Opinion
B306887
03-08-2021
In re CYNTHIA E., A Person Coming Under Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. C.E., Defendant and Appellant.
William Hook, under appointment by the Court of Appeal, for Defendant and Appellant mother. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19CCJP05614) APPEAL from a judgment of the Superior Court of Los Angeles County, Victor G. Viramontes, Judge. Dismissed. William Hook, under appointment by the Court of Appeal, for Defendant and Appellant mother. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
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Mother appeals the juvenile court's order assuming jurisdiction over her 17-year-old daughter. Mother argues substantial evidence does not support the court's findings that she abused and neglected daughter because at the time of the jurisdictional hearing, daughter was no longer at risk of harm as she was residing safely with maternal grandmother. While this appeal was pending, daughter turned 18 years old, and the juvenile court terminated jurisdiction over her. The Department of Children and Family Services (Department) argues these subsequent events rendered mother's appeal moot, and ask us to dismiss the appeal as we can no longer provide any effective relief to mother. We agree with the Department and dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
On August 1, 2019, mother called law enforcement to have daughter arrested. Mother said daughter had pushed her. Daughter stated that mother was trying to throw her belongings out of the home, and had called daughter "retarded" and a "stupid bitch." When daughter locked herself in the bedroom, mother tried to force her way in and grabbed daughter, scratching her. Law enforcement responded to the scene, but after they left, mother locked daughter out of the home at 9:30 p.m. Daughter went to stay with her aunt that night.
The following evening, mother and daughter went to a movie theater where they got into an argument. Mother then left daughter at the theater at approximately 11:00 p.m. Daughter called law enforcement who, in turn, attempted to contact mother numerous times on her phone. Mother did not answer or return their calls. Law enforcement and a social worker from the Department separately went to mother's apartment during the night and knocked on the door, but mother did not answer.
The following day, daughter returned to mother's home, and mother spoke with the social worker. Mother denied leaving daughter at the movie theater, saying daughter had refused to get in the car and had "walked away." However, daughter had recorded part of the incident, and the video showed mother repeatedly telling daughter, " 'You're not allowed to come to my house.' " After daughter warned mother about "trying to kick [her] out again," mother responded, "I ain't fucking worried about a got [sic] damn thing. Don't you get that through your head yet?"
Three weeks later, in late August 2019, mother called the police and said daughter had hit her. Mother acknowledged she " 'may have hit [daughter] in the face.' " Daughter denied attacking mother, and said mother had grabbed her by the hair, used a textbook to hit her on the head, and punched her in the back. Mother had also been "violent" with her before.
Daughter's younger sibling also said mother and daughter "use[d] their hands to hit one another." Maternal aunt had witnessed blood on daughter's face after the fight and "marks and bruising on the child's body." The Department removed daughter, and initially placed her in a foster home. She later moved in with maternal grandmother.
On August 29, 2019, the Department filed a petition alleging mother physically abused daughter. The petition further alleged neglect based on mother having excluded daughter from the family home. The juvenile court detained daughter, and ordered monitored visits with mother.
The petition also alleged neglect of mother's younger child. The court struck these allegations at the jurisdiction hearing. Mother's younger child is not a subject of the current appeal.
By the time of the jurisdiction hearing almost a year later, daughter was still living with maternal grandmother. Daughter testified at the hearing that mother had hit her with a textbook, slapped her and punched her. She did not feel safe in mother's home. Mother testified that daughter had attacked her, and mother had simply tried to push daughter away. In doing so, mother may have accidentally scratched daughter's face. Mother denied hitting daughter or causing her injuries. Mother planned to have daughter return home immediately should the juvenile court decline to take jurisdiction.
The court sustained the allegations of abuse and neglect. As to disposition, mother's counsel informed the court that mother wanted daughter returned to her custody. The court ordered daughter to remain with maternal grandmother, and ordered family reunification services. Mother timely appealed.
One week after the court sustained jurisdiction, daughter turned 18 years old. On August 20, 2020, the court terminated mother's reunification services, ordered that daughter receive non-minor dependent services, and initiated a non-minor dependent case. The court terminated juvenile court jurisdiction the next month. Mother timely appealed.
We have taken judicial notice of the juvenile court's orders terminating jurisdiction and opening a non-minor dependency case.
DISCUSSION
Mother does not dispute that substantial evidence supported the court's factual findings she physically abused daughter and neglected her. Instead, mother argues only there was insufficient evidence daughter remained at risk of harm at the time of the jurisdictional hearing because daughter was safely living with maternal grandmother. Mother does not respond to the Department's argument that her stated intent to regain custody of daughter placed the minor at risk.
The Department also argues that the juvenile court's termination of jurisdiction renders this appeal moot. Mother disagrees, and contends the appeal is not moot because the jurisdictional findings could have adverse consequences in any future dependency proceedings involving her younger child. In the alternative, she argues the court should exercise its discretion to reach the merits because " 'there is a likelihood of recurrence of the controversy between the same parties or others' "—namely, that the Department will "continue to improperly pursue jurisdiction" in order to provide dependents that are aging out of the system with non-minor dependent services. (In re N.S. (2016) 245 Cal.App.4th 53, 59.)
"As a general rule, an order terminating juvenile court jurisdiction renders an appeal from a previous order in the dependency proceedings moot. [Citation.] However, 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., supra, 245 Cal.App.4th at p. 60.) A court may also "exercise its inherent discretion to resolve an issue when there remain 'material questions for the court's determination' [citation], where a 'pending case poses an issue of broad public interest that is likely to recur' [citation], or where 'there is a likelihood of recurrence of the controversy between the same parties or others.' [Citation.]" (Id. at p. 59.)
Here, we cannot grant any effective relief to mother. Even if we were to reverse the jurisdictional findings, the dismissal order based on daughter having attained the age of majority would stand. Her appeal is therefore moot.
We also decline to exercise our jurisdiction to review the jurisdictional findings, concluding that mother's arguments about potential prejudice are without merit. In asserting that the jurisdictional findings could prejudice her in any future dependency proceedings concerning her younger child, mother sets forth three scenarios: the jurisdictional findings (1) "could serve as the basis for a detriment finding under Welfare and Institutions Code section 361.2 if one of the parents is non-custodial and requests custody of the child (§ 361.2, subd. (a))," (2) "could be the basis for the court to bypass [mother] for services under section 361.5, subdivision (b)(10)," and (3) "could be used as a basis for formulating the parent's case plan in a future dependency proceeding" including "when determining visitation or custody rights." We address each in turn.
All further undesignated statutory references are to the Welfare and Institutions Code.
Mother's argument that the juvenile court's assertion of jurisdiction could serve as the basis for detriment finding under section 361.2, subdivision (a) (§ 361.2(a)) has no merit. Under section 361.2(a), if a juvenile court orders removal of a child from parental custody under section 361, subdivision (c), and there is a previously non-custodial parent who desires custody, "the court shall place the child with the [non-custodial] parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child." (§ 361.2(a).) In other words, when the court has already decided to remove a child from her custodial parent, the court must then place a child with a non-custodial parent unless it would be detrimental to the child to be with the non-custodial parent. Mother is the custodial parent of younger child. Any detriment finding under section 361.2(a) would concern the fitness of the non-custodial parent to care for the child, and only after the court had already made the decision to remove the child from mother's care.
Mother next cites to section 361.5, subdivision (b)(10) (section 361.5(b)(10)), arguing that under this statute she risks being "bypassed" for services in any future dependency proceeding. Section 361.5(b)(10) provides that, "[r]eunification services need not be provided to a parent . . . when the court finds, by clear and convincing evidence . . . [t]hat the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling . . . after the sibling . . . had been removed from that parent [] pursuant to Section 361 and that parent [] is the same parent [] described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian." (Italics added.)
Section 361.5(b)(10) applies when the court has previously terminated reunification services for a parent "because" the parent failed to reunify with a sibling. It is therefore based on a parent's failure to successfully complete reunification services, not on a jurisdictional finding. Here, the court terminated reunification services one month after ordering them because daughter turned 18 years old, not because mother had failed to reunify. Section 361.5(b)(10) would be inapplicable. (See Marshall M. v. Superior Court (1999) 75 Cal.App.4th 48, 56 [describing the first prong of 361.5(b)(10) as applying when "the parent has previously failed when given a chance at reunification services. [Citation.] Under section 361.5, subdivision (b)(10)(A), the parent had an opportunity to reunify and failed"]; In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478 [same].)
Lastly, mother contends the juvenile court could consider the adverse jurisdictional findings here when crafting a "case plan" concerning custody or visitation in any future dependency proceeding. Such a potential adverse consequence is speculative. If the juvenile court in a future dependency proceeding sustained allegations of abuse or neglect as to mother's younger child, those findings and related current conditions would form the primary basis for the disposition order regarding mother's contact with that child. (See, e.g., § 361, subd. (c) [removal of a dependent child from her custodial parent is warranted when the court finds a substantial danger at that time if the child were returned home].)
Mother has not identified any concrete future impact in support of her argument that the court's findings could "be used against her in any future dependency proceedings." (See In re N.S., supra, 245 Cal.App.4th at pp. 62-63 ["We see no reason to review the juvenile court's jurisdictional findings here on the basis of such speculation or caution. [¶] . . . [¶] [And w]e are unconvinced . . . that any ruling we could issue here would have any practical effect on future dependency proceedings"]; In re I.A. (2011) 201 Cal.App.4th 1484, 1494-1495.) Because we find no prejudice to mother, we decline to exercise our discretion to review the jurisdictional findings.
Lastly, mother has not shown there is a likelihood of recurrence of the controversy such that it would be proper for this Court to exercise our discretion to reach the merits. She argues "the sole purpose of the court's jurisdictional finding was to get [daughter] into non-minor dependent services, not to protect the child," and "if this Court does not exercise discretion to resolve this issue, the department may feel free to continue to improperly pursue jurisdiction in similar cases." This case, on its face, does not demonstrate that the Department improperly pursued jurisdiction despite a lack of current risk to the child. Although mother argues there was no risk to the child who was safely residing with maternal grandmother, the record contains evidence that mother continued to seek the return of daughter to her custody.
DISPOSITION
The appeal is dismissed.
RUBIN, P.J. WE CONCUR:
MOOR, J.
KIM, J.