Opinion
F085708
09-21-2023
In re DANIEL S. et al., Persons Coming Under the Juvenile Court Law. v. AMANDA S., Defendant and Appellant. MADERA COUNTY DEPARTMENT OF SOCIAL SERVICES/CHILD WELFARE SERVICES, Plaintiff and Respondent,
Sarah Vaona, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. -ooOoo-
NOT TO BE PUBLISHED
APPEAL from orders of the Super. Ct. Nos. MJP018623 &MJP018757 of Madera County. Thomas L. Bender, Judge.
Sarah Vaona, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent. -ooOoo
OPINION
THE COURT [*]
Amanda S. (mother) appeals from the juvenile court's January 31, 2023 jurisdiction and disposition orders declaring her sons, then two-year-old Daniel S. and one-year-old M.S., dependents, placed the children in mother's custody, and ordered family maintenance services for her. After reviewing the juvenile court record, mother's court-appointed counsel informed this court she could not find any arguable issues to raise on mother's behalf. This court granted mother leave to personally file a letter setting forth a good cause showing that an arguable issue of reversible error exists. (In re Phoenix H. (2009) 47 Cal.4th 835, 844 (Phoenix H.).)
The children had different alleged fathers. Although genetic testing to establish paternity was ordered for them, the testing was not completed during the proceedings and neither father's status was elevated beyond being alleged fathers. Consequently, they were denied services. Neither father appealed.
Mother filed a letter brief in which she asserts the juvenile court erroneously ordered her to drug test, the jurisdictional findings are not supported by substantial evidence, procedural errors occurred that undermined the fairness and integrity of the proceedings, her trial counsel was ineffective, the juvenile court committed legal errors and abused its discretion in making certain rulings, and her parental rights were violated.
While mother's appeal was pending, the juvenile court terminated family maintenance services, granted mother sole legal and physical custody of the children, dismissed the dependency petition, and terminated dependency jurisdiction. We dismiss the appeal as moot.
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of the Madera County Department of Social Services (department) at Daniel's birth in November 2020, when he was taken into protective custody due to allegations mother abused methamphetamine and marijuana during her pregnancy. The department filed a petition alleging mother placed Daniel at risk of harm because she tested positive for methamphetamine and marijuana at his birth. (Welf. &Inst. Code, § 300, subd. (b)(1) [failure to protect].)
Undesignated statutory references are to the Welfare and Institutions Code.
Following a contested detention hearing, the juvenile court detained Daniel. After multiple continuances, the contested jurisdiction hearing began on August 31, 2021, and a continued hearing was set for September 14, 2021. Before the hearing could be completed, mother gave birth to M.S. (the baby). The department filed a petition as to the baby alleging he came within the provisions of section 300, subdivisions (b)(1) and (j), based on mother testing positive for methamphetamine and marijuana at the baby's birth, the baby testing positive for amphetamine, and his brother's circumstances. The baby, who was taken into protective custody, was expected to remain in the neonatal intensive care unit for about two weeks as he was premature with underdeveloped lungs.
The contested jurisdiction hearing concerning Daniel was completed on October 20, 2021. The juvenile court found the petition's allegations were not true and not proven and ordered the department to immediately return Daniel to mother.
After a contested detention hearing for the baby, the juvenile court ordered the baby detained from mother, and that mother have supervised visits with the baby and be provided substance abuse and mental health evaluations, and random drug testing. The juvenile court set a contested jurisdiction hearing for November 17, 2021, which was later continued to January 12, 2022.
On October 28, 2021, the department filed a new petition concerning Daniel which alleged he came within the provisions of section 300, subdivisions (b)(1) and (j) based on mother's abuse of methamphetamine and marijuana during her pregnancies with Daniel and the baby, mother's refusal to drug test for the department on October 20 and 25, 2021, and the baby's circumstances. The department recommended that Daniel, who was in mother's custody, be detained. A contested detention and jurisdiction hearing was set.
On November 15, 2021, the department filed a first amended petition as to the baby which added allegations under section 300, subdivision (b)(1) that mother's methamphetamine use led to the baby's premature birth and deleted the section 300, subdivision (j) allegation.
On December 30, 2021, mother's attorney filed a motion to dismiss the October 28, 2021 petition concerning Daniel on the ground it was barred by claim preclusion because the allegations were the same as those in the dismissed petition. In response, the department argued the two petitions did not contain the same allegations, as the new petition was based on the new information, namely, the circumstances of the baby's birth and the juvenile court's detention finding that the baby was at risk of abuse or neglect due to mother's methamphetamine use.
A contested hearing on the issues of jurisdiction for both children, detention of Daniel, and mother's motion to dismiss Daniel's case, began on January 12, 2022. The juvenile court first addressed the motion to dismiss and denied the motion after hearing argument from counsel. The department submitted on its reports, which were admitted over the objection of mother's attorney. Mother's attorney called an expert in pharmacology, who testified that the baby's drug test results were unreliable. The hearing was continued to January 26, 2022.
At the continued hearing, the juvenile court granted the department's motion to reopen to submit an addendum report concerning the baby's ongoing medical issues, which it admitted over mother's attorney's objection. The department called the doctor who delivered the baby to testify as an expert in obstetrics and gynecology, as well as neonatal resuscitation, including the use of illicit substances of mothers of newborns and how it affects perinatal care. The juvenile court continued the hearing to March 2, 2022, so the parties could brief an issue concerning the admissibility of the details of a prior medical disciplinary action concerning the doctor, which mother's attorney wanted to use to impugn the doctor's credibility.
The department filed an addendum report which stated mother had not completed any drug tests from October 2021 through February 2022. When the social worker visited mother's residence in January 2022, mother declined to drug test because she claimed the medication that she was taking would cause a false positive for methamphetamine.
At the March 2, 2022 hearing, the juvenile court denied mother's attorney's request to allow testimony concerning the doctor's disciplinary action or to admit the disciplinary record. The hearing was continued several times, with the juvenile court issuing its ruling on May 3, 2022.
At the outset of the May 3, 2022 hearing, the juvenile court relieved mother's counsel after mother asked to represent herself. Mother argued that no new evidence was presented to support the allegations since Daniel's matter was dismissed, and from her expert's testimony it was likely her medication caused the positive drug tests, noting she passed 15 drug tests. Mother further argued that drug use, without more, was insufficient grounds for jurisdiction and the cases had exceeded the statutory timeframe.
The juvenile court found the petitions' allegations true, finding mother used illegal drugs for a period of time and her behavior posed a risk of abuse or neglect to the children. A disposition hearing was set for May 17, 2022. The juvenile court denied the department's request to detain Daniel and gave the department discretion to return the baby to mother.
For the disposition hearing, the department recommended that the children be removed from mother's custody and family reunification services ordered for her. Mother reportedly continued to refuse to drug test through May 2022, and did not permit the social worker to enter her home to assess it for safety. The department later reported mother continued to "no show" for her drug tests from May 2022 through November 2022.
The disposition hearing was continued multiple times and ultimately began on January 24, 2023. Mother was represented by counsel, who was appointed for her at her request in July 2022, and replaced twice due to conflicts of interest. The department submitted on the reports, which were admitted into evidence over mother's objection. Mother did not have any evidence to offer.
County counsel asserted the department continued to recommend removal of the children with family reunification services to mother because, while mother had completed some services since the jurisdiction hearing, the department could not assess the risk unless mother submitted to drug tests. In addition, mother had only recently permitted the social worker to access her home.
Mother's attorney argued the department failed to provide clear and convincing evidence to support removal of the children, as there was no evidence the department was concerned about Daniel's care in mother's custody, and failure to drug test was not evidence of abuse or neglect or establish that removal was needed. Mother was concerned about the accuracy of the drug tests, but she was willing to test if the court ordered it. Mother's attorney proposed, as an alternative to removal, that the court order drug testing, and the department could file a section 387 petition if mother tested positive.
County counsel confirmed that during contacts with mother the social worker had not noted that she was under the influence of alcohol or drugs, and the department did not seek a warrant to re-detain Daniel. The juvenile court consequently did not think there was clear and convincing evidence of substantial danger to the children and ordered family maintenance services for mother as to both children. The hearing was continued to January 31, 2023, for the department to prepare the appropriate orders and updated case plan for family maintenance services.
At the January 31, 2023 hearing, the juvenile court adopted the department's recommended findings and orders, which gave mother custody of the children and ordered family maintenance services for her. The court set a review hearing for July 6, 2023. Mother's case plan included mental health and substance abuse assessments and following any recommended treatment, and random drug testing.
While this appeal was pending, the family maintenance review hearing was held on July 6, 2023. County counsel provided us with minute orders of the hearing, which show the juvenile court terminated family maintenance services, awarded mother sole legal and physical custody of the children, dismissed the petition, and terminated its dependency jurisdiction.
We sent an order informing the parties we proposed to take judicial notice of the minute orders and invited the parties to file simultaneous letter briefs on the propriety of doing so and on whether the appeal is moot, since we cannot render any effective relief given the termination of dependency jurisdiction. Only mother's court-appointed attorney filed a response, in which she stated mother wished to lodge an objection to our order and asked us to independently evaluate the record and mother's supplemental brief and order the attorney to brief any arguable issue.
Since mother does not object to our taking judicial notice of the July 6, 2023 minute orders, we take judicial notice of the orders.
DISCUSSION
In her Phoenix H. letter brief, mother asserts there are arguable issues of reversible error concerning the validity of the jurisdictional findings and the violation of her rights which impacted the outcome of the dependency case. That case, however, has now been terminated, with mother securing sole custody of the children. The issue is whether the termination of dependency jurisdiction makes her appeal moot.
A case is moot when "events' "render[] it impossible for [a] court, if it should decide the case in favor of [appellant], to grant [her] any effec[tive] relief." '" (In re D.P. (2023) 14 Cal.5th 266, 276 (D.P.).) Effective relief exists when the appellant is suffering an "ongoing harm" due to the challenged ruling and that harm is "redressable or capable of being rectified by the outcome the [appellant] seeks." (Ibid.) We must determine on a case-by-case basis whether subsequent events in a dependency proceeding have made the case moot and whether our decision will affect the outcome of a subsequent proceeding. (Ibid.)
Where, as here, the juvenile court has terminated jurisdiction without issuing an order that continues to impact the appealing parent, such as an adverse custody order, the issue is whether we can grant that parent any effective relief. (D.P., supra, 14 Cal.5th at p. 277.) In such a case, effective relief exists if the parent can show he or she "suffered from a change in legal status." (Ibid.) "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.) A case is not moot, and merits review is required, "when a parent has demonstrated a specific legal or practical consequence that will be averted upon reversal." (Id. at p. 283.) If the parent has not made such a showing, the case is moot. (Ibid.)
Since sustaining the children's petitions and ordering family maintenance services, the juvenile court has terminated jurisdiction and awarded mother sole legal and physical custody of her children. There is no indication that mother or any other party has appealed from that order and the time to do so has expired. (See Cal. Rules of Court, rule 8.406.) Mother does not contend she is still subject to any order from the children's dependency proceedings that continues to adversely affect her or demonstrate a specific legal or practical consequence that would be averted upon reversal. Thus, as to the underlying proceedings, we cannot offer mother any effective relief and the appeal is moot.
"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.) That discretion, the court explained, is generally exercised "when 'the 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.)
The court, however, recognized that because features of dependency proceedings may make appeals prone to mootness problems, courts may opt to exercise their inherent discretion to decide certain challenges to juvenile court jurisdictional findings based on a variety of factors. (D.P., supra, 14 Cal.5th at pp. 284-285.) The court discussed some of these factors: (1) whether a jurisdictional finding could be prejudicial to the appellant, impact current or future dependency proceedings, or have consequences for the appellant beyond jurisdiction; (2) "whether the jurisdictional finding is based on particularly pernicious or stigmatizing conduct"; and (3) why the appeal became moot, such as when the appeal becomes moot due to the parents' prompt compliance with their case plan, since noncompliance could be "perversely incentivize[d]" if appeals from jurisdictional findings were only available "for parents who are less compliant or for whom the court has issued additional orders." (Id. at pp. 285-286.) The court explained that while no single factor was necessarily dispositive of whether a court should exercise discretionary review of a moot appeal, a court ultimately should be guided by the overarching goals of the dependency system in deciding whether to exercise its discretion. (Id. at pp. 286287.)
We decline to exercise our discretion to reach the merits of mother's appeal. This case does not present an issue of broad public interest and there is nothing to suggest the controversy will recur. Mother has not offered any reason we should consider the appeal now that the order terminating dependency jurisdiction has become final. Any impact the challenged findings may have on future proceedings is far too speculative for us to exercise our inherent discretion to consider the challenged order. (In re D.P., supra, 14 Cal.5th at p. 282.) Although allegations of mother's drug abuse could be stigmatizing, we do not consider it so stigmatizing as to weigh heavily in favor of review. While mother eliminated the need for continued jurisdiction by the first review hearing, which favors discretionary review, D.P. directs us not to consider an individual factor in isolation. (D.P., supra, 14 Cal.5th at p. 286 ["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 totality of the evidence in the record, we conclude discretionary review of mother's moot appeal is not warranted.
DISPOSITION
The appeal is dismissed.
[*] Before Franson, Acting P. J., Snauffer, J. and DeSantos, J.