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In re Anna S.

January 13, 2010

IN RE ANNA S., A PERSON COMING UNDER THE JUVENILE COURT LAW.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
ANGELINA S., DEFENDANT AND APPELLANT.



APPEAL from orders of the Superior Court of San Diego County, Gary M. Bubis, Judge. Dismissed as moot. (Super. Ct. No. SJ10893D).

The opinion of the court was delivered by: Benke, Acting P. J.

CERTIFIED FOR PUBLICATION

Angelina S. appeals an order detaining her daughter Anna under Welfare and Institutions Code*fn1 section 388. We dismiss the appeal as moot.

INTRODUCTION

The appellant parent appeals from a detention order that was made after this court filed an opinion reversing an order placing the child with the parent but before the remittitur issued. The parent contends the trial court improperly relied on the non-final opinion*fn2 to detain the child. At issue is whether a trial court may rely on a non-final appellate opinion to shape the outcome of ongoing dependency proceedings in the same case.

As we discuss, post, we are concerned about the use, in whole or in part, of a non-final opinion, based on a months-old record, to influence the outcome of a matter that should have been decided on evidence of the family's current circumstances and child's needs at the appropriately noticed hearing. Although the issues concerning the validity of the detention order have been rendered moot by the issuance of the remittitur in this court's earlier unpublished opinion (In re Anna S. (Mar. 13, 2009, D053800) (Anna S.)), in view of the importance and ongoing nature of dependency proceedings and the likelihood this issue may again arise in this or other cases, we exercise our discretion to review this issue.

During the pendency of an appeal from an order that awards, changes or otherwise affects the custody of a dependent child, the trial court retains jurisdiction to make subsequent findings and orders in the dependency proceedings. After the appellate opinion is filed, the parties may seek rehearing or file a petition for review, and appellate jurisdiction remains intact. The appellate order, which is contained in its disposition, does not become effective until the remittitur issues. When the remittitur issues, appellate court jurisdiction terminates and the trial court then proceeds as directed by the appellate order, guided by the views expressed in the opinion.

In view of these principles, we conclude the trial court erred to the extent it used a non-final opinion of this court to alter its procedures and influence the outcome of the matter before it. The trial court should have proceeded solely on the basis of its continuing jurisdiction, which authorizes it to continue to decide issues concerning the child's placement and well-being during the pendency of an appeal, based on evidence presented by the parties, under the appropriate statutory provision.

FACTUAL AND PROCEDURAL BACKGROUND

Anna S. is the youngest child of Angelina S. and Tobias S.*fn3 (together, parents). Anna is now five years old. In January 2006, when Anna was 14 months old, she and her brothers were adjudicated dependents of the juvenile court and removed from parental custody. Tobias was diagnosed with a serious mental health disorder and Angelina had recently threatened to harm herself and Anna. The parents had a five- year history of domestic violence and involvement with child protective services.

The factual and procedural background of the case from November 23, 2006, to September 17, 2008, is detailed in Anna S. Because the questions raised in this appeal involve procedural and substantive issues that occurred after this court filed Anna S., our recitation of the early factual and procedural background of Anna's dependency proceedings is brief.

Anna was in out-of-home placement from November 2005 to March 2007, when she and her brothers were returned to their parents' care. The San Diego County Health and Human Services Agency (Agency) removed the children again in June 2007 because of Angelina's unwillingness and inability to protect them from Tobias's volatile behaviors. Anna remained in foster care placement until September 17, 2008, the date of the scheduled section 366.26 hearing, when the court granted Angelina's section 388 petition to return Anna to her physical custody (placement order). Minor's counsel appealed.

Angelina and Anna lived in a transitional shelter home. In December 2008, without informing the Agency, Angelina traveled across country with Anna in the rented car of a man named Darryl. When they reached North Carolina, Darryl left Angelina and Anna on the side of the road without money, food or transportation. Angelina contacted North Carolina social services for assistance and that agency provided Angelina and Anna with temporary food and shelter and contacted the San Diego Agency. With the assistance of both agencies, Angelina and Anna flew back to San Diego.

The Agency convinced Kathy Gorzon, the director of the shelter home, to allow Angelina and Anna to return to the shelter. Gorzon stated that after Angelina met Darryl, a former resident, Angelina spent time with him and started breaking shelter rules. The Agency also reported that Angelina had "texted" Tobias to ask for information about bus tickets from Nashville, Tennessee to San Diego, and Angelina and Tobias were in the same place at a visit on January 14, 2009. The social worker believed that these contacts violated a juvenile court order directing each parent not to have direct or indirect contact with the other parent.

In January 2009 minor's counsel filed a section 388 petition (minor's petition) seeking Anna's removal from Angelina's care for placement in foster care.

The Agency did not agree with minor's counsel's request to remove Anna from Angelina's care. Although Angelina demonstrated poor judgment, the Agency believed the family's circumstances would stabilize with continued in-home services.

At a special hearing on February 4, 2009, the Agency argued minor's petition did not state a prima facie case of changed circumstances and removal from Angelina was not in Anna's best interest. After reviewing the record and reading the Agency's report, the court stated the report supported minor's petition and expressed surprise at the Agency's position. The court set an evidentiary hearing on minor's petition for March 20. The court stated Angelina had the opportunity in that time to ...


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