Filed 1/8/16 In re S.D. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re S.D., a Person Coming Under the
Juvenile Court Law.
                                                                 D068762
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                                 (Super. Ct. No. CJ1199)
         Plaintiff and Respondent,

         v.

L.D.,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Laura J.

Birkmeyer, Judge. Dismissed.



         Katherine A. Clark, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
        L.D. (Mother) appeals an order granting a petition filed by the San Diego County

Health and Human Services Agency (the Agency) under Welfare and Institutions Code1

section 388 to suspend Mother's visitation with her four-year-old son S.D. On October

14, 2015, while the appeal was pending, the juvenile court ordered that Mother's

visitation with S.D. resume. Based on the October 14, 2015, visitation order, the Agency

filed a motion to dismiss Mother's appeal as moot and a request for judicial notice of the

court's October 14 minute order and the reporter's transcript of the October 14 hearing.

We grant the Agency's request for judicial notice and motion to dismiss the appeal as

moot.

                   FACTUAL AND PROCEDURAL BACKGROUND

        On November 21, 2014, the Agency filed a petition on behalf of then-three-year-

old S.D. under section 300, subdivision (a), alleging Mother had subjected S.D. to a

substantial risk of serious physical harm when she hit him "on the back and head with her

fist multiple times, and slapped him in the face with her hand." The petition further

alleged that Mother was arrested for child cruelty and had a history of hitting S.D. The

Agency filed the petition and detained S.D. after witnesses called police to report that

Mother had hit S.D. while in line at a Department of Motor Vehicles office. The

witnesses reported that Mother struck S.D. multiple times with her fist on the back and

head area and slapped him in the face.



1      All statutory references are to the Welfare and Institutions Code unless otherwise
specified.

                                             2
       During supervised visitation before the contested jurisdiction/disposition hearing,

Mother engaged in hostile and inappropriate behavior, including threatening to leave the

visitation center with S.D., yelling and "cuss[ing]" at staff at the visitation center, and,

when asked to leave, stating she would not leave unless physically removed by staff or

police. At the contested jurisdiction/disposition hearing in January 2015, the court

sustained the petition, removed S.D. from Mother's custody, and ordered that Mother was

to be provided reasonable visitation. The court's minute order stated: "As long as

Mother remains compliant with court orders, Agency directions and if Mother does not

engage in explosive behaviors with anyone (minor, caregiver, Agency and court) [ ] and

if Mother's visits are appropriate with no corporeal punishment or disrobing of the minor

and no profanity with the minor or anyone else involved in the case, and only age

appropriate language with the minor; [¶] if all conditions are met, then after two months,

monitored unsupervised visits will occur at the Agency's office and if those go well, then

after one month, short, unsupervised visits will begin in a public place. Moving to

unsupervised contact is also contingent on the minor not having adverse reactions to

visitation with Mother. Mother is to act appropriately with all parties, including

representatives of the Agency." (Some capitalization omitted.)

       After the jurisdiction/disposition hearing, Mother continued to engage in

inappropriate and explosive behavior during visits with S.D., including pulling S.D.'s

pants down and checking his buttocks, screaming obscenities at Agency social workers

and attempting to throw a punch at a visitation supervisor, discussing the dependency

case in front of S.D., ransacking and throwing food on the floor of a visitation room after

                                               3
social workers left the room with S.D., and threatening to kill herself and return to the

visitation location to "get even." The Agency reported that "four explosive episodes

during visits" in S.D.'s presence had "negatively impacted [S.D.,] as evidenced by him

crying, holding on tightly to [the social worker], and asking to be taken home."

       In June 2015, the Agency filed a section 388 petition requesting the court to

change its supervised visitation order to an order suspending visitation until Mother

showed compliance and progress with her case plan and was "able to self[-]regulate

without becoming aggressive and lashing out in the presence of the minor." After a

contested evidentiary hearing, the court granted the petition, finding by clear and

convincing evidence that it was in S.D.'s best interests to suspend Mother's visitation.

Specifically, the court found it was detrimental to S.D. emotionally and physically to

continue visitation with Mother if she was "unable to abide by the court orders previously

put in place." (Capitalization omitted.)

                                      DISCUSSION

       As noted, the Agency filed a motion to dismiss Mother's appeal as moot and a

request for judicial notice of the court's October 14, 2015 reporter's transcript and minute

order restoring Mother's supervised visitation. In considering whether an appeal has been

rendered moot by a postappeal hearing, it is appropriate for us to take judicial notice of

documents pertaining to the subsequent hearing. (In re Karen G. (2004) 121 Cal.App.4th

1384, 1390 (Karen G.) [judicial notice taken of minute order from six-month review

hearing in deciding the appeal from jurisdiction and disposition orders was moot].)



                                             4
       In opposition to the motion to dismiss, Mother cites In re Zeth S. (2003) 31 Cal.4th

396, 412-413 (Zeth S.) for the proposition that an appellate court's ability to receive

evidence of subsequent events in dependency appeals is limited when the evidence is not

relevant to the issues raised in the trial court, is presented to the appellate court through

unsworn statements of counsel for a nonappealing party, and is presented for the purpose

of preventing reversal of the judgment. In Zeth S., the California Supreme Court

admonished the Court of Appeal "for relying on postjudgment events to reverse orders

terminating parental rights." (Karen G., supra, 121 Cal.App.4th at p. 1389.)

       The Karen G. court explained why notwithstanding Zeth S., judicial notice of

postappeal events is appropriate in considering whether an appeal is moot under

circumstances similar to those here. The Supreme Court in Zeth S. stated: "Under the

Court of Appeal's expansive view of the scope of an appeal of an order terminating

parental rights, postjudgment evidence of circumstances involving the minor's present

out-of-home custody status during the pendency of the appeal would be routinely and

liberally considered. Appointed counsel for the minor in the appeal would be

encouraged, and indeed obligated, to independently investigate such evidence outside the

record, and bring it to the reviewing court's attention for consideration in the appeal.

Basic formalities such as the need for a notice of appeal, and the requirement that issues

raised on appeal first be raised in the trial court, would be dispensed with, and a best

interests standard of review, applied anew from the perspective of the reviewing court,

would be utilized to determine whether the juvenile court's judgment should be reversed

and the case remanded for a new [section] 366.26 hearing, even where the juvenile court

                                               5
itself has committed no legal error in terminating parental rights on the record evidence

before it." (Zeth S., supra, 31 Cal.4th at p. 412.)

       The Karen G. court noted the concerns in Zeth S. were not present in Karen G.

First, the appealed order in Karen G. was not an order terminating parental rights.

"Termination orders are 'conclusive and binding' and '[a]fter making the order, the

[juvenile] court shall have no power to set aside, change, or modify it, but nothing in this

section shall be construed to limit the right to appeal the order.' (§ 366.26, subd. (i).) In

contrast, a jurisdictional and dispositional order is subject to modification pursuant to a

proper showing of changed circumstances under section 388, as are all subsequent

orders except a final termination of parental rights. The Legislature has thus recognized

the dynamic and changing nature of dependency proceedings by creating a mechanism

for the trial court to acknowledge changing circumstances." (Karen G., supra, 121

Cal.App.4th at p. 1390, italics added.) Like the jurisdiction/disposition order appealed in

Karen G., the visitation order appealed in the present case is subject to modification for

changed circumstances.

       Second, the basis for the requested dismissal in Karen G. was "evidence of which

[an appellate court] can take judicial notice, not the unsworn statements of counsel that so

concerned the Zeth S. court. 'Judicial notice may be taken of . . . [¶] . . . [¶] [r]ecords

. . . of any court of this state . . . .' (Evid.Code, § 452; see also Evid.Code, § 459.)"

(Karen G., supra, 121 Cal.App.4th at p. 1390.) Like the minute order from the six-month

review hearing in Karen G., the October 14, 2015 minute order in question here is a court

record showing the circumstances giving rise to the appeal had changed. As such, the

                                              6
order and related reporter's transcript are properly before this court (ibid.) and we

properly may take judicial notice of them.

       " '[A]n action that originally was based on a justiciable controversy cannot be

maintained on appeal if all the questions have become moot by subsequent acts or events.

A reversal in such a case would be without practical effect, and the appeal will therefore

be dismissed.' [Citation.] The question of mootness in a dependency case should be

decided on a case-by-case basis . . . ." (In re Dani R. (2001) 89 Cal.App.4th 402, 404-

405.) In light of the juvenile court's restoration of Mother's visitation with S.D., there is

no current controversy regarding visitation and no effectual relief that we can grant

through this appeal. Consequently, the appeal is moot.2

       Mother argues that the appeal should not be dismissed as moot because it presents

an issue of public concern. (See Renee S. v. Superior Court (1999) 76 Cal.App.4th 187,

192.) We disagree that the issue raised in Mother's appeal is one of substantial public

interest. The appeal simply presents the question of whether, on this particular record,

there was substantial evidence that visitation would be detrimental.




2      We recognize that the Court of Appeal in In re Dylan T. (1998) 65 Cal.App.4th
765 (Dylan T.) decided that an appeal from an order refusing to allow a mother visitation
for no other reason than that she was incarcerated was not mooted by the mother's release
from incarceration because the mother's reunification efforts could be terminated after six
months and the lack of visitation during a significant portion of that was an error that
could infect the outcome of subsequent proceedings. (Id. at p. 770.) Dylan T., which
Mother did not cite in her opposition to the motion to dismiss, is inapposite because
Mother's reunification efforts could not be terminated after six months and the juvenile
court in this case, unlike the court in Dylan T., did not err as a matter of law in
suspending visitation.
                                              7
                                   DISPOSITION

     The request for judicial notice is granted. The appeal is dismissed as moot.




                                                                       McDONALD, J.

WE CONCUR:



HUFFMAN, Acting P. J.



McINTYRE, J.




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