Opinion
B320964
09-29-2023
In re L.P. et al., Persons Coming Under the Juvenile Court Law. v. S.A., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
William Safford, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Jessica Buckelew, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from jurisdictional finding and order of the Superior Court of Los Angeles County No. 22LJJP00060, Donald A. Buddle, Jr., Judge. Affirmed.
William Safford, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Jessica Buckelew, Deputy County Counsel for Plaintiff and Respondent.
MOOR, J.
Mother appeals the juvenile court's April 4, 2022 order declaring her child (minor) a dependent under Welfare and Institutions Code section 300, subdivision (b)(1). Respondent Los Angeles County Department of Children and Family Services (Department) contends mother's appeal is moot, and alternatively that the jurisdictional finding is supported by substantial evidence. We affirm.
All statutory references are to the Welfare and Institutions Code, unless stated otherwise.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and father are separated and have one child together: minor (born May 2015). Around 7 p.m., on January 29, 2022, law enforcement stopped mother after observing her drive through a stop sign at 55 miles per hour. During the traffic stop, the officer detected a strong smell of alcohol and noticed mother's eyes were red and watery. Minor was not in a car seat. Mother claimed her car was not working, she had to borrow a friend's car to pick minor up, and the borrowed car did not have a car seat. When asked how many alcoholic beverages she had consumed, mother responded she had a beer around noon that day. Mother failed three field sobriety tests, and breath samples at the scene measured her alcohol levels at .159 and .151. The arresting officer released mother and minor to mother's roommate and recommended charging mother with driving under the influence (DUI) (Veh. Code § 23152, subds. (a) and (b)); DUI with a minor passenger (Veh. Code § 23572, subd. (a)(1)); child endangerment (Pen. Code § 273a, subd. (a)); and driving on a suspended license (Veh. Code § 14601.1, subd. (a)).
Speaking with an investigating social worker on January 31, 2022, two days after the DUI incident, mother appeared sober, denied any substance abuse, and said she would be willing to drug test. Mother denied any mental health diagnosis, but said she was going to start therapy because she needs someone to talk to. Mother reported she had full custody of minor because father sexually molested minor three years earlier. The family court gave father monitored visits, and father had parenting classes and PCIT (parent child interactive therapy). Father was recently awarded unmonitored visits on alternate weeks, but no overnight visits. Discussing the DUI, mother reported it occurred on the first day minor had an unmonitored visit with father. She had a couple of beers and a huge margarita for lunch, but she took a nap and thought she was okay to drive because five hours had passed. It was an isolated incident, and she wished the whole situation had never occurred. She stopped drinking around 2:30 p.m. and went to pick up minor from father's at 6:45 p.m. When she saw father and his new girlfriend, she began to feel anxious and nervous because father and the girlfriend were taunting her. She was so distracted she ran the stop sign. Mother said she did not have a car seat because she had her roommate's car, not hers. Mother reported she was homeschooling minor. Mother was unaware that minor needed to be in a homeschooling program, but after being informed by the social worker, she said she would look for one.
The social worker observed that minor had a lisp and appeared to be in need of speech therapy. Minor reported getting frustrated with her mother at times.
Mother's roommates, a married couple, reported that mother is a good mother, and that the DUI was an isolated incident. The roommate who picked mother up that evening said the car mother was driving did not belong to the family, and he did not know who the car belonged to.
Father did not want to elaborate on the prior allegations of sexual abuse, but said he and mother were going through family law and the judge was using the step system for visitation, and the next step is for father to have overnight visits with minor. Father said mother has been "extremely emotional" since unmonitored visits started.
On February 11, 2022, the Department filed a petition under section 300 alleging that minor was at risk of serious physical harm because mother drove a vehicle with minor not restrained in an appropriate child seat while mother was under the influence of alcohol, with a blood alcohol level of .15, and mother failed to stop at a stop sign, resulting in mother's arrest for a DUI.
At an initial hearing on February 16, 2022, the Department announced it was not seeking to detain minor, and the preexisting custody arrangement under the family law order should remain in place pending further investigation. Minor's counsel noted that the family law order was not yet available, but keeping the status quo was acceptable. The court released minor to mother, ordering her to cooperate with the Department and not be under the influence.
Mother did not respond to the dependency investigator's attempts to reach her on March 4 and 7, 2022, and only responded on March 11, 2022 after being prompted by a social worker. When the social worker asked how mother had three drinks if she usually doesn't drink, mother said it was an emotional day and she was mentally in a very bad place. Mother said minor was with father" 'for the first time, not in a public place, not monitored. I had a couple margaritas at lunch because I was crying and crying. I was so afraid for her. It was my mistake.'" Mother provided a family law minute order from March 2019 temporarily restricting father's visits to monitored, as well as an unsigned order from a January 19, 2022 hearing liberalizing father's visits to unmonitored visits on alternate Saturdays, increasing to alternate weekends after 10 successful visits. Asked about her suspended driver's license, mother reported her license lapsed during COVID and she had difficulty getting insurance, but she was working on it.
Father explained that the day of mother's DUI was a hard day for mother because it was the first unmonitored visit. According to father, while he did not know mother to drink or get drunk, mother had "disappeared" when her request for a restraining order had been denied, and only started complying with visitation after the family court had issued an arrest warrant. Father explained that it took two years to get to unmonitored visits, in part because of COVID, but also because mother was not coming to court.
At the April 4, 2022 adjudication hearing, mother submitted documentation showing she had enrolled minor in a homeschooling program, recently completed two online classes (an 8-hour drug and alcohol awareness class in early April 2022 and a 6-hour parenting class in March 2022), and attended three online AA meetings in late March and early April 2022. Mother asked for a continuance so the results from her weekly drug testing would be available, but the court denied the continuance. The parties' argument focused on the similarities or differences between mother's circumstances and those in In re J.N. (2010) 181 Cal.App.4th 1010 (J.N.), a case that involved parents and their children who were involved in an automobile accident while both parents were intoxicated, one was driving, and the children were not properly fastened in their seats. Minor's counsel and the Department argued for sustaining the petition against mother, noting the role mother's anxiety played in her decision to drink. Mother asked the court to dismiss the petition. Her attorney acknowledged the circumstances of mother's DUI, but emphasized it was an isolated incident and mother had taken full responsibility for her actions. Reasoning that mother's anxiety stemmed from the family law case and father's unmonitored visits, the court found the situation to be different from J.N., and sustained the petition allegations. Minor would remain in mother's custody, with family maintenance services for mother and enhancement services for father. Mother filed a timely notice of appeal.
On June 24, 2022, the juvenile court terminated jurisdiction over the children and entered a custody order granting mother and father joint legal and physical custody, with minor's primary residence in North Carolina with mother, and father having weekly video or phone contact and weeklong visits during school breaks totaling 52 days.
DISCUSSION
Mootness and Discretion to Review
"Juvenile dependency appeals raise unique mootness concerns because the parties have multiple opportunities to appeal orders even as the proceedings in the juvenile court proceed." (In re N.S. (2016) 245 Cal.App.4th 53, 59.)" '[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 Rashad D. (2021) 63 Cal.App.5th 156, 163; see In re D.P. (2023) 14 Cal.5th 266, 275.) An" 'appeal may become moot where subsequent events, including orders by the juvenile court, render it impossible for the reviewing court to grant effective relief.'" (Rashad D., at p. 163.) "A reviewing court must"' "decide on a case-by-case basis whether subsequent events in a juvenile dependency matter make a case moot and whether [its] decision would affect the outcome in a subsequent proceeding." '" (D.P., at p. 276.)"' "When no effective relief can be granted, an appeal is moot and will be dismissed." '" (In re J.A. (2020) 47 Cal.App.5th 1036, 1050-1051.)
Even when a case is moot, a court may exercise its "inherent discretion" to reach the merits of the dispute. (In re D.P., supra, 14 Cal.5th at p. 282.) Discretionary review generally is appropriate only when a case presents an issue of broad public interest that is likely to recur, when the controversy between the parties may recur, or when a material question remains for the court's determination. (Ibid.) The Supreme Court in D.P. identified several non-exhaustive additional factors for evaluating whether discretionary review of a moot case may be warranted. (Id. at pp. 284-286.) First, the court may consider whether the challenged jurisdiction finding could impact current or future dependency proceedings, for example, by influencing the child protective agency's decision to file a new dependency petition or the juvenile court's determination about further reunification services. (Id. at p. 285.) Second, the court may consider the nature of the allegations against the parent: "The more egregious the findings against the parent, the greater the parent's interest in challenging such findings." (Id. at p. 286.) Third, the court may consider whether the case became moot due to prompt compliance by parents with their case plan: "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." (Ibid.)
We agree with the Department that mother's appeal of the jurisdiction order is moot because mother did not appeal the later order terminating dependency jurisdiction and awarding joint physical and legal custody with specified visitation. (Rashad D., supra, 63 Cal.App.5th at p. 164 ["in addition to the appeal from the jurisdiction finding, an appeal from the orders terminating jurisdiction and awarding custody is necessary for this court to be able to provide effective relief'].) However, because minor is still quite young, and custody orders may change as she gets older, we exercise our discretion to consider mother's appeal, because the challenged finding could play a role in future family law custody proceedings.
Evidentiary Support for Jurisdictional Finding
Jurisdictional findings are reviewed for substantial evidence and will be affirmed where there is reasonable, credible evidence of solid value to support them. (In re Jonathan B. (2015) 235 Cal.App.4th 115, 119.)"' "In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." [Citation.] "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court. [Citations.]' "[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find [that the order is appropriate]." '" '" (In re I.J. (2013) 56 Cal.4th 766, 773.) "Thus, we do not consider whether there is evidence from which the juvenile court could have drawn a different conclusion but whether there is substantial evidence to support the conclusion that the court did draw." (In re M.R. (2017) 8 Cal.App.5th 101, 108.)
Under section 300, subdivision (b)(1), the court may exercise jurisdiction over a child who has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness as a result of the failure of the parent to adequately supervise or protect the child or to provide regular care for the child due to the parent's substance abuse. (§ 300, subd. (b)(1).)
Citing J.N., supra, 181 Cal.App.4th 1010, mother contends that the "single, isolated incident" that led to the dependency petition cannot support dependency jurisdiction. In J.N., a father drove under the influence with his three children and intoxicated wife, and crashed into a light pole. (Id. at p. 1014.) The J.N. court held jurisdiction under section 300, subdivision (b) cannot rest solely on a single past incident resulting in physical harm; instead, there must be some reason to believe there is a current or future risk to a child. (Id. at p. 1023.)
Mother's analogy to J.N. is inapt here, because the record shows mother had a history of maladaptive responses to stressful or challenging situations, and the court could reasonably infer that as father's visitation rights continued to expand, there was a substantial risk that mother might again place minor at risk. When questioned by the law enforcement officer, mother had lied about how much she had to drink, claiming she had only one beer more than six hours earlier. There were also discrepancies in mother's explanation for why she was driving a different car and it is unclear from the record whether mother was driving on a suspended license. Mother delayed responding to the dependency investigator after the initial hearing. While the DUI occurred in late January 2022, mother did not start attending AA meetings until late March 2022, less than a week before the adjudication hearing. The timing of mother's completion certificates is similarly close to the hearing, supporting an inference that mother was more focused on satisfying the court than addressing the root issue. Despite mother's stated intention in late January to start therapy, there was no evidence that mother had done so or taken any steps to address her anxiety about minor's unmonitored visits with father. In addition, when she had sole physical custody of minor, father's efforts to reinstate unmonitored visits were delayed because mother was so disengaged that the family court had to issue an arrest warrant to get mother to respond. Viewing these facts in the light most favorable to the juvenile court's decision, we find substantial evidence to support the court's jurisdictional finding.
DISPOSITION
The jurisdictional finding and order are affirmed.
I concur: RUBIN, P. J.
BAKER, J., Dissenting
I agree with the majority that this appeal is moot. I, however, would dismiss the appeal and decline to exercise this court's discretion to decide the moot issue.
The sole justification the majority offers to reach the merits of this moot case is the contention that the child in question is "still quite young" and "the challenged jurisdiction finding could play a role in future family law custody proceedings." If that rationale is to be the rule for when the justices in the majority will exercise their discretion to decide moot issues, I predict they will have difficulty following the rule in future dependency cases or rue the day they adopted it-for it will open the floodgates of moot appeals they will be compelled to decide on the merits with little, if any, practical effect. A great many dependency cases involve young children, and it almost always can be said that a dependency jurisdiction finding "could play a role" in future custody proceedings.
In re D.P. (2023) 14 Cal.5th 266 explains "no single factor is necessarily dispositive of whether a court should exercise discretionary review of a moot appeal." (Id. at 286.) The Supreme Court's opinion also counsels that "[u]ltimately, in deciding whether to exercise its discretion, a court should be 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 as well as the safety, protection, and physical and emotional well-being of the child.'" (Ibid.) Reaching the merits in this case does nothing to advance the overarching goals of the dependency system (the majority affirms the jurisdiction finding), and I would dismiss this appeal rather than reach to decide S.A.'s jurisdiction argument for the single reason the majority offers.