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In Re J. H., Jr., A Person Coming Under the Juvenile Court Law. v. J. H.

February 14, 2012


(Super. Ct. No. J05287)

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

In re J.H.



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In this case, the juvenile court returned minor J.H., Jr., to the custody of his mother and terminated jurisdiction. J.H., Sr., the minor's father, who had been incarcerated throughout the proceedings and whose reunification services were terminated over a year before the judgment was entered, appeals from the court's exit order denying in-person visitation with the minor so long as father remained incarcerated.*fn1 (Welf. & Inst. Code, § 362.4; all further section references are to this Code.)

Because it appeared from the record that father might have been released from prison by the time this appeal was filed, we requested supplemental briefing from the parties as to whether he had been released and whether, if so, this mooted his appeal. The parties informed us that father has been released and is now on parole. We conclude the appeal is moot.

If events subsequent to the judgment or order appealed from prevent the appellate court from granting any effectual relief, and the appeal does not raise any issue of continuing public interest likely to recur, the court must dismiss the appeal as moot. (Lester v. Lennane (2000) 84 Cal.App.4th 536, 566; In re Robert A. (1992) 4 Cal.App.4th 174, 181.) Because father is no longer incarcerated, even if we found that the order appealed from was erroneous, the time in which we could have provided effectual relief by a reversal has passed.

Father argues the appeal is not moot because: (1) An incarcerated parent's release may not alleviate all damage from an erroneous no-visitation order; the parent's relationship to the child may have suffered erosion during the period of incarceration and, if reincarcerated, the parent would again suffer the consequence of the order (See In re Dylan T. (1998) 65 Cal.App.4th 765, 769-770); (2) the erroneous order will infect the outcome of subsequent proceedings in the family court because it has prejudiced any application father might make in that court for a changed order; if the juvenile court had made an appropriate visitation order, father would not now have the burden of showing in the family court that there has been a significant change of circumstances and that the changed order he seeks would be in the child's best interests (§ 302, subd. (d); see In re A.R. (2009) 170 Cal.App.4th 733, 740); (3) the juvenile court did not make the no-visitation order only for the period of father's incarceration, but rather made a blanket "no visitation" order; thus, there is no "automatic" return of a visitation status upon his release from custody; (4) there is an issue of great public interest requiring review: "Appellant is informed and believes that it is the custom of the juvenile court in this case to deny visitation to an incarcerated parent[.]" We are not persuaded.

Father's speculation about possible "erosion" in his relationship with the minor does not defeat a finding of mootness. The authority he relies on (In re Dylan T., supra, 65 Cal.App.4th 765) is inapposite. In that case, unlike here, the incarcerated parent, who had been unable to visit her very young child due to the court's order, was still within the reunification period; moreover, although temporarily transferred from prison to a residential in-patient treatment program, she might still be reincarcerated. (Id. at pp. 769-770.) Thus, if erroneous, the order created a possibility of future prejudice to mother's reunification efforts. This case presents no such issues.

Father's claim that the no-visitation order will prejudice him if he seeks a changed order in the family court does not defeat a finding of mootness. All juvenile court exit orders "shall continue until modified or terminated by a subsequent order of the superior court." (§ 362.4.) Thus, father is situated no differently from any other party who goes to the family court requesting a modification or termination of the juvenile court's exit orders. Any such party must show that the change he seeks is supported by a significant change of circumstances and that the new order would be in the child's best interests. (§ 302, subd. (d).) Because the juvenile court's order here was expressly tied to father's incarceration (see fn. 1, ante), father's release from custody automatically satisfies the first criterion. Thus, the juvenile court's order cannot prejudice him in the family court.

As we have explained already, father's contention that the juvenile court's order was a "blanket" order not tied to his incarceration is mistaken.

Finally, father has not shown any issue of public interest requiring review. Even if an arbitrary or irrational practice by a single court might create such an issue (a claim for which father cites no authority), father has cited no evidence to support his ...

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