Filed 11/20/15 In re B.N. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 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 This opinion has not been certified for publication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 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



In re B.N., a Person Coming Under the
Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES,                                               E062627

         Plaintiff and Respondent,                                       (Super.Ct.No. RIJ1400011)

v.                                                                       OPINION

A.N. et al.,

         Objectors and Appellants.




         APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson,

Judge. Dismissed.

         Daniel G. Rooney, under appointment by the Court of Appeal, for Objectors and

Appellants.

         Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Anna

M. Marchand, Deputy County Counsel, for Plaintiff and Respondent.



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        Appellants A.N., T.N., and S.N. appeal from the juvenile court’s denial of their

Welfare and Institutions Code1 section 388 petition requesting to participate in the

section 366.26 hearing scheduled for their brother, B.N. (the child). We dismiss the

appeal as moot.

                   FACTUAL AND PROCEDURAL BACKGROUND

        The parents of the child, S.N. (father) and A.N. (mother), were married and

decided to adopt children. They adopted A.N. from China in 2005. She was 11 months

old at the time.2 Mother later became pregnant and gave birth to twin girls, T.N. and

H.N. (the twins). Subsequently, the parents were contacted about the child, who was

available for adoption from China. They received the child into their home on March 4,

2013.

        On January 3, 2014, the Riverside County Department of Public Social Services

(DPSS) filed a section 300 petition on behalf of the child and his sisters (the children).

A.N. was nine years old at the time, the twins were three years old, and the child was 3

years old, as well. The petition alleged that the child came within the provisions of

section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (e)

(severe physical abuse of a child under five). The petition also alleged that A.N., T.N.,

and H.N. (the girls) came within the provisions of section 300, subdivisions (b) and (j)

        1All further statutory references will be to the Welfare and Institutions Code,
unless otherwise noted.

        2
        The parents of the child filed an appeal under case No. E063302. Pursuant to
DPSS’s request filed on March 19, 2015, we took judicial notice of the record that case.


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(abuse of sibling). The petition included the allegation that, while in the care and custody

of the parents, the child sustained multiple fractures to various parts of his body,

including his left and right clavicle, upper left humerus bone, and lower left humerus

bone. The parents had no explanation for the injuries. The petition alleged that the girls

were at risk of similar harm.

       In the detention report, the social worker reported that DPSS received a referral on

December 30, 2013, regarding the child. Father brought the child to the emergency

room, and the child was initially diagnosed with a fractured left arm. The fracture was

highly suggestive of non-accidental trauma. The police were called, and an officer spoke

with the emergency room doctor, Victoria Shooks, who said that a skeletal survey was

done and several fractures were noted. Some fractures were a few weeks old. Dr.

Shooks and a radiologist agreed that the fractures were particularly indicative of abuse.

       On January 6, 2014, a juvenile court detained the children in foster care. The

court ordered visitation twice a week.

       Jurisdiction/Disposition

       The social worker filed a jurisdiction/disposition report on January 23, 2014, and

recommended that the children be declared dependents of the court, and that reunification

services not be provided to either parent, pursuant to section 361.5, subdivision (b)(5) and

(b)(6). The social worker further reported that the child and A.N. were placed with the

paternal grandparents, and the twins were placed with a paternal uncle and aunt.




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       The social worker filed an amended petition on April 17, 2014. The amended

petition deleted the allegations under section 300, subdivisions (a) and (b). At a hearing

on that date, the court found that the child came within section 300, subdivision (e), and

declared him a dependent of the court. It also denied reunification services to the parents

as to the child pursuant to section 361.5, subdivision (b)(5) and (b)(6), and set a section

366.26 hearing for September 2, 2014. Regarding the twins, the court found true the

allegations under section 300, subdivision (j), and declared them dependents of the court.

The court removed them from the parents’ custody and ordered the parents to participate

in reunification services. The parties reached an agreement to have A.N. returned to the

parents. The court ordered her returned to the parents’ custody, subject to DPSS

supervision, on a family maintenance plan.

       Status Review Report

       On August 20, 2014, the social worker filed a combined report pursuant to

sections 366.26, 366.3, 366.21, and 364. The social worker recommended that the

parents be offered an additional six months of family maintenance services as to A.N. As

to the twins, she recommended that they be returned to the parents’ custody under a

family maintenance plan. Regarding the child, the social worker recommended that

parental rights be terminated. The social worker reported that the twins had been having

overnight visits with the parents, and that the family consistently visited the child once a

month. They enjoyed the visits, and the visits went well. The social worker reported that

the children appeared to have a significant bond with the parents and each other. The



                                              4
social worker further reported that the child had adjusted well to his prospective adoptive

home, where he had been placed since April 23, 2014. He appeared happy to see his

family at visits, but he did not cry with the transition back to his prospective adoptive

family after visits.

       The social worker filed an addendum report on August 23, 2014 and attached a

preliminary adoption assessment report. The social worker described the prospective

adoptive parents as mature and stable. The child was attached to them, sought their

attention and affection, and was easily comforted by them. The prospective adoptive

parents were also attached to him. They were committed to raising the child in a safe,

loving environment.

       At the six-month review hearing regarding T.N. and H.N., the court returned the

twins to the parents’ custody, under a plan of family maintenance.

       Section 388 Petition

       On November 20, 2014, the girls filed a section 388 petition, asking the court to

grant them standing to participate in the section 366.26 hearing scheduled for the child.

They opposed the adoption of the child and wanted to be heard by the court. The court

denied the petition, stating that there had been no showing that the request would be in

the child’s best interest.

       Section 366.26 Hearing

       The court held a contested section 366.26 hearing on January 16, 2015. Counsel

for the parents requested that A.N. be permitted to testify regarding her relationship with



                                              5
the child. However, the child’s counsel objected, as did county counsel. The court found

that there was no doubt the child had a close relationship with A.N., as well as the twins.

Since there was no indication that they were not close, the court decided not to permit

A.N. to testify. The social worker testified at the hearing and said that the parents had

visits with the child once a month. The last visit she supervised was on December 18,

2014. The visit went well. The child was happy to see the girls and the parents. He

appeared to have more of an affinity for A.N. The children read with each other and

played with toys, and the parents brought snacks. The social worker testified that the

child appeared to be happy during the visits, but was fine when the visit ended. He said

goodbye to everyone. She testified that at the end of visits in general, the child was not

particularly sad. Mother also testified that the child had pet names for his sisters.

       After hearing testimony and closing arguments, the court found it likely that the

child was going to be adopted. The court also found that there was a sufficient basis for

terminating parental rights. The court noted that two exceptions to the termination of

parental rights had been argued—the sibling relationship exception and the parental bond

exception. It noted that the parents may have a bond, but it was clear that such bond did

not outweigh the benefits of adoption. The court further found that the siblings had a

close relationship. However, the child was clearly in a very good home, where he was

free from abuse, and where he was loved and cherished. Thus, the court found that

neither exception applied and that adoption was in the child’s best interest. The court

terminated parental rights and set adoption as the permanent plan.



                                              6
                                             ANALYSIS

                                    The Issue on Appeal is Moot

       The girls appeal from the juvenile court’s denial of their section 388 petition

requesting the court to grant them standing to participate in the section 366.26 hearing.

We conclude that this appeal is moot.

       The girls argue that the court abused its discretion in denying their section 388,

subdivision (b) petition without an evidentiary hearing. Section 388, subdivision (b),

provides that “a child . . . may petition the court to assert a relationship as a sibling

related by blood, adoption, or affinity . . . to a child who is . . . a dependent of the juvenile

court, and may request . . . consideration when determining or implementing a case plan

or permanent plan for the dependent child.” The girls assert that “[t]he point of the

instant appeal is [their] wish to participate in the section 366.26 hearing for their brother,

[the child].” Respondent points out that the subject hearing has already taken place. As

such, there is no effective relief this court can grant, and the appeal must be dismissed. In

their reply brief, the girls acknowledge that the parents have appealed the decision

severing their parental rights to the child. The girls conclude that, should the parents

prevail, the juvenile court would likely conduct another section 366.26 hearing, at which

time they could participate. Thus, they assert that their appeal is not moot until this court

affirms the judgment of the juvenile court.

       “An appeal becomes moot when, through no fault of the respondent, the

occurrence of an event renders it impossible for the appellate court to grant the appellant



                                               7
effective relief.” (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1054.) “When the

court cannot grant effective relief to the parties to an appeal, the appeal must be

dismissed.” (In re I.A. (2011) 201 Cal.App.4th 1484, 1490 (I.A.).) Here, as respondent

points out, the section 366.26 hearing has already been held. Moreover, we have

reviewed the parents’ appeal and affirm the juvenile court’s order terminating parental

rights. (See In re B.N. (Oct. 30, 2015, E063302) [nonpub. opn.].) As such, the issue

raised in the instant appeal has been rendered moot, and the appeal must be dismissed.

       We further note that the girls were not prejudiced by the court’s denial of their

section 388 petition. They are apparently claiming that, by denying them the opportunity

to participate in the section 366.26 hearing, “the court prejudged and eliminated a later

invocation and application of the sibling exception to adoption.” To the contrary, the

record reflects that the sibling relationship exception to the termination of parental rights

was argued at the section 366.26 hearing. The social worker, father, and mother all

testified as to what the child and the girls did together at visits, how they interacted, the

nicknames the child called them, and how he reacted at the end of visits. The court

expressly discussed the application of the sibling relationship exception. It found that the

siblings had a close relationship, but noted that, “even with that sibling relationship, the

Court is still called to weigh the benefit of that relationship against [the child’s]

permanence through adoption.” The court concluded that the sibling relationship

exception did not apply, and that adoption was in the child’s best interest.




                                               8
       Ultimately, since the section 366.26 hearing has passed, and the court cannot grant

the relief requested, the appeal is moot.

                                      DISPOSITION

       The appeal is dismissed as moot.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                              HOLLENHORST
                                                                        Acting P. J.


We concur:


McKINSTER
                           J.


KING
                           J.




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