In re A.B., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.B., Defendant and Appellant.
No. B249402
Second Dist., Div. One.
Apr. 1, 2014
1358
Appellant‘s petition for review by the Supreme Court was denied June 11, 2014, S218684.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant.
OPINION
CHANEY, J.—D.B. (mother) appeals from the juvenile court‘s judgments and orders declaring her daughter, A.B., a dependent of the court per
Statement of Facts
Two-year-old A.B. is the daughter of mother and Matthew D. (father).2 Mother and father are married but father recently filed for divorce. Prior to the Los Angeles County Department of Children and Family Services‘s (DCFS) involvement, father had only seen A.B. twice since her birth.
On October 15, 2012, DCFS received a referral that A.B. was developmentally delayed, appeared unhealthy, and was primarily cared for by her maternal grandmother Maria B. (maternal grandmother), who appeared to have mental health issues. An emergency response social worker immediately investigated but could not locate A.B. The social worker spoke with mother, who denied the allegations and refused to cooperate with DCFS. The next day, the social worker contacted father and learned that A.B. could not yet walk and was behind on her immunizations. The social worker also gained access to mother‘s apartment, which was cluttered with 30 boxes filled with paper and trash. A mattress and a mattress pad were on the floor, but no baby crib or any other furniture was found in the apartment.
The next day, mother filed a police report indicating maternal grandmother had abducted A.B. Two days later, mother informed police that maternal
Despite being unable to locate A.B., DCFS filed a juvenile dependency petition on October 23, 2012, alleging mother‘s unsafe and cluttered apartment and father‘s failure to protect A.B. from the apartment‘s hazards endangered A.B.‘s physical health and safety and put her at risk of physical harm (count b-1). At the detention hearing, the juvenile court found there was a prima facie showing of jurisdiction under
DCFS mailed notice of the mediation to mother at the wrong address. Neither mother nor father attended the mediation on December 18, 2012. The juvenile court proceeded to adjudicate the petition over mother‘s counsel‘s objection, finding by a preponderance of evidence that count b-1 was true and declaring A.B. a dependent of the court.
Nine days later, on December 27, 2012, University of Kentucky police officers found A.B. with maternal grandmother, who was wandering around outside on the university‘s Lexington campus. The temperature was below freezing and it was windy, but A.B. had no pants, shirt, shoes, sweater, jacket or gloves. A.B. was examined by a doctor in Kentucky, who determined she met the criteria for failure to thrive based on her low weight and delayed physical development. Kentucky police discovered mother had wired money to maternal grandmother multiple times while A.B. was purportedly missing.
A.B. was returned to California and placed in foster care. Her weight was below the fifth percentile for her age, and her body mass index was only 16 percent. She was developmentally delayed and could not yet walk or talk due to social deprivation. She also suffered from decreased muscle tone, most likely due to lack of physical activity. While detained, she gained weight and her body mass index increased to 31 percent.
On January 14, 2013, DCFS filed a subsequent petition under
The contested adjudication hearing on the subsequent petition was held on April 10, 2013. Mother was out of the country and did not attend.
The juvenile court denied mother‘s motion for reconsideration of the original petition and her motion for a continuance, finding there was no good reason to delay the adjudication. The court found the evidence established A.B. was underfed and undernourished while under mother‘s care. The court dismissed count b-2 but found by a preponderance of evidence that count b-3 was true and ordered that A.B. remain a dependent of the court. The court removed A.B. from mother‘s custody, placed her with father, and awarded mother monitored visits. The court ordered mother to participate in a parenting program and individual counseling and to submit to a psychological assessment if recommended by her counselor. Mother timely appealed.
Discussion
1. Any error in finding jurisdiction under the original petition is moot because substantial evidence supports jurisdiction under the subsequent petition.
Jurisdiction under
Mother asks that we reverse the juvenile court‘s finding of jurisdiction under the original petition because she was not properly noticed and because A.B.‘s whereabouts were unknown when the jurisdictional finding was
“When no effective relief can be granted, an appeal is moot and will be dismissed.” (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315 [94 Cal.Rptr.2d 798].) “On a case-by-case basis, the reviewing court decides whether subsequent events in a dependency case have rendered the appeal moot and whether its decision would affect the outcome of the case in a subsequent proceeding.” (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1055 [81 Cal.Rptr.3d 556].)
In dependency proceedings, the basic pleading device to assert a child falls within the juvenile court‘s jurisdiction is a petition. (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1035 [113 Cal.Rptr.2d 597].) “It may be an original petition (
Here, no effective relief would be provided to mother by reversing jurisdiction under the original petition because jurisdiction was established independently under the subsequent petition on entirely new and independent facts. “In any case in which a minor has been found to be a person described by
Substantial evidence supports the juvenile court‘s finding that mother‘s failure to properly feed A.B. placed her at risk of severe physical and emotional harm. A.B. met the criteria for failure to thrive, her weight was below the fifth percentile for children her age, and her body mass index was just 16 percent. Her ability to walk and talk was developmentally delayed due to lack of opportunity to engage in those activities, and she was diagnosed
Mother argues reversal of the original petition will provide effective relief because had the original petition not been sustained, the subsequent petition would have been scrutinized in a much different light. (See In re Dylan T. (1998) 65 Cal.App.4th 765, 769 [76 Cal.Rptr.2d 684] [“An issue is not moot if the purported error infects the outcome of subsequent proceedings.“].) We disagree. The juvenile court found by a preponderance of evidence that A.B. was underfed and undernourished while in mother‘s care based on A.B.‘s health evaluations after she was found. Because the juvenile court relied exclusively on new facts and circumstances developed after A.B. was found, the original jurisdictional finding did not affect the subsequent finding. The finding of jurisdiction under the original petition is therefore moot.
2. The juvenile court‘s denial of mother‘s continuance request is not grounds for reversal.
Six days prior to the subsequent jurisdictional and dispositional hearing, mother‘s counsel requested a continuance based on outstanding subpoena requests for documents from the Kentucky police and the need to perform further discovery. At the hearing, mother‘s counsel also asked for a continuance because mother was out of the country and unable to appear. The juvenile court denied the request.
On appeal, mother argues the juvenile court abused its discretion in denying her request for a continuance to address the information in the MAT assessment filed on the day of the hearing. Mother contends she should have been granted a continuance to show A.B.‘s poor health was caused exclusively between October 2012 and December 2012, when she had disappeared with maternal grandmother. Mother argues her due process rights were violated by the juvenile court‘s denial of her continuance request because she was denied the opportunity to prepare a defense to the MAT assessment and subpoena the persons responsible for the information therein. In support of this argument, mother cites to portions of the record in which her counsel objected to admission of the MAT assessment.3
Nothing in the record indicates mother‘s counsel requested a continuance based on the filing of the interim review report or the MAT assessment on the day of the hearing. Although mother‘s counsel objected to the admission of the MAT assessment on hearsay grounds, at no point during the discussion did counsel request a continuance to prepare a defense to the MAT assessment or to subpoena and examine any declarants therein. Any discussion of a continuance request during the hearing focused solely on mother‘s absence and the outstanding subpoena request to Kentucky police. Because mother‘s counsel never requested a continuance to address the MAT assessment, we consider the argument forfeited. (See In re Richard K. (1994) 25 Cal.App.4th 580, 590 [30 Cal.Rptr.2d 575] [“As a general rule, a party is precluded from urging on appeal any point not raised in the trial court.“]; In re Cheryl E. (1984) 161 Cal.App.3d 587, 603 [207 Cal.Rptr. 728] [“A party on appeal cannot successfully complain because the trial court failed to do something which it was not asked to do. . . .“].)
Even if we were to consider mother‘s claim, we would reject it. We will reverse an order denying a continuance only upon a showing of abuse of discretion. (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187 [2 Cal.Rptr.2d 569].) A juvenile court abuses its discretion if its decision is arbitrary, capricious or patently absurd. (In re Tamneisha S. (1997) 58 Cal.App.4th 798, 806 [68 Cal.Rptr.2d 259].) The doctors’ findings on A.B.‘s poor health were first provided in a jurisdiction/disposition report on February 15, 2013. Between February and April 2013, mother‘s counsel had ample time to determine whether A.B.‘s poor health could have occurred solely within the time she was out of mother‘s care and had no need to consult Kentucky police or physicians to make such a determination. The juvenile court was therefore well within its discretion to deny mother‘s request for a continuance.
The judgment and orders are affirmed.
Rothschild, Acting P. J., and Miller, J.,* concurred.
On April 30, 2014, the opinion was modified to read as printed above. Appellant‘s petition for review by the Supreme Court was denied June 11, 2014, S218684.
*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.