In re Brandon F. CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. EJ3374C
- Trial judge
- Laura J. Birkmeyer
- Outcome
- dismissed — Dismissed.
- Area
- dependency
- Panel
- Alex C. McDonald (author), Gilbert Nares, Patricia D. Benke
Analysis
The trial court summarily denied Tony M.'s Welfare and Institutions Code section 388 petition to invalidate previous dependency orders and return the case to the dispositional phase. The Court of Appeal dismissed the appeal as moot because a subsequent order terminating Tony's parental rights had become final, rendering effective relief impossible.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Summary denial of Welfare and Institutions Code section 388 petition“He contends the court was required to consider section 361.2 and to grant custody to him absent a showing of detriment, the court erred by concluding he is not Brandon's father under Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.), and it erred by denying his petition without a hearing.” | unclear | not reached | unsure The appellate court did not review the merits of the trial court's ruling because it dismissed the appeal as moot. The court determined that the final termination of parental rights order precluded any effective relief, and the issues raised were not of first impression or continuing public interest. Therefore, the correctness of the trial court's application of law to the section 388 petition was not evaluated. |
Authorities
- relied: In re Ruby T. (1986) 181 Cal.App.3d 1201 — When an appeal has become moot, the reviewing court must dismiss the appeal.
- relied: In re Jessica K. (2000) 79 Cal.App.4th 1313 — An appeal becomes moot when, through no fault of the respondent, the occurrence of an event renders it impossible for the appellate court to grant the appellant effective relief.
- relied: In re Albert G. (2003) 113 Cal.App.4th 132 — A court cannot grant effective relief when the order terminating parental rights is final.
- relied: Adoption of Kelsey S. (1992) 1 Cal.4th 816 — Established law regarding the qualifications of a Kelsey S. father, which the court noted was well settled and not an issue of first impression.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the mootness doctrine to dismiss the appeal. The court properly identified that the final termination of parental rights precluded effective relief and correctly noted that the legal issues raised were well-settled, thus not warranting review under the public interest exception.
How this analysis was made · dispute it
unusual dispositionThe juvenile court summarily denied Tony M.'s Welfare and Institutions Code section 388 petition seeking to set aside prior dependency orders and obtain custody of his son Brandon, and declined to designate him a Kelsey S. father; it then terminated parental rights at a later section 366.26 hearing that Tony did not appeal. The Court of Appeal took judicial notice of the final termination order and dismissed Tony's appeal from the section 388 denial as moot without reaching the merits.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Summary denial of father's section 388 petition without an evidentiary hearing“It summarily denied Tony's section 388 petition, denied his request to be designated a Kelsey S. father and set a section 366.26 hearing.” | unclear | not reached | agree with court The appellate court did not evaluate whether the petition made a prima facie showing warranting a hearing; it held that the unappealed, now-final order terminating parental rights made any relief on the section 388 order impossible, so the merits were never examined. Dismissal for mootness is consistent with In re Jessica K. and In re Albert G., which hold that a final termination order forecloses effective relief on earlier orders. |
Denial of father's request for Kelsey S. presumed-father status and refusal to apply section 361.2 placement analysis“he contends the court was required to consider section 361.2 and to grant custody to him absent a showing of detriment, the court erred by concluding he is not Brandon's father under Adoption of Kelsey S.” | unclear | not reached | agree with court Because the termination of parental rights became final when Tony did not appeal the August 3, 2012 order, reversing the Kelsey S. or section 361.2 determinations could not restore his parental rights or alter Brandon's placement. The court also reasonably declined the discretionary exception for issues of continuing public interest, noting Kelsey S. and section 388 standards are settled. |
Authorities
- relied: In re Ruby T. (1986) 181 Cal.App.3d 1201 — When an appeal has become moot, the reviewing court must dismiss it.
- relied: In re Jessica K. (2000) 79 Cal.App.4th 1313 — An appeal is moot when, through no fault of respondent, an event occurs that makes it impossible for the appellate court to grant effective relief; a final termination order moots an appeal from an earlier section 388 denial.
- relied: In re Albert G. (2003) 113 Cal.App.4th 132 — Once an order terminating parental rights is final, an appeal from an earlier order cannot yield effective relief.
- relied: Adoption of Kelsey S. (1992) 1 Cal.4th 816 — A biological father who promptly comes forward and demonstrates full commitment to parental responsibilities may be entitled to the constitutional protections of a presumed father; cited only to describe the status appellant sought.
The appellate opinion: sound — The court correctly applied settled mootness doctrine: because the father never appealed the order terminating parental rights, that order is final and no ruling on the section 388 denial could change his legal relationship to the child. The opinion is brief but addresses the public-interest exception, and nothing suggests a misreading of the law.
Opinion
Filed 3/1/13 In re Brandon F. 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 BRANDON F., a Person Coming Under the Juvenile Court Law. D062317 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. EJ3374C) Plaintiff and Respondent, v. TONY M., Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Laura J.
Birkmeyer, Judge. Dismissed.
Tony M. appeals an order summarily denying his Welfare and Institutions Code1 section 388 petition in which he requested the court invalidate all previous dependency orders regarding his son, Brandon F., and return the case to the dispositional phase. He contends the court was required to consider section 361.2 and to grant custody to him absent a showing of 1 Statutory references are to the Welfare and Institutions Code. detriment, the court erred by concluding he is not Brandon's father under Adoption of Kelsey S.
(1992) 1 Cal.4th 816 (Kelsey S.), and it erred by denying his petition without a hearing.
Because a subsequent order terminating Tony's parental rights is now final, we dismiss the appeal as moot.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2011, two-month-old Brandon and his siblings were taken into protective custody when their mother, S.D., left them with a relative without providing food or authorization for education or medical care. At the detention hearing, S.D. stated she did not know the identity or whereabouts of Brandon's father.
The court declared Brandon a dependent of the court, removed him from S.D.'s care, ordered him placed in foster care and ordered reunification services for S.D.
At a hearing on January 11, 2012, the court terminated S.D.'s services and set a section 366.26 hearing. S.D. then identified Tony as Brandon's father, and the court located him in federal prison. His proposed release date was September 29.
A paternity test showed Tony is Brandon's biological father. He filed a section 388 petition, said he wanted custody and requested the court grant him status as Brandon's father under Kelsey S.
At the hearing on July 5, 2012, the court entered a judgment of paternity. It summarily denied Tony's section 388 petition, denied his request to be designated a Kelsey S. father and set a section 366.26 hearing. Tony appeals.
2 At the section 366.26 hearing on August 3, 2012, the court terminated parental rights.2 Tony did not appeal this order.
DISCUSSION
When an appeal has become moot the reviewing court must dismiss the appeal. (In re Ruby T. (1986) 181 Cal.App.3d 1201, 1204.) An appeal becomes moot when, through no fault of the respondent, the occurrence of an event renders it impossible for the appellate court to grant the appellant effective relief. (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316.)
The order terminating parental rights is now final. Thus, this court cannot grant Tony any effective relief. (See In re Albert G. (2003) 113 Cal.App.4th 132, 134-135.) Moreover, the issues presented in the appeal regarding his section 388 petition and the qualifications of a Kelsey S. father do not qualify as issues of first impression or continuing public interest because they are well settled in established law. The appeal is dismissed as moot.
DISPOSITION
The appeal is dismissed.
MCDONALD, J.
WE CONCUR:
BENKE, Acting P. J.
NARES, J.
2 We take judicial notice of the August 3, 2012, juvenile court order terminating parental rights. 3
Cites, in this corpus
- In Re Albert G. B162016 · 2003-11-07
- In Re Jessica K. B132583 · 2000-04-18
- Steven A. v. Rickie M. S014775 · 1992-02-20
- In Re Ruby T. H000526 · 1986-05-06