Opinion
B310771
09-16-2021
In re S.N.J., a Person Coming Under the Juvenile Court Law. v. ROBERTA C., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Anuradha Khemka, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from jurisdictional and dispositional orders of the Superior Court of Los Angeles County, No. 20CCJP04590 Stephen C. Marpet, Temporary Judge. Appeal dismissed.
Anuradha Khemka, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff and Respondent.
BENDIX, Acting P. J.
For the reasons discussed below, we dismiss this appeal as moot. We limit our discussion of the factual and procedural background to those facts and proceedings pertinent to that issue.
On September 1, 2020, the Los Angeles County Department of Children and Family Services (DCFS) filed a petition asserting dependency jurisdiction over then-5-month-old S.N.J. pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (b)(1). On February 1, 2021, the juvenile court held a combined jurisdiction and disposition hearing at which it sustained an amended version of the dependency petition. The amended petition alleged four counts: count a-1, count b-1, count b-2, and count b-3.
Undesignated statutory citations are to the Welfare and Institutions Code. Section 300, subdivision (a) authorizes a juvenile court to exercise dependency jurisdiction if a “child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian.” (See § 300, subd. (a).) Subdivision (b)(1) confers dependency jurisdiction over a child if he or she “has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, ... or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse.” (See § 300, subd. (b)(1).)
Counts a-1 and b-1 alleged: “[S.N.J.'s] mother... and the father... have a history of engaging in violent altercations in the presence of the child. On 07/[30]/2020, the father broke into mother's home breaking a metal door and broke a bathroom door and pushed the mother down and struck the mother's head inflicting marks and bruises to the mother's face. The father forcefully grabbed and pulled the child's arms and legs inflicting swelling and redness to the child's forehead and swelling, marks and bruises to the child's legs. The father was arrested for spousal battery. The mother failed to protect the child[ ] by allowing the father to reside in the child['s] home and have unlimited access to the child[ ]. The violent conduct by the father against the mother and the mother's failure to protect the child endangers the child's physical health and safety, creates a detrimental home environment, and places the child at risk of serious physical harm, damage, danger and failure to protect.”
Although the amended petition averred that this incident occurred on July 29, 2020, the juvenile court found the altercation transpired on July 30, 2020.
Count b-2 averred: “[S.N.J.'s] father... has a history of substance abuse and is a current abuser of marijuana, which renders the father incapable of providing regular care for the child. On 08/28/2020, the father had a positive toxicology screen for marijuana. The child is of such a young age as to require constant care and supervision and the father's substance abuse interferes with the father's ability to provide appropriate care and supervision of the child. The mother... knew of the father's substance abuse and failed to protect the child by allowing the father to have unlimited contact with the [child]. Said substance abuse by the child's father endangers the child's physical health and safety and places the child at risk of serious physical harm, damage and danger.”
Lastly, count b-3 asserted: “[S.N.J.'s] mother... has a history of substance abuse and is a current abuser of marijuana, which renders the mother incapable of providing regular care for the child. On 08/27/2020 and 11/02/2020, the mother had positive toxicology screens for marijuana. The child is of such a young age as to require constant care and supervision and the mother's substance abuse interferes with the mother's ability to provide appropriate care and supervision of the child. Said substance abuse by the child's mother endangers the child's physical health and safety and places the child at risk of serious physical harm, damage and danger.”
Upon asserting jurisdiction over S.N.J., the juvenile court declared the child a dependent, removed him from father's custody, placed the child with mother under DCFS's supervision, and ordered mother to participate in child welfare services, including individual counseling, a parenting course, domestic abuse counseling for victims, and random drug testing. The court “admonishe[d] [mother] that any forms of marijuana found in [her] system need[ed] to go down and out, ” and that “[i]f [she] test[ed] positive for an illegal drug [she] w[ould] need to enroll in a substance abuse program and continue to test.”
Mother timely appealed the juvenile court's rulings from the February 1, 2021 combined jurisdiction and disposition hearing. Mother contests “the juvenile court['s] findings that 1) she failed to protect S.N.J. as was alleged in the (a-1), (b-1) and (b-2) counts and that; 2) S.N.J. was at substantial risk of harm from Mother's use of marijuana.” “Mother further argues the juvenile court abused its discretion in ordering her to drug test and to enroll in a full drug program if levels of marijuana metabolite did not diminish to zero.”
On August 2, 2021, the juvenile court held a review hearing pursuant to section 364. At the hearing, the court expressed its intention to terminate jurisdiction over S.N.J. upon receiving from mother's counsel a proposed juvenile custody order awarding mother sole legal and physical custody of the child. On August 9, 2021, the juvenile court awarded mother sole legal and physical custody of S.N.J. and terminated dependency jurisdiction over the child.
“Section 364 governs review hearings for dependent children who have not been removed from their parents....” (In re M.P. (2020) 52 Cal.App.5th 1013, 1020.)
We previously took judicial notice of the juvenile court's August 2, 2021 and August 9, 2021 minute orders.
At our request, the parties submitted letter briefs addressing whether the juvenile court's August 2, 2021 and August 9, 2021 orders moot the instant appeal. Having considered the parties' supplemental briefing, we conclude mother's appeal is moot.
“[T]he critical factor in considering whether a dependency appeal is moot is whether the appellate court can provide any effective relief if it finds reversible error.” (In re N.S. (2016) 245 Cal.App.4th 53, 60 (N.S.)) “As a general rule, an order terminating juvenile court jurisdiction renders an appeal from a previous order in the dependency proceedings moot.” (In re C.C. (2009) 172 Cal.App.4th 1481, 1488.) This general rule does not apply, however, “ ‘if the purported error infects the outcome of subsequent proceedings.' ” (See ibid.) If the reviewing court determines a dependency appeal is moot, the proper remedy is to dismiss the appeal. (See N.S., at p. 59.)
Under the general rule recognized in C.C., mother's appeal of the juvenile court's jurisdictional and dispositional orders is moot. The juvenile court found at the combined jurisdiction and disposition hearing that mother's abuse of marijuana and her failure to protect the child from father's violent behavior and marijuana abuse posed a substantial risk of serious physical harm to the child. The juvenile court also implicitly found that mother no longer presented such a risk to S.N.J. when it terminated jurisdiction and released him to mother's custody following the section 364 hearing. (See § 364, subd. (c) [“The court shall terminate its jurisdiction [at a section 364 hearing] unless the social worker or his or her department establishes by a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that those conditions are likely to exist if supervision is withdrawn.”].)
Mother never lost custody of S.N.J. and the juvenile court awarded her sole physical and legal custody of him. Further, the court's prior orders requiring mother to submit to drug testing and participate in a treatment program if those tests revealed the presence of illegal drugs are no longer operative now that dependency proceedings have concluded and the juvenile court's exit orders do not include any such drug conditions. Under these circumstances, we cannot provide effective relief to mother, thus underscoring that her challenges are moot.
We, sua sponte, take judicial notice of the juvenile court's exit orders upon terminating dependency jurisdiction. (See Evid. Code §§ 452, subd. (d), 459; see also In re T.S. (2020) 52 Cal.App.5th 503, 513 [“When terminating its jurisdiction over a child who has been declared a dependent child of the court, section 362.4 authorizes the juvenile court to issue a custody and visitation order (commonly referred to as an ‘exit order') that will become part of the relevant family law file and remain in effect in the family law action ‘until modified or terminated by a subsequent order.' ”].) None of these exit orders requires mother to submit to drug tests or participate in a drug treatment program if those tests reveal the presence of illegal drugs.
We do not discern how the court's jurisdictional and dispositional orders could adversely affect mother in the future. Mother admits the following: On July 29, 2020, father pushed her down and he fled with S.N.J.; the police later arrested father; S.N.J. was returned to mother's custody; mother bailed father out of jail; and, after he was freed from the jail, “[f]ather violently attacked [m]other and injured SN.J.” the following day, resulting in “mild bruising/swelling to SN.J.'s left forehead and mild redness to his calves.” Thus, it is essentially undisputed that mother failed to protect S.N.J. adequately from father.
It is also undisputed that father did not appeal the jurisdictional findings against him based on his substance abuse and mother apparently concedes she was aware of his substance abuse but nonetheless allowed him to live with her and S.N.J. Mother further acknowledges that she consumed marijuana and tested positive for marijuana metabolites on three occasions, although she maintains these facts do not support the juvenile court's assertion of jurisdiction over S.N.J. or the dispositional orders requiring her to submit to random drug tests and participate in a treatment program if those tests revealed the presence of illegal drugs.
We note mother claims father was never around S.N.J. when he used marijuana and that father was not aggressive when he consumed the drug.
All these historic facts will be in mother's record regardless of how we rule today. That there is a finding-now inchoate-that mother's marijuana usage put S.N.J. at risk would not appreciably be any more detrimental to mother in the future than the other risks to which she does not dispute she exposed the child.
Importantly, as noted above, by terminating jurisdiction over S.N.J., the juvenile court impliedly found that mother no longer presents a substantial risk of serious physical harm to the child. Given that the court simultaneously awarded mother sole legal and physical custody of the child, the juvenile court also tacitly concluded that mother had changed her behavior to eliminate any such risk to the child.
Thus, in any future dependency proceeding, DCFS will bear the burden of showing that mother's behavior has changed such that-notwithstanding the rulings favorable to mother that were issued at the section 364 hearing-she poses a substantial risk of serious physical harm to S.N.J. (See In re I.A. (2011) 201 Cal.App.4th 1484, 1495 (I.A.) [“[T]he agency will be required to demonstrate jurisdiction [in any such future proceeding] by presenting evidence of then current circumstances placing the minor at risk, ” italics added].) Similarly, the family law court can modify the exit order awarding sole physical and legal custody to mother only if there is “ ‘a significant change of circumstances since the juvenile court issued the order....' ” (See In re Cole Y. (2015) 233 Cal.App.4th 1444, 1456, italics added.) This renders the prospect that the prior jurisdictional and dispositional rulings would have any impact on subsequent proceedings speculative.
Mother resists this conclusion. First, she contends she “preserved for review[ ] her challenge to the jurisdiction and disposition orders made by the juvenile court” by filing a notice of appeal of the August 2, 2021 and August 9, 2021 rulings. Second, she argues we should “exercise [our] discretion to address [the alleged] jurisdictional/dispositional errors” on the ground that “an actual controversy exists that will likely recur....” Neither contention is persuasive.
In connection with mother's supplemental brief, she requests judicial notice of a notice of appeal of the August 2, 2021 and August 9, 2021 rulings. The copy of the notice of appeal mother submitted to us was received by the juvenile court clerk on August 13, 2021, but it was not stamped as “filed” by the clerk. We grant mother's request for judicial notice of this document because it is part of the juvenile court's records, although we reject her assertion that the document she has submitted constitutes a filing made in that court. (See Evid. Code, § 452, subd. (d) [“Judicial notice may be taken of the following matters... [¶]... [r]ecords of... any court of this state....”]; id., § 459, subd. (a) [“The reviewing court may take judicial notice of any matter specified in Section 452.”].)
Mother relies on In re Rashad D. (2021) 63 Cal.App.5th 156, for the proposition that her filing of a notice of appeal of the August 2, 2021 and August 9, 2021 rulings precludes us from dismissing the current appeal as moot. In Rashad D., Division Seven of our District held that the mother's failure to appeal from the termination of dependency jurisdiction mooted her challenges to the juvenile court's jurisdictional and dispositional orders. In the course of terminating jurisdiction, the juvenile court in Rashad D. had issued an exit order giving mother shared legal custody and father increased visitation when in the past, mother had sole physical and legal custody. (See Rashad D., at pp. 159-160, 162, 164-165.) In contrast to what Rashad D. described as an “adverse juvenile custody order” (id. at p. 164), the custody order here was favorable to mother, meaning that she cannot resuscitate her appeal of the jurisdictional and dispositional rulings by seeking review of the custody order. (See In re K.C. (2011) 52 Cal.4th 231, 236 [“[O]nly a person aggrieved by a decision may appeal. [Citations.]... These rules apply with full force to appeals from dependency proceedings.”]; cf. N.S., supra, 245 Cal.App.4th at p. 61 [“[T]he dismissal order here was favorable to Mother and does not form the basis of any adverse custody ruling. [Citation.] Mother thus has no reason to challenge the dismissal order and there is no relief to provide her either in her appeal from the jurisdictional findings or in an appeal of the favorable dismissal order.”].)
As we observed in footnote 7, ante, the notice of appeal mother submitted to us does not bear a stamp showing that it was deemed filed by the juvenile court clerk. In any event, this discrepancy has no impact on our conclusion that the instant appeal is moot.
Next, mother relies on In re J.A. (2020) 47 Cal.App.5th 1036 (JA), to argue that the juvenile court's jurisdictional finding based on mother's marijuana abuse and the related dispositional orders could “infring[e]” on her right to use marijuana for pain management and recreation now that marijuana is legal for that purpose. Accordingly, she maintains we should exercise our discretion to address those jurisdictional and dispositional orders on the merits.
A key difference between J.A. and the instant case is that in J.A., the court addressed an issue of public importance that was likely to recur. More specifically, in J.A., a juvenile court declared two children dependents, placed them in their mother's custody, and required the mother to participate in certain programs and services “sole[ly]” because she “use[d]... medical marijuana while pregnant with” one of the two children. (See J.A., 47 Cal.App.5th at pp. 1037-1038.) Although the juvenile court in that case later terminated dependency jurisdiction while the appeal of the jurisdictional and dispositional rulings was pending, the Court of Appeal reasoned that if it “fail[ed] to exercise [its] discretion to resolve the jurisdictional appeal, [DCFS] may feel free to continue to pursue jurisdiction in other cases where there is no evidence of substance abuse, and no evidence of substantial risk-only evidence that a child was born testing positive for marijuana, bolstered only by vague and unproven concerns.” (See id. at pp. 1038, 1050-1051.) Upon reaching the merits of mother's appeal, the J.A. court concluded the juvenile court lacked dependency jurisdiction over the children, and reversed the jurisdictional findings and the resulting dispositional orders. (See J.A., at pp. 1037-1038, 1046-1051.)
We note that on the merits, there was a concise but vigorous dissent. (J.A., supra, 47 Cal.App.5th at pp. 1051-1052.) We express no opinion on the merits of the competing opinions in that case.
Notwithstanding mother's argument to the contrary, J.A. does not establish that a Court of Appeal should reach the merits of a moot dependency appeal any time a parent challenges “the juvenile court's findings that [he or] she abused marijuana and placed [a child] at substantial risk of harm by using marijuana.” The exception to the mootness doctrine that J.A. invoked requires that “a ruling on the merits will affect future proceedings between the parties or will have some precedential consequence in future litigation generally.” (See In re David B. (2017) 12 Cal.App.5th 633, 654 (David B.).)
Resolution of “fact-specific questions” presented in a “substantial evidence” challenge, such as in the appeal before us, typically do not have a precedential consequence in future litigation. (See David B., supra, 12 Cal.App.5th at p. 654). J.A.'s review of the juvenile court's jurisdictional rulings in that case, however, did have precedential impact, to wit, it announced that jurisdiction under section 300, subdivision (b)(1) cannot be predicated merely on a mother's use of medical marijuana while pregnant. (See J.A., supra, 47 Cal.App.5th at p. 1038.) In contrast, the appeal before us presents archetypal fact-specific appellate challenges that do not support exercising our discretion to entertain the merits of an otherwise moot appeal. (Cf. David B., at p. 654 [“We see no basis for exercising discretion to address the fact-specific questions whether David B. was described by section 300, and whether the juvenile court's determination on that point is supported by substantial evidence.”].)
Mother also appears to argue that if left undisturbed, the rulings she contests will likely lead DCFS to initiate future dependency proceedings that may abridge her rights. She claims that the issues in this case “are likely to recur in the future given the legalization of marijuana use.” She also complains that the dispositional order-which, as we have explained, is no longer operative-had “curtail[ed] her use of marijuana” for “pain management” and was “severe and unfair.” We fail to discern what bearing either of these contentions has on the likelihood that DCFS would again commence dependency proceedings against her.
For the foregoing reasons, we dismiss this appeal as moot.
DCFS argues that mother's jurisdictional challenges are not justiciable because father did not appeal the jurisdictional findings against him. It is true that jurisdiction is over the child and not the parent in dependency proceedings. It is also therefore true that if there is jurisdiction based on one parent's conduct, the other parent's challenges to jurisdiction based on his or her own conduct are not justiciable. (See I.A., supra, 201 Cal.App.4th at pp. 1490-1492 [concluding that a father's appeal was not justiciable because he did not “challenge the jurisdictional findings involving Mother's drug abuse” and “a jurisdictional finding involving one parent is ‘ “good against both”' ”].) We would have discretion nonetheless to consider such a nonjusticiable claim if the challenged jurisdictional finding could adversely impact the challenging parent in the future. (See In re M.W. (2015) 238 Cal.App.4th 1444, 1452.) In the course of concluding that mother's appeal is moot, we have also concluded that the jurisdictional findings against mother do not have nonspeculative adverse consequences for her. Thus, we need not separately address DCFS's justiciability argument.
DISPOSITION
We grant mother's request for judicial notice of the notice of appeal marked “received” on August 13, 2021, and we dismiss mother's appeal of the juvenile court's jurisdictional and dispositional orders.
We concur: CHANEY, J., CRANDALL, J. [*]
[*] Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.