Opinion
A163190
06-12-2023
In re Z.T., et al. Persons Coming Under the Juvenile Court Law. v. C.T., Defendant and Appellant. CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. Nos. J21-00028, J21-00029, J21-00030)
PETROU, J.
Opinion following transfer from Supreme Court.
C.T. (Father) appealed from juvenile court orders finding jurisdiction over his three minor children under Welfare and Institutions Code section 300, subdivision (b)(1) ("section 300(b)(1)") and disposition orders requiring he engage in family maintenance services. Because the juvenile court vacated the dependencies and dismissed his children's dependency petitions during the pendency of this appeal, we dismissed Father's appeal as moot.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
The Supreme Court granted Father's petition for review and subsequently transferred the matter to us with directions to vacate our prior order and reconsider the cause in light of In re D.P. (2023) 14 Cal.5th 266 (In re D.P.). (In re Z.T. (Apr. 19, 2023, S274842.) We have done so. Because we can provide no effective relief to Father - that is, relief that" 'can have a practical, tangible impact on the parties' conduct or legal status'" (In re D.P., at p. 277) - his appeal is moot. Further, having considered the factors for discretionary review identified in In re D.P., we decline to exercise our discretion to consider this moot appeal.
Factual and Procedural Background
On January 3, 2021, Father and C.V.T. (Mother) reportedly engaged in a violent physical altercation in the presence of their three children in their family home. The dispute began in the kitchen while Father was holding their son C, who was then one year old. After the argument ended and Father left the house, Mother called the police.
According to the summary of the police report prepared by Contra Costa County Children and Family Services Bureau (CFS), Mother told the responding officer that Father, while holding C., punched the right side of her face and pushed her, causing her to fall backwards into the dining table. To defend herself, Mother began pushing, punching, and slapping Father. The fight moved from the kitchen to the living room, where Father put C. down. There, Father grabbed Mother, pulled her to the floor, and sat atop her pinning her to the ground. He continued to slap and punch her, while she scratched him in an effort to get free. Once Mother told Father she could not breathe, he got off. C.'s older sisters - then 9-year old Z. and then 6-year old J. - were sitting on the living room couch during the entire altercation.
Mother told the officer there have been "multiple incidents" but neither she nor Father reported them.
When the responding officer located Father, Father said that Mother wished death on him and cornered him against the kitchen table. He attempted to push her away and slapped her to defend himself. Mother punched him while also hitting C. After they moved to the living room where he put C. down, he grabbed her to prevent her from hitting him further and they both fell to the floor. He pinned her down to prevent her from hitting him, but she struck him 20 to 30 times with her fists and scratched him. He released her once she agreed to calm down. Father stated that his daughters witnessed the incident, but he told them to go upstairs while he was restraining Mother because he did not want them to see what was happening. He told the officer there have been multiple unreported incidents in the past where Mother hit him.
Z. told the officer she and her sister were in the living room watching television when she heard her parents arguing in the kitchen. She heard something hit the dining table and later saw Mother leaning back against the table while Father stood over her holding C. Z. saw Father swing and slap or punch Mother's face and witnessed the two of them push and hit each other. When they moved their fight into the living room, Father grabbed Mother, pulled her to the floor, got on top of her, and punched and slapped her repeatedly. J. told the officer that, from the living room, she heard her parents arguing. In the living room, she saw Father slap Mother as he sat on top of her but could provide no more details. Z. also reported seeing her parents hit each other in the past.
Father was arrested based on the officer's belief that he had been the "dominant/primary aggressor in the incident." Mother did not press charges.
The family was referred to CFS, which opened an investigation. On January 6, 2021, a CFS social worker attempted to interview the children at the house but Mother denied access, only allowing a glimpse of the children from the front door. They were properly dressed and appeared to not have any visible marks or injuries. Mother also refused to speak with the social worker stating the children were safe and not at risk of harm or injury. That same day, the social worker reached out by telephone to Father, who also refused to discuss the alleged domestic violence and stated the allegations were false. When the social worker reached out the following week, Mother again declined to participate in an interview citing COVID concerns, and Father engaged in an extended conversation about the investigation process but did not commit to an interview. When the social worker reached out to Mother a third time, Mother declined the interview and reported that the matter had been resolved and that she had sought forgiveness from God and the children. When the social worker contacted Father a third time the same day, he too indicated he would not cooperate and said he felt he was being deceived. Accordingly, CFS was unable to interview the parents or children regarding the alleged domestic violence altercation.
On January 21, 2021, CFS filed three juvenile dependency petitions against both parents pursuant to section 300(b)(1) for each of the children based upon their exposure to domestic violence. In its detention/jurisdiction report filed several days later, CFS expressed concern that Father and Mother "minimize[d] the impact of repeated exposure to violence[,] increasing concern for the children[']s[] physical health and mental suffering due to domestic violence in the home." In CFS's view, "there [was] a substantial risk to the physical health of the children suffering severe physical and emotional damage" based on the "ongoing and active safety threats of domestic violence likely to injure the children." Without intervention, CFS believed additional incidents of domestic violence would occur and place the children at risk of harm. CFS requested juvenile court oversight given its inability to interview and fully assess the safety of the children. In an effort to prevent further trauma to the children, CFS did not ask to detain the children from their parents' custody but would reassess placement upon completing a fuller evaluation. Even so, CFS recommended Father voluntarily stay elsewhere during the investigation. CFS also recommended both parents enroll in domestic violence, parenting, and anger management classes.
At the detention hearing, the juvenile court noted that typically in cases with this level of domestic violence, there would have been a request for detention and the children would be removed from the home. It observed the case was made very difficult and raised more concerns for CFS due to "an absolute lack of cooperation by the parents." The court also recognized CFS was "bending over backwards" to work with the family to ensure the children could remain safely in their home. Based on counsel's representations to the court that Father and Mother were now willing to engage with CFS, the court ordered a team decision meeting be completed by the family to discuss their support systems and create a safety plan to ensure the children's safety. It also directed the parents to cooperate with CFS on unannounced visits. The court did not order Father to leave the family home given the difficulty of finding a place considering COVID concerns and costs but hoped he would abide by the recommendation to stay elsewhere. The court continued the detention hearing until it had more information.
On January 28, 2021, a few days prior to the next hearing, CFS submitted a memorandum to the court with recent developments. Father had apologized for previously resisting CFS's outreach, accepted responsibility for his behavior, and agreed to a safety plan. There had been a family meeting with CFS. The parents acknowledged they had unaddressed issues related to past trauma and their divergent opinions on household responsibilities and priorities. They were under a lot of stress due to COVID shelter-in-place orders, spending more time at home with each other, the challenges of distance learning, and the loss of contact with their church and support network. With CFS's assistance, they created a safety plan which allowed Father to remain in the home if the parents agreed to stop arguing and physically fighting and instead to use healthy coping skills when conversations escalated. The parents shared that they had utilized some coping skills effectively and that there had not been any violent incidents at the house. In addition, during an unannounced visit, Z. and J. informed social workers that they saw a significant improvement in their parents' behavior and felt "extremely safe" in the family home. The girls expressed sadness and disappointment about their parents' previous fights. However, Z. shared "things in her home have been better and the family has been praying more, playing games together and they recently went out of the home to eat out."
CFS concluded the update as follows: "[Father and mother] have great insight as to what their issues are and are willing to receive the help they need. They are open to participating in marital counseling, family therapy, and anger management classes in order to help them deal with their anger and avoid resorting to physical violence or property destruction.... [They] have agreed to follow up with . . . services and make the necessary changes to be better spouses to each other and better parents to their children. Now that the parents are cooperative . . . the plan will be to continue . . . oversight and make sure the parents follow through with the services [that have been] offered to address the issues that brought them to the attention of [CFS]."
On February 1, 2021, the juvenile court held a "continued detention hearing." CFS confirmed it was not asking the court to detain the children at this time, which the children's counsel supported. Observing that "this case [was] moving in the right direction," the court commended the parents' cooperation and ability to discuss difficult issues and to acknowledge they needed help. It ordered the children remain in parental custody.
On April 5, 2021, CFS filed its disposition report recommending the juvenile court sustain the dependency petition, declare all three children dependents pursuant to section 300(b)(1), maintain the children in parental custody, and award Father and Mother family maintenance services which would allow the children to remain in the home under the supervision of CFS. The report explained: "[CFS] is worried that [Father and Mother] will continue to argue with each other and will escalate to physical violence while in the presence of the children and that violence will affect the children's emotional well-being and put them at continued risk of physical harm. [The parties] have been working on identifying the triggers that cause the disagreements and find[ing] healthy coping skills to deal with stress to avoid the escalation. [Father and Mother] have great insight regarding their situation and although they said they have eliminated the violence from their lives, they are still missing the internal healing.... Although some issues have been resolved, the family continues experiencing new life stressors that are affecting the family functioning. [CFS] acknowledges the hard work the family has been putting in when dealing with an open CFS case and dealing with major milestones in their lives. The children have reported that their parents are following family rules and are arguing less, not cursing as much as before and have incorporated some positive family time. [Father] is actively participating in anger management classes and both [parents] have started parenting classes, however the children have not been assessed or participated in mental health services and the parents have not participated in therapeutic services. [CFS] would like the family to complete all services before the case can be closed.... [CFS] is hopeful this family can accomplish the goals and behavioral changes needed to successfully close the case."
Father filed an "answer" to and motion to dismiss the petition, claiming a lack of evidence and fraud in CFS's investigation. He also asked the court to dismiss the proceeding based upon the parents' cooperation with CFS and his engagement in services over the course of six months.
On June 7, 2021, following a contested jurisdiction and disposition hearing, the juvenile court denied Father's motion to dismiss in part, striking some of the allegations in the original petition. It amended and sustained separate allegations for Father and Mother stating each parent had "placed [each] child at substantial risk of physical harm and neglect" based on (a) the parents' January 3rd physical alteration in the presence of the children, in which Father punched Mother repeatedly while holding C. in his arms; (b) Father's January 3rd arrest for battery on spouse and "willful cruelty to child;" and (c) information of prior domestic violence incidents between [Father and Mother] not reported to police. The court further noted: "The gravamen of this case is [domestic violence] and this has been proved by a preponderance that this incident occurred, that both parents were involved, that the children were present and that at least at the initiation of the incident one of the parents was holding [C.]."
As to disposition, the court stated, "I am mainly in agreement with the recommendations for family maintenance. I believe the children should remain in the home. I also think it's appropriate to see how this case is doing in several months." Accordingly, the court ordered the children to remain in their home with the parents under the supervision of CFS. It also directed each parent to engage in an anger management program, general counseling, and parenting education. The court acknowledged the parents had begun to engage with CFS and to participate in services and that family circumstances have calmed down. In the court's view, however, the January 3rd altercation between the parents was not an isolated incident based on reports from various family members indicating prior incidents of violence between the parents. Thus, "appropriate limited court oversight [was] in order."
On August 2, 2021, Father appealed the juvenile court's jurisdiction and disposition order. Mother did not file an appeal.
On December 13, 2021, a week after Father filed his opening brief, the juvenile court conducted a six-month family maintenance status review hearing in which the court determined the children were no longer persons described by section 300. The court vacated the dependencies and dismissed each child's petition.
We grant CFS's request for judicial notice of the juvenile court's certified minute orders with respect to its six-month status review during which the court found all three children no longer persons described by section 300 and terminated the dependencies. (See Evid. Code, §§ 452, 459; In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1417 [judicially noticing minute order that rendered appellate issue moot].)
Following the Supreme Court's transfer of the case to us for reconsideration in light of In re D.P., supra, 14 Cal.5th 266, neither Father nor CFS filed a supplemental brief, as permitted by California Rules of Court, rule 8.200(b).
Discussion
Father argued that the juvenile court's jurisdictional findings and orders based on his conduct were not supported by substantial evidence. He also contended the court erred by continuing the dependency jurisdiction once he and Mother acknowledged and addressed the problems giving rise to the dependency proceedings, and it abused its discretion when it ordered him to engage in additional unnecessary and unwarranted family maintenance services. CFS argued the December 13, 2021 order vacating the dependencies and dismissing the children's petitions rendered Father's appeal moot. Having reconsidered the matter in light of In re D.P., supra, 14 Cal.5th 266, we again conclude that Father's appeal is moot.
A. Mootness
Generally, an appellate court will dismiss an appeal as moot when events occur during the appeal that render it impossible for the court to grant effective relief. (In re N.S. (2016) 245 Cal.App.4th 53, 60.)
In In re D.P., supra, 14 Cal.5th 266, the Supreme Court explained the mootness doctrine and confirmed it applied to dependency appeals: "A court is tasked with the duty' "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."' [Citation.] 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."' [Citation.] 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." (Id. at p. 276.)
In In re D.P., supra, 14 Cal.5th 266, the juvenile court had terminated its jurisdiction without issuing any order that continued to impact the parents. (Id. at p. 277.) In that context, the Supreme Court held that "relief is effective when it 'can have a practical, tangible impact on the parties' conduct or legal status.' [Citation.] It follows that, to show a need for effective relief, the plaintiff must first demonstrate that he or she has suffered from a change in legal status. Although a jurisdictional finding that a parent engaged in abuse or neglect of a child is generally stigmatizing, complaining of 'stigma' alone is insufficient to sustain an appeal. The stigma must be paired with some effect on the plaintiff's legal status that is capable of being redressed by a favorable court decision." (Ibid.) The Court gave as examples of non-moot challenges to jurisdiction findings cases in which a jurisdiction finding affected parental custody rights, curtailed a parent's contact with his or her child, or resulted in disposition orders that continued to adversely affect a parent. (Id. at pp. 277-278.) The Court expressly held, disapproving contrary case law, that "speculative future harm" is not sufficient to avoid mootness. (Id. at p. 278.)
In this case, we can give no effective relief. The juvenile court has vacated the dependency proceedings with respect to Father's children and dismissed their dependency petitions, thus terminating jurisdiction over Z., J., and C. The children remain in Father and Mother's custody without supervision of CFS, and there is nothing in the record or judicially noticed materials indicating Father continues to be subject to any ongoing orders for family maintenance services. Father has identified no current order from the dependency proceedings which has changed his legal status or that has continued to adversely affect him, and we are not otherwise aware of any from the record. Accordingly, there is no effective relief we can provide Father in his appeal from the jurisdictional findings or orders, so his challenge to them remains moot.
Father argued his appeal was not moot because the court's "erroneous and harmful" findings that he exposed his three children to a substantial risk of serious physical harm within the meaning of section 300(b)(1) "could have 'unfavorable consequences' for [him] 'extending beyond termination of dependency jurisdiction' and may prejudicially 'infect' future dependency and /or family law custody proceedings." He claimed if the court's findings are allowed to stand, he "may be unjustly labeled as a 'child abuser' in the CACI [Child Abuse Central Index]." For these reasons, Father said this court can grant him effective relief and should decide his appeal on the merits. We remain unpersuaded. Father's concerns generally amount to claims of potential future harm and stigma which In re D.P. rejected as grounds for sustaining an appeal.
The CACI is a statewide database of substantiated child abuse reports maintained by the California Department of Justice under the Child Abuse and Neglect and Reporting Act (the "Act"). (See Pen. Code, §§ 1164 et seq.) Under the Act, a county welfare department is required to report to the Department of Justice substantiated cases of known or suspected child abuse or severe neglect. (Pen. Code, § 11169, subd. (a).) In addition, a county welfare department is required to provide written notice to any known or suspected child abuser that he or she has been reported to CACI. (See id. § 1169, subd. (c).)
Father's concern that future dependency or family law proceedings will be impacted if findings are not reversed continues to be speculative. The Supreme Court rejected the same argument in In re D.P., supra, 14 Cal.5th 266. In re Daisy H. (2011) 192 Cal.App.4th 713 (Daisy), had held that the possibility that a jurisdictional finding will have negative consequences for the parent by impacting future dependency proceedings was enough to avoid mootness. (Id. at p. 716.) The Supreme Court, in explaining when a court can provide effective relief in dependency cases, expressly disapproved of the Daisy decision "to the extent it held . . . that speculative future harm is sufficient to avoid mootness." (In re D.P., at p. 278.) Father has not identified any actual future proceedings and asserted only that the court's findings "could have" or "may" impact such hypothetical proceedings. These concerns are still too speculative to require review of his appeal.
Father's concerns about being "unjustly labeled as a 'child abuser'" in the CACI remain tenuous and unsupported by the record on appeal. The Supreme Court rejected a similar argument in In re D.P., supra, 14 Cal.5th 266. It held that the mere possibility of a parent's inclusion in the CACI is not sufficient to give rise to a justiciable controversy. (Id. at pp. 278-282 [parent's CACI concerns "too speculative to demonstrate a specific legal consequence that a favorable judgment could redress" where parent failed to show his inclusion in the CACI or that he will be reported to the CACI in future based on specific allegations in petition].) Father has not claimed that he has been listed in the CACI, and nothing in the record shows that he has been referred to the CACI or received notice of a CACI referral. Nor has he demonstrated that the allegations against him are reportable. As such, Father's CACI concerns are also speculative and provide no reason for us to review the juvenile court's findings and orders. His appeal is therefore moot.
B. Discretionary Review
We must therefore decide whether to exercise our discretion to reach the merits of Father's appeal, despite its being moot. Notwithstanding its reaffirmation of the mootness doctrine in dependency appeals, the Supreme Court in In re D.P., supra, 14 Cal.5th 266, explained: "Even when a case is moot, courts may exercise their 'inherent discretion' to reach the merits of the dispute." (Id. at p. 282.) The Court noted that generally such discretion is exercised when a case presents an issue of broad public interest that is likely to recur, when there may be a recurrence of the controversy between the parties or when a material question remains for the court's determination. (Ibid.)
In the dependency context, the Supreme Court laid out a nonexhaustive list of factors for assessing "whether a court should exercise discretionary review of a moot appeal." (In re D.P., supra, 14 Cal.5th at p. 286.) First, a court deciding whether to exercise discretionary review may consider "whether the challenged jurisdiction finding 'could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings,' or' "could have other consequences for [the appellant] beyond jurisdiction." '" (Id. at p. 285 [citing as examples instances where jurisdictional findings influence the child protective agency's decision to file a new dependency petition or a juvenile court's actions in a subsequent dependency proceeding].) Second, the exercise of discretionary review "may also be informed by whether the jurisdictional finding is based on particularly stigmatizing or pernicious conduct." (Id. at pp. 285-286 ["The more egregious the findings against the parent, the greater the parent's interest in challenging such findings."].) Third, a court may consider whether the case became moot due to prompt compliance by parents with their case plan. (Ibid. ["It would perversely incentivize noncompliance if mootness doctrine resulted in the availability of appeals from jurisdictional findings only for parents who are less compliant or for whom the court has issued additional orders."].)
We decline to exercise our discretion to decide Father's appeal. At the outset, we emphasize that Father has not submitted any supplemental briefing following transfer addressing any of the factors we must consider when determining whether to exercise our discretion. As detailed below, we have considered the factors set forth in In re D.P., and on balance, they do not support addressing the merits of Father's claim.
As to the first factor, the possible future consequences Father previously identified were highly speculative. He has not identified any actual current or future dependency proceedings that could be impacted by the jurisdictional orders.
As to the second factor, we do not find the jurisdictional findings against Father to be based on particularly stigmatizing or pernicious conduct, understanding that all conduct in such matters necessarily involves conduct harmful to children and our assessment of severity or perniciousness is a relative analysis. The jurisdictional findings challenged on appeal were that Father had "placed [each] child at substantial risk of physical harm and neglect" based on (a) the parents' January 3rd physical alteration in the presence of the children, in which Father punched Mother repeatedly while holding C. in his arms; (b) Father's January 3rd arrest for battery on spouse and "willful cruelty to child;" and (c) information of prior domestic violence incidents between [Father and Mother] not reported to police. While these findings are serious, we do not consider them so egregious to merit review. (See In re D.P., supra, 14 Cal.5th at p. 286.)
In In re D.P., supra, 14 Cal.5th 266, the Supreme Court cited In re M.W. (2015) 238 Cal.App.4th 1444, 1452 (In re M.W.) as an example of a case involving egregious or pernicious conduct. (In re D.P., at p. 286.) In In re M.W., supra, 238 Cal.App.4th 1444, the mother challenged findings that she knowingly or negligently exposed her children to a substantial risk of both physical and sexual abuse. (Id. at p. 1452.) The petition had alleged the children's father had sexually assaulted a minor child and that the mother knew or should have known about the criminal conduct but allowed the father to access the children. (Id. at p. 1451.) The In re M.W. court noted that the finding "that mother failed to protect the children from a substantial risk of sexual abuse" carried "a particular stigma." (Id. at p. 1452.)
Here, Father's conduct, while no doubt harmful, did not involve exposing the children to any sexual abuse or risk of sexual abuse. While we deplore the fact that C. was in Father's arms while he engaged in a fight with Mother, there was no evidence that Father's conduct targeted C. or any of his children during the domestic violence incident. There was also no evidence that Father ever struck or physically harmed the children. We also are aware that the domestic violence incident occurred when the couple were under a great deal of stress due to COVID shelter-in-place orders during which they spent more time at home together, managed distance learning for small children, and suffered the loss of contact with their church and support network. Also factored into our assessment is the absence of any prior welfare history for the children. In addition, Father was able to address the issues that concerned CFS to the court's satisfaction by the six-month hearing, bringing the dependency to a relatively timely conclusion.
We identify this as merely one aspect of Father's conduct. We do not suggest that for conduct to be egregious or pernicious, it must include some form or threat of sexual abuse.
Finally, for the third factor, we consider whether the reason the appeal has been rendered moot weighs in favor or against discretionary review. The Supreme Court noted that where a case becomes moot because of "prompt compliance by parents with their case plan" discretionary review may be especially appropriate. (In re D.P., supra, 14 Cal.5th at p. 286.) Father and Mother's compliance with their case plan appears to have been the reason that led to the conclusion of the dependency proceedings, which weighs in favor of discretionary review. But In re D.P. directs us not to consider an individual factor in isolation. (Ibid. ["no single factor is necessarily dispositive of whether a court should exercise discretionary review of a moot appeal"].) On balance, after considering all the pertinent factors and the totality of the evidence in the record, we conclude discretionary review of Father's moot appeal is not warranted.
Disposition
Father's appeal is dismissed as moot.
WE CONCUR: Tucher, P.J., Rodriguez, J.