Opinion
B308299
07-25-2023
In re DESTINY V., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. DAVID V., Defendant and Appellant.
Benjamin Ekenes, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephanie Jo Reagan, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 20CCJP04335A Nichelle L. Blackwell, Juvenile Court Referee. Dismissed.
Benjamin Ekenes, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephanie Jo Reagan, Principal Deputy County Counsel, for Plaintiff and Respondent.
STRATTON, P. J.
David V. (Father) challenges one of the juvenile court's jurisdictional findings with respect to his daughter, Destiny V. We decline to exercise our discretion to address Father's challenge to the jurisdictional finding and dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Destiny V. is the daughter of Father and Norma B. (Mother). In a first amended petition, the Department of Children and Family Services alleged that Destiny V. came within the jurisdiction of the juvenile court under Welfare and Institutions Code section 300, subdivisions (b)(1) (failure to protect) and (j) (sibling abuse). As to Mother, the petition alleged that Mother's substance abuse and mental and emotional problems rendered her incapable of providing regular care and supervision to Destiny V., subjecting her to risk of physical harm (counts b-1 and b-2), and that three of Mother's other children had been abused or neglected (count j-1). As to Father, the petition alleged that his substance abuse rendered him incapable of providing regular care and supervision to Destiny V., placing her at risk of harm (count b-3).
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
The juvenile court found true all four allegations of the petition and declared Destiny V. a dependent child of the juvenile court. The juvenile court removed Destiny V. from Mother's custody, declined to place her with Father, and ordered the parents to undergo a variety of programs and services.
Father appealed, challenging one of the four jurisdictional findings, the placement order, and the order requiring him to undergo a drug treatment program. On April 20, 2021, while the appeal was pending, the juvenile court found both parents' progress in alleviating the conditions necessitating out of home placement had been substantial and released Destiny V. to her parents. On August 18, 2021, we declined to address Father's challenge to the jurisdictional finding, concluded his appeal of the placement order for Destiny V. was moot, and affirmed the order requiring Father to undergo a drug treatment program. (In re Destiny V. (Aug. 18, 2021, B308299) [nonpub. opn.].)
Although this court was not aware of this development at the time we issued our August 2021 decision, on July 15, 2021, the juvenile court sustained a supplemental petition asserting an additional allegation against Mother, removed Destiny V. from Mother, and terminated juvenile court jurisdiction with a custody order granting Father sole legal and physical custody. We grant Father's request for judicial notice of the minute order and custody order. (Evid. Code, § 451.)
The California Supreme Court granted Father's petition for review, and on April 19, 2023, the Court transferred the matter back to this court with directions to vacate its decision and reconsider the cause in light of In re D.P. (2023) 14 Cal.5th 266 (D.P.). We do so now.
DISCUSSION
I. Appeal of Jurisdictional Finding
Father contends the true finding on the allegation under section 300, subdivision (b)(1) that his substance abuse rendered him incapable of providing regular care and supervision to Destiny V. was not supported by substantial evidence. Father's jurisdictional challenge 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.) Here. the juvenile court terminated jurisdiction over Destiny V. with an order giving Father full legal and physical custody. Therefore, the jurisdictional finding has not formed the basis for any order that is now adversely affecting or curtailing Father's rights. (See D.P., supra, 14 Cal.5th at pp. 277-278 [case is not moot where jurisdictional finding affects custody rights, curtails contact with child, or has resulted in dispositional orders that continue to adversely affect a parent].)
"Even when a case is moot, courts may exercise their 'inherent discretion' to reach the merits of the dispute." (D.P., supra, 14 Cal.5th at p. 282.) The California Supreme Court laid out a non-exhaustive list of factors for assessing whether a court should exercise discretionary review of a moot appeal. (Id. at pp. 285-287.) First, a court may consider "whether the challenged jurisdictional 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 pernicious or stigmatizing conduct." (Id. at pp. 285286 ["The more egregious the findings against the parent, the greater the parent's interest in challenging such findings"].) Third, a court may consider why the case became moot and whether the case became moot due to prompt compliance by parents with their case plan. (Id. at p. 286 ["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. As detailed below, we have considered the factors set forth in D.P., and on balance, they do not support addressing the merits of Father's claim.
As to the first factor, Father claims the jurisdictional finding could impact future family law proceedings if Mother seeks a changed custody order in the future. Even if we reviewed the jurisdictional finding, Father's referral and legal history would not disappear, and the substance of the allegation regarding his conduct would be available in any future family court proceeding regardless of any determination on our part as to whether the evidence was sufficient to support juvenile court jurisdiction under section 300, subdivision (b)(1). Father has not identified, and we do not see, any meaningful prejudice or potential consequences we would dispel by reaching the merits of his moot appeal. (D.P., supra, 14 Cal.5th at p. 287.)
With respect to the second factor, the conduct giving rise to jurisdiction was not particularly pernicious, stigmatizing, or egregious. While all conduct in such matters necessarily involves conduct harmful to children and our assessment of severity or perniciousness is a relative analysis, here the sustained jurisdictional finding was that Father had a history of substance abuse and was a current abuser of illicit drugs; he tested positive for methamphetamines and amphetamines on August 17, 2020; his drug use interfered with and rendered him incapable of providing regular care and supervision to Destiny V.; he had a criminal history of drug-related convictions and was a registered controlled substance offender; and his substance abuse endangered Destiny V.'s physical health and safety and placed her at risk of serious physical harm, damage, and danger. While this finding is serious, we do not consider it so egregious as to merit review. (See D.P., supra, 14 Cal.5th at p. 286; compare with In re M.W. (2015) 238 Cal.App.4th 1444, 1452 [exercising discretion to conduct merits review because findings that Mother "exposed her children to a substantial risk of physical and sexual abuse are pernicious"].)
Finally, for the third factor, Father argues for discretionary review based on the Supreme Court's statement in D.P. that "[w]here a case is moot because one parent appealed and not the other, but the findings against the parent who has appealed are based on more serious conduct, it may serve the interest of justice to review the parent's appeal." (D.P., supra, 14 Cal.5th at p. 286.) That is not the circumstance here. This case is moot at this point not because Mother did not appeal but because jurisdiction has been terminated with an order giving Father complete legal and physical custody of Destiny V. Father argues, "discretionary review of the count (b)-3 finding is appropriate because [M]other did not appeal and because count (b)-3 is the only count concerning [F]ather's conduct." Father does not contend that the findings against him are based on more serious conduct than the findings against Mother, nor would the record support such an assertion: the count sustained with respect to Father concerned his failure to provide regular care and supervision due to his substance abuse, while the counts concerning Mother alleged the inability to care for Destiny V. and her other children due to her substance abuse and mental health problems. While the subdivision (j) allegation alleged that Mother's longstanding substance abuse had also led to her other three children receiving permanent placement services, the actual conduct alleged was not more serious than Father's.
We recognize that Father's prompt compliance with his case plan favors discretionary review. However, no single factor is dispositive, and we must consider all the relevant factors and the totality of the evidence in the record. (D.P., supra, 14 Cal.5th at p. 286.) On balance, after considering all the pertinent factors, the totality of the evidence, and the overarching goal of the dependency system to safeguard children, with a focus on preserving the family and the child's well-being (ibid.), we decline to exercise our discretion to consider the merits of Father's moot appeal.
DISPOSITION
The appeal is dismissed.
We concur: GRIMES, J. WILEY, J.