Filed 2/13/14 In re A.E. CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

In re A.E. et al., Persons Coming Under the
Juvenile Court Law.
FRESNO COUNTY DEPARTMENT OF
SOCIAL SERVICES,                                                                        F066111
         Plaintiff and Respondent,                                    (Super. Ct. Nos. 11CEJ300265-1,
                   v.                                                 11CEJ300265-2, 11CEJ300265-3,
                                                                              11CEJ300265-4)
JOHN E.,
       Defendant and Appellant.
In re D.L., a Person Coming Under the                                                 OPINION
Juvenile Court Law.
FRESNO COUNTY DEPARTMENT OF
SOCIAL SERVICES,                                                                        F067373
         Plaintiff and Respondent,                                     (Super. Ct. No. 11CEJ300265-2)
                   v.
JOHN E.,
         Defendant and Appellant.
                                                   THE COURT*
         APPEAL from orders of the Superior Court of Fresno County. Mary Dolas,
Commissioner.
         Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and
Appellant.
         No appearance for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Cornell, Acting P.J., Detjen, J. and Franson, J.
       John E. is the grandfather and former legal guardian of 12-year-old David L., who
is a juvenile dependent. John appealed from an October 2012 juvenile court dispositional
order, which removed David from John’s custody as legal guardian and that of David’s
mother. During the pendency of John’s first appeal, John asked the court to terminate the
legal guardianship. John no longer wished to participate in reunification services or the
court proceedings and wished to resign as David’s legal guardian. The court granted
John’s request and terminated his legal guardianship of David. John appealed.
       This court subsequently consolidated John’s two appeals. In the first appeal,
John’s court-appointed appellate counsel challenged the sufficiency of the evidence to
support the decision to remove David from John’s custody. After reviewing the entire
record in John’s second appeal, the same counsel informed this court he found no
arguable issue to raise. Counsel requested and this court granted leave for John to
personally file a letter setting forth a good cause showing that an arguable issue of
reversible error does exist. (In re Phoenix H. (2009) 47 Cal.4th 835, 844 (Phoenix H.).)
       John has since written us of his contempt for respondent Fresno County
Department of Social Services (department) and his disdain for the juvenile court. In his
view, the department was corrupt and the juvenile court was a kangaroo court. He asks
this court to give him and his family justice and return David to him.
       On review, we will dismiss both appeals. John’s first appeal is moot in light of the
juvenile court’s order granting his request to terminate the legal guardianship. In his
second appeal, John fails to make a good cause showing that an arguable issue of
reversible error exists.
                     PROCEDURAL AND FACTUAL SUMMARY
       In December 2011, the department detained David, as well as his siblings, and
initiated the underlying dependency proceedings. In large part, the children were at risk
of harm due to their mother’s substance abuse and her ongoing domestic violence with
John, who provided care for the children. In addition, as John later submitted in the


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spring of 2012, David and his older brother, both of whom were John’s wards as well as
grandsons, were at substantial risk of suffering physical harm by John in that he exposed
them to an unsafe environment of ongoing domestic disturbances with their mother.1
Also John had engaged in domestic disturbances with the mother in the children’s
presence on numerous occasions.
       John was quick to participate in services offered by the department. He also
secured a restraining order protecting him from the mother. On the other hand, the
mother was not taking advantage of services provided by the department.
       By the spring of 2012, John began receiving liberal unsupervised visits with the
children. However, in August 2012, the department learned from David and his siblings
that John was permitting the mother to have contact with the children at his home. This
caused the department concern that the children would be exposed to violence in the
mother’s presence. As a result, John’s visits were once again supervised. The
department also required John to enforce the restraining order against the mother and
participate in a victim’s group to address domestic violence issues, among other things.
       John complied with the department’s requirements leading up to the October 2012
dispositional hearing. At that hearing, the juvenile court made the required detriment
findings to remove David from both his mother’s and John’s custody. It also granted
John unsupervised visits with David. John appealed.
       By the time of the first status review scheduled for spring of 2013, the mother was
still not participating in any court-ordered reunification services. John, on the other hand,
completed all court-ordered services and made significant progress in addressing the
issues that led to David’s out-of-home placement. In its report to the juvenile court, the
department recommended that the court terminate services for the mother and continue
services for John. The department did not recommend that David be returned

1      John’s status as legal guardian was later terminated by the juvenile court, as that
child was reunified with his father.


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immediately to John’s custody, as it believed return would create a substantial risk of
detriment to David. Still, the department recommended the court order an extended visit
between John and David.
       A hearing on the department’s report and recommendation was set for April 10,
2013. On April 10, John’s trial counsel advised the court she filed that morning a
declaration in which John contested certain facts, and “then” John indicated to her that he
no longer wished to be involved in the dependency case and he wanted to resign his
guardianship. He also completed a one-page document expressing his wish. According
to it, John wished to resign as the legal guardian because “the CPS is corrupt and the
Dependency Court is a Kangeroo Court,” and he believed “it is in the best interest of
[David] that [his] status as legal guardian of [David] be terminated.” John also told the
court he no longer wanted any further services or any further court participation. He
added he thought David no longer needed a legal guardian; he needed a mother.
       The juvenile court granted John’s request and, having found it was in David’s best
interest to terminate the guardianship, ordered John’s legal guardianship of David be
terminated.
                                      DISCUSSION
       Soon after the juvenile court terminated John’s legal guardianship over David, the
department asked this court to take judicial notice of the April 2013 termination order and
dismiss John’s appeal from the October 2012 dispositional order as moot. We gave
John’s appellate counsel the opportunity to respond to the department’s requests. After
reviewing the briefing, he submitted the matter “on the briefing currently before this
Court,” an apparent reference to appellant’s opening brief recently filed with us. This
court later denied the department’s requests in light of John’s June 2013 notice of appeal
from the termination order.
       At the time of our denial order, this court was unaware the juvenile court issued its
guardianship termination order in response to John’s request. The department made no


                                             4
mention of that fact in its pleadings and we did not have the record on John’s second
appeal.
       The fact that the juvenile court terminated John’s legal guardianship at his request
leads us to revisit the mootness question. That is, whether any effective relief can be
granted in John’s first appeal, in which he sought David’s return to his custody as legal
guardian, given the later termination of the guardianship at John’s request. (Eye Dog
Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541 (Eye
Dog Foundation).) To resolve this question, we will look first to John’s second appeal.
       An appealed-from judgment or order is presumed correct. (Denham v. Superior
Court (1970) 2 Cal.3d 557, 564.) It is an appellant’s burden to raise claims of reversible
error or other defect and present argument and authority on each point made. If the
appellant fails to do so, the appeal should be dismissed. (In re Sade C. (1996) 13 Cal.4th
952, 994.) In John’s second appeal, as previously mentioned, his counsel found no
arguable issue of reversible error.
       Similarly, John has not raised any claim of error or other defect against the
guardianship termination order from which he has appealed. Instead, John strongly
criticizes the department for a case plan, which he describes as permanently dividing and
removing his family from one another as well as corrupting David. John also claims the
department did everything to undermine his legal guardianship. As for the superior court,
John complains, it was not following the law and instead gave the department too much
discretion. John, however, provides no specifics.
       Although he remains clearly frustrated that David was removed from his custody
in October 2012, John fails to identify any error on the court’s part when, in April 2013,
it granted his request to resign his guardianship over David. The apparent fact that John
lost faith in the judicial system and decided he wanted nothing more to do with it at the
April 2013 hearing does not absolve John from his appellate burden to show at least
arguable, reversible error by the superior court when it made its April 2013 order.


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(Phoenix H., supra, 47 Cal.4th at p. 844.) We also observe that “‘[h]e who consents to an
act is not wronged by it.’” (Grunsky v. Field (1905) 1 Cal.App. 623, 626.) Therefore, we
dismiss John’s appeal from the April 2013 order terminating his legal guardianship over
David. (Phoenix H., supra, 47 Cal.4th at p. 844.)
        This leaves us then with John’s first appeal in which he challenged the sufficiency
of the evidence to support the court’s 2012 order removing David from his custody as the
child’s legal guardian. It is the duty of an appellate court to decide actual controversies
by a judgment, which can be carried into effect, and not to give opinions upon moot
questions or abstract propositions, or to declare principles or rules of law which cannot
affect the matter in issue in the case before it. (Eye Dog Foundation, supra, 67 Cal.2d at
p. 541.) When, during the pendency of an appeal, an event occurs which renders it
impossible for an appellate court, should it decide the case in favor of the appellant, to
grant any effectual relief, the court will not proceed to a formal judgment, but will
dismiss the appeal. (Ibid.)
        There is no effective relief we could grant, assuming for the sake of John’s
argument there was insufficient evidence to support the removal order. The order
removing David from John’s custody was based on the fact that John was the child’s
legal guardian. (See § 361, subd. (c).) Now, John is no longer the child’s legal guardian
and therefore cannot be awarded custody. We therefore conclude John’s first appeal on
the issue of the removal order is moot. (Eye Dog Foundation, supra, 67 Cal.2d at p.
541.)
        In his first appeal, John also joined in an appeal brought by David’s mother (In re
Anthony E. et al.; case No. F066110). She raised a single issue, disputing a finding that
the Indian Child Welfare Act (ICWA) did not apply to David and another of his siblings.
In that appeal, the department conceded its ICWA-noticing effort was inadequate. This
court in turn vacated the juvenile court’s finding and remanded the matter to the juvenile
court with directions to comply with ICWA’s notice provisions. The combination of our


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disposition in the mother’s appeal and the fact that John is no longer David’s legal
guardian renders his joinder a moot point.
                                     DISPOSITION
       The appeals herein are dismissed.




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