Opinion
B326286
11-29-2023
In re C.W., a Person Coming Under the Juvenile Court Law. v. Tania J. et al., Defendants and Appellants. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant Tania J. Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant Morris W. Dawyne R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEALS from orders of the Superior Court of Los Angeles County No. 21CCJP05573B . Pete R. Navarro, Commissioner. Dismissed as moot.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant Tania J. Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant Morris W.
Dawyne R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
VIRAMONTES, J.
Tania J. (Mother) challenges the juvenile court's order denying her motion to have minor child Chris W. (Chris) returned to her care. Appellant Morris W. (Father) challenges the juvenile court's order at the 12-month review hearing that placed Chris with Mother and denied him shared custody of Chris. While this appeal was pending, the juvenile court issued final orders awarding Mother full legal and physical custody of Chris and terminating jurisdiction. We dismiss both appeals as moot.
FACTUAL AND PROCEDURAL BACKGROUND
On December 5, 2021, Chris and his older half-sister, Aryanna J. (Aryanna), came to the attention of respondent Los Angeles County Department of Children and Family Services (DCFS). DCFS received a referral call that Mother hit Aryanna in the stomach and that both children were living in unsanitary conditions. We omit any additional facts concerning Aryanna since she is not the subject of this appeal
During the investigation, maternal aunt reported that Mother had a history of domestic violence with Father. Maternal aunt also reported that Father had not been involved in Chris's life since that incident and had moved to another state.
On December 7, 2021, DCFS filed a Welfare and Institutions Code section 300 petition on behalf of both children. DCFS alleged that the children suffered serious physical harm or were at substantial risk of suffering physical harm. The allegation was based on Mother's physical abuse, Mother's mental health issues that interfered with her parenting, Mother's unsanitary home, Mother and Father's history of violent altercations, and Mother's arrest for child endangerment. DCFS placed Chris with maternal aunt.
Undesignated statutory references are to the Welfare and Institutions Code.
On December 13, 2021, Father traveled from Illinois to the initial petition hearing. Father stated that he lived in the greater Chicago area in Illinois and visited with Chris every summer. The juvenile court detained Chris from both parents.
On January 24, 2022, the juvenile court assumed jurisdiction over Chris and declared him a dependent of the court based on the allegations in the section 300 petition. The juvenile court placed Chris with his maternal aunt. The juvenile court also granted family reunification services to both Mother and Father. Both parents had monitored visits with Chris that were either virtual or in-person.
In its July 22, 2022 status review report, DCFS reported that it placed Chris with caregiver Shannon H. because maternal aunt reported that having Chris took "a toll on her household." Father suggested having his adult daughter in Illinois temporarily take custody of Chris. Chris told DCFS that he did not want to be placed in Illinois.
DCFS also reported that Mother kept up with her regular virtual and in-person visits with Chris and acted appropriately during the visits. In contrast, Father failed to attend his regular visits with Chris. Father sometimes did not call caregiver Shannon H. during the scheduled times for virtual visits. Father also missed in-person visits on dates that he requested. Reasons provided by Father included that he missed his flight, booked the wrong flight, or worked an extra shift.
On August 21, 2022, DCFS moved Chris from Shannon H.'s home to new caregivers Ms. Heidy and Mr. Miguel.
On November 15, 2022, Mother then filed a section 388 motion to regain custody of Chris. A section 388 motion allows a parent to petition the juvenile court to set aside any previous order of the court based on changed circumstances or new evidence. (§ 388.) The juvenile court denied the motion to have Chris returned to her custody and instead ordered unmonitored overnight weekend visits and unmonitored two-hour midweek visits.
Mother timely appealed from the juvenile court's denial of her section 388 motion.
In January 2023, DCFS reported that Chris was again placed in foster care with a different caregiver, Ms. R. DCFS "made multiple efforts to preserve all placements for [Chris]," but "due to the child's behavioral challenges, the caregivers were unable to continue to have the child placed in their homes." DCFS further reported that Chris's goal was to be back with Mother and visit with Father during holidays and the summers.
As to Mother's progress, DCFS observed that she had made "great efforts to overcome many of her past family challenges." DCFS further observed that Mother maintained her residence, completed court orders, visited with her children, and was looking for employment. DCFS also noted that Mother had patience with Chris "when he was having an emotional challenge."
As to Father's progress, DCFS reported that he completed 10 of 12 parenting classes, five individual counseling sessions, and two psychological assessments. DCFS further reported that he had been consistent with his virtual phone calls with Chris. Father's last in-person visit with Chris was in September 2022. When DCFS engaged Father to have more consistent in-person visits, Father reported to DCFS "that he has to work and has many personal obligations at this time." DCFS also noted that Father "lack[ed] the follow through when giving updates on his progress in court orders and his travel plans to California to visit with his child." DCFS recommended that the court order Chris returned to Mother's custody and allow Father to have monitored visits with Chris.
At the 12-month review hearing on January 31, 2023, the juvenile court ordered Chris returned to Mother's physical custody. The juvenile court found that Mother complied with her case plan and returning Chris would not be a detriment to his well-being. The juvenile court retained jurisdiction over the case.
On August 16, 2023, while this appeal was pending, the juvenile court awarded Mother sole legal and physical custody of Chris. The juvenile court further ordered that Father have unmonitored virtual contact with Chris at least once a week. Father was also allowed to have unmonitored visits two times per month in Los Angeles. The juvenile court terminated jurisdiction in the same order.
On August 17, 2023, the juvenile court signed the final judgment terminating jurisdiction and ordering full custody to Mother.
On August 31, 2023, we ordered supplemental briefing on whether the appeal is moot in light of the juvenile court's August 16, 2023 and August 17, 2023 orders.
In the same letter, we granted Mother's second motion to take additional evidence or judicial notice of the juvenile court's August 16, 2023 and August 17, 2023 minute orders. (Code Civ. Proc., § 909; Evid. Code, § 452.) We did so to ascertain whether the juvenile court's final orders render the two appeals moot. (In re M.F. (2022) 74 Cal.App.5th 86, 110.) We decline to take judicial notice of the orders in Mother's first motion to take additional evidence or judicial notice because they are not relevant to our decision.
DISCUSSION
I. Both appeals are moot
Mother concedes in her opening brief that her appeal of the juvenile court's denial of her section 388 motion is now moot, because the juvenile court ordered Chris returned to her physical custody at the 12-month review hearing. Mother further concedes in her supplemental brief that the juvenile court's final order granting her full legal and physical custody of Chris also renders her appeal moot. Father maintains that his appeal of the juvenile court's order at the 12-month review hearing denying him shared custody and monitored visits is not moot. We disagree and dismiss both appeals as moot.
"A case becomes moot when events' "render[] it impossible for [a] court, if it should decide the case in favor of plaintiff, to grant him any effect[ive] relief." '" (In re D.P. (2023) 14 Cal.5th 266, 276.) Although an order terminating the juvenile court's jurisdiction may render an appeal from a previous order in the proceedings moot, "dismissal for mootness in such circumstances is not automatic, but 'must be decided on a case-by-case basis.'" (In re C.C. (2009) 172 Cal.App.4th 1481, 1488.)
"[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.) "For relief to be 'effective,' two requirements must be met. First, the plaintiff must complain of an ongoing harm. Second, the harm must be redressable or capable of being rectified by the outcome the plaintiff seeks." (In re D.P., supra, 14 Cal.5th at p. 276.)
We may still decide whether to exercise discretionary review to reach the merits of a moot appeal. (In re D.P., supra, 14 Cal.5th at p. 287.) We generally may exercise that discretion only when the case presents an issue of broad public interest that is likely to recur, the controversy between the parties is likely to recur, or when a material question remains for our determination. (Ibid.)
Because dependency proceedings tend to make appeals prone to mootness, our Supreme Court identified additional factors we may consider when deciding whether to exercise our discretion. (In re D.P., supra, 14 Cal.5th at pp. 284-286.) First, we may consider whether a challenged jurisdiction finding could impact current or future dependency proceedings. (Id. at p. 285.) Second, we may consider whether the allegations against the parent are "particularly pernicious or stigmatizing." (Id. at p. 286.) Finally, "[p]rinciples of fairness" may favor discretionary review of cases rendered moot by, for example, "the prompt compliance or otherwise laudable behavior of the parent challenging the jurisdictional finding on appeal." (Ibid.) In deciding whether to exercise this discretion, we are "guided by the overarching goals of the dependency system: 'to provide maximum safety and protection for children' with a 'focus' on 'the preservation of the family and the safety, protection, and physical and emotional well-being of the child.'" (Ibid.)
As to the first requirement of the mootness inquiry, Father argues he suffers ongoing harm because the juvenile court denied him unmonitored visits and shared custody of Chris at the 12-month review hearing. However, the juvenile court's final custody order granted him unmonitored visits. In his supplemental briefing, Father now argues he suffers ongoing harm because he does not have shared custody of Chris and the visits "were limited to a small amount of time in Los Angeles county."
As to the second requirement of the mootness inquiry, Father cannot show that this harm is redressable because he did not appeal from the juvenile court's order terminating jurisdiction and awarding custody and visitation rights. (In re Gael C. (2023) 96 Cal.App.5th 220.) "[I]n the absence of an appeal from the order that created the restriction he wants revised, he fails to demonstrate that this court can provide any relief that will have' "a practical, tangible impact"' on that legal status." (Id. at p. 225.) "[A]n appeal from the orders terminating jurisdiction and awarding custody is necessary for this court to be able to provide effective relief" because they are final judgments not subject to collateral attack. (In re Rashad D. (2021) 63 Cal.App.5th 156, 164.) To grant Father's request in this appeal that we reverse the order from the 12-month review hearing, we also must reverse the subsequent order terminating jurisdiction and awarding custody and visitation rights.
While In re Gael C. and In re Rashad D. concerned appeals from jurisdictional or dispositional orders, the same reasoning applies here. Father's appeal from the 12-month review hearing order is moot because the August 16, 2023 final custody order superseded the 12-month review hearing order. "Unless the appellate court reverses or vacates the order terminating dependency, the juvenile court has no jurisdiction to conduct further hearings in the now-closed case, including modification of its custody order." (In re Rashad D., 63 Cal.App.5th, supra, at p. 164.) "Because [Father] did not appeal those orders, they are not now before us or otherwise subject to appellate review. And because the juvenile court terminated its jurisdiction over [Chris] and that termination is final, a remand for further proceedings in the juvenile court would be meaningless." (Id. at pp. 164-165.)
Father's appeal does not present circumstances that generally warrant discretionary review of a moot case, such as an issue of broad public interest that is likely to recur, the likelihood of a recurrence of the controversy between the parties, or a material question that remains for the court's determination. (See In re D.P., supra, 14 Cal.5th at p. 282.) Father argues that he is prejudiced by the juvenile court's erroneous findings, but does not specify which findings were erroneous. Father also complains that he will be prejudiced in any current or future dependency proceedings but he does not articulate how or why. (See id. at p. 285.) Such a complaint is speculative, at best. Accordingly, we decline to exercise our discretion to review Father's appeal.
DISPOSITION
Appellants' appeals are dismissed as moot.
WE CONCUR: STRATTON, P. J. GRIMES, J.