 order now under review.
Thereafter, and while this appeal was pending, the juvenile court held
further proceedings in the dependency, of which we now take judicial notice.2
On April 29, 2021, following a family maintenance review hearing, the
juvenile court adopted, over father’s objection, the agency’s findings and
recommendations: (1) the court found, by clear and convincing evidence, that
J.D.’s return to father’s custody would create a substantial risk of detriment
to the child’s safety, protection or physical or emotional well-being; (2) it
found father’s contact or visits would be detrimental to J.D.; (3) it granted
2 By our order of July 22, 2021, we deferred consideration of the agency’s
request for judicial notice of certain documents filed in the juvenile court
since the October 7, 2020 order, including an April 29, 2021 custody order
and final judgment (one document), as well as the juvenile court’s register of
actions, and we allowed father to file his response to the request at the same
time as his reply brief. We grant the agency’s unopposed request to take
judicial notice of the submitted juvenile court records. (Evid. Code, § 452,
subd. (d) [“[j]udicial notice may be taken of . . . [¶] . . . [¶] [r]ecords of . . . any
court of this state . . . .”]; see In re Karen G. (2004) 121 Cal.App.4th 1388,
1390 [“[i]t is not uncommon for an appellate court to take judicial notice of
subsequent proceedings in the juvenile court and find the appeal has been
rendered moot;” “[t]hat is the case here”].)
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mother sole physical and legal custody of J.D.; (4) it ordered that father have
no contact or visitation with J.D.; and (5) it vacated the dependency and
dismissed the petition as J.D. was no longer a person described in section
300, subdivision (b). The court also filed a Judicial Council form custody
order and final judgment (one document), which included its custody and
visitation orders, and specifically informed the parties that the juvenile court
had terminated jurisdiction over J.D. and “[a]ll requests for modification or
termination” of the juvenile court orders “must be brought in the family court
case” in which the juvenile court orders were filed. Father filed no appeal
from the Judicial Council form custody order and final judgment, which has
been re-filed and assigned a case number in Family Court.
DISCUSSION
It is well settled that an order or judgment “terminating juvenile court
jurisdiction generally renders an appeal from an earlier order moot. . . . ‘[T]he
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 Rashad D. (2021) 63 Cal.App.5th 156, 163 (Rashad D.).)
On appeal, father’s sole contention is that the juvenile court should
have held an evidentiary hearing on his section 388 petition. However, there
is no effective relief available even if there were merit to his contention.
Absent reversal of the final judgment “terminating [the] dependency, the
juvenile court has no jurisdiction to conduct further hearings in the now-
closed case.” (Rashad D., supra, 63 Cal.App.5th at p. 164.) Because father
has not appealed the final judgment, it is “not now before us or otherwise
subject to appellate review. And because the juvenile court terminated its
jurisdiction over [J.D.] and that termination is final, a remand for further
proceedings in the juvenile court would be meaningless.” (Id. at pp. 164-165.)
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While we may consider moot issues, no exception to the mootness doctrine
requires our review of the juvenile court’s fact-driven discretionary decision
to summarily deny father’s section 388 petition. (See In re David B. (2017) 12
Cal.App.5th 633, 654 [because the juvenile court could no longer assert
jurisdiction over [David B.] thus rendering the appeal moot, appellate court
declined to exercise its discretion “to address the fact-specific questions
whether [David B.] was described by section 300, and whether the juvenile
court’s determination on that point is supported by substantial evidence”].)
We note the dismissal of the appeal does not leave father without a
remedy. Like the situation where a parent seeks section 388 relief to modify
an order during a dependency (In re J.M. (2020) 50 Cal.App.5th 833, 845-
846), any custody or visitation order issued at the time the juvenile court
terminates its jurisdiction may be modified in a Family Court proceeding
(Fam. Code, § 3021) “if [a parent] can demonstrate ‘there has been a
significant change of circumstances since the juvenile court issued the order
and modification of the order is in the best interests of the child’ [(Wel. &
Inst. Code, § 302, subd. (d)).]” (In re Rashad D., supra, 65 Cal.App.5th at p.
165, fn. 7.)
DISPOSITION
The appeal is dismissed.
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_________________________
Petrou, J.
WE CONCUR:
_________________________
Tucher, P.J.
_________________________
Chou, J.*
* Judge of the Superior Court of San Mateo County, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
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