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In Re J.S., A Person Coming Under the Juvenile Court Law. v. Jo.S

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)


October 14, 2011

IN RE J.S., A PERSON COMING UNDER THE JUVENILE COURT LAW. SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
JO.S., DEFENDANT AND APPELLANT. J.S., APPELLANT.

APPEAL from a judgment of the Superior Court of San Joaquin County, Anthony P. Lucaccini, Judge. (Super. Ct. No. J05492)

The opinion of the court was delivered by: Duarte , J.

CERTIFIED FOR PUBLICATION

Reversed.

Minor J.S. (minor) and her father Jo.S. (father) appeal from the judgment of disposition and an order denying a motion to dismiss the dependency brought by respondent San Joaquin County Human Services Agency (the Agency).*fn1 (Welf. & Inst. Code,*fn2 §§ 358, 360, 395.) Minor and father contend the juvenile court erred in denying the Agency's motion to dismiss. The Agency contends the appeal is moot, but, if not moot, concedes error in the motion's denial.

As we will explain, we conclude the appeal is not moot and agree with the parties that the juvenile court erred in denying the motion to dismiss. We shall reverse.

FACTUAL AND PROCEDURAL BACKGROUND

The teenage minor*fn3 was placed in protective custody in July 2010, following mother's arrest on charges of physical abuse of a minor. Father was in state prison and mother had no stable home. According to the detention report, minor was pregnant and wanted to stay in California to be with her boyfriend rather than join her siblings in Alabama. At the initial hearing, the court declined to order minor detained and returned her to her mother. Mother consented to jurisdiction for purposes of drug court and was ordered to participate therein. The court did not impose any conditions on mother's continued custody of minor or restrict her control of minor in any way.*fn4

Minor and mother appeared at the jurisdiction hearing in September 2010. The court sustained an amended petition and continued the matter for disposition. The court did not change minor's placement (continuing with mother) or impose any conditions on mother's continued custody of minor or restrict her control of minor in any way.

In the disposition report, the Agency recommended placing minor in foster care and offering services to mother. In October 2010, the court set a contested disposition hearing for December 2010. Minor remained with mother.

A "placement" hearing was conducted on November 5, 2010. At the hearing, counsel for the Agency informed the court that mother had taken minor to Nevada over the weekend and consented to minor's marriage to minor's 18-year-old boyfriend, the father of her unborn child. The court set a detention hearing for November 8 and ordered minor to have no contact with her husband until the hearing. Minor agreed to voluntarily stay with her grandfather pending the next hearing.*fn5

At the November 8 detention hearing, the court was "very upset" at the "attempted marriage" and directed the agency to "look into filing a petition."*fn6 The court expressed its opinion that mother could not consent to the marriage because court approval was required. The court continued minor's placement with the grandfather and modified the prior no-contact order to permit the husband to visit minor at the grandfather's home.

On November 17, 2010, the Agency filed a motion to dismiss the dependency on the grounds that minor's marriage in Nevada, with her mother's unrestricted consent, emancipated minor and removed her from dependency jurisdiction. At the hearing on the motion to dismiss, the court disagreed with the authority cited by the Agency, finding that mother had "no authority to leave California." The court further opined that court consent was needed for the marriage to be valid; therefore, there was no basis for emancipating minor. It refused to dismiss the case.

At the disposition hearing in December 2010, all parties renewed the request for dismissal. The court agreed with minor's counsel that it did not limit mother's rights as to minor, but nonetheless declined to dismiss. The court adjudged minor a dependent, ordered her to remain in the grandfather's home,*fn7 and denied services to father. The parents and minor appealed.

In April 2011, the court dismissed the dependency and entered orders giving mother sole legal and physical custody of minor and denying visitation to father. Father and minor have appealed these exit orders.*fn8

DISCUSSION

I

Mootness

The Agency argues this particular appeal is now moot because the juvenile court has since dismissed the dependency.

We disagree.

The exit orders are also pending appeal, and include adverse custody and visitation orders, which were entered as a direct result of matters challenged in this appeal--the juvenile court's denial of the Agency's motion to dismiss dependency. (See In re Joshua C. (1994) 24 Cal.App.4th 1544, 1547-1548; In re Kristin B. (1986) 187 Cal.App.3d 596, 603, 605.) The juvenile court's denial of the Agency's motion to dismiss directly impacts the exit orders granting custody and denying visitation because they depend upon a determination that the minor is not emancipated. Thus this appeal is not moot.

II

Motion to Dismiss Dependency

Father and minor contend, and the Agency agrees, that the juvenile court erred in failing to grant the Agency's motion to dismiss based on minor's emancipation by marriage. We agree with the parties.

Although the juvenile court had jurisdiction over minor's case and thus the authority to make such determinations and orders as necessary in its exercise of dependency jurisdiction, in this particular case, it made no such determinations and orders prior to minor's marriage. The mere existence of authority to direct a parent's conduct in relation to his or her child does not in and of itself constitute exercise of that authority, and does not translate to automatic limitations on the parent's general rights absent some specific direction or order.

Here, the juvenile court never removed minor from mother's custody and control. From the time it returned minor to mother from the Agency's protective custody, it did not limit or restrict mother's exercise of her custody of and control over minor. It did not impose any conditions on mother's continued custody of minor or restrict her control of minor in any way. The fact that the mother submitted to the court's jurisdiction did not, in and of itself, create any limitations on her parental rights. It is clear that mother retained the right to transport minor to Nevada and consent to her marriage.*fn9

Under Nevada law, "a person at least 16 years of age but less than 18 years of age may marry only if the person has the consent of: (a) either parent." (Nev. Rev. Stats. § 122.020, subd. (3)(a).) With mother's consent, minor obtained a valid marriage license in Nevada. This resulted in a valid marriage in California. (Fam. Code, § 308; McDonald v. McDonald (1936) 6 Cal.2d 457, 459.) As a result of the marriage, minor was emancipated by operation of law. (Fam. Code, § 7002, subd. (a).) As an emancipated minor, she cannot be the subject of a dependency proceeding. (Fam. Code, § 7050, subd. (c).) Accordingly, the juvenile court erred in denying the Agency's motion to dismiss the dependency proceeding and in adjudicating the emancipated minor a dependent child.*fn10

DISPOSITION

The judgment is reversed. The juvenile court is directed to enter an order dismissing the dependency proceeding.

We concur: BLEASE , Acting P. J. NICHOLSON , J.


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