In re D.P. ( 2023 )

IN THE SUPREME COURT OF
CALIFORNIA
In re D.P., a Person Coming Under the Juvenile Court Law.
LOS ANGELES COUNTY DEPARTMENT OF
CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
T.P.,
Defendant and Appellant.
S267429
Second Appellate District, Division Five
B301135
Los Angeles County Superior Court
19CCJP00973B
January 19, 2023
Justice Liu authored the opinion of the Court, in which Chief
Justice Guerrero and Justices Corrigan, Kruger, Groban,
Jenkins, and Cantil-Sakauye* concurred.
* Retired Chief Justice of California, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
In re D.P.
S267429
Opinion of the Court by Liu, J.
In 2019, T.P. (Father) and Y.G. (Mother) brought their
infant son, D.P., to the hospital because they were concerned
about excessive crying. A chest X-ray revealed that D.P. had a
single healing rib fracture that the parents could not explain. In
response, the Los Angeles County Department of Children and
Family Services (the Department) filed a dependency petition
claiming that D.P. and his five-year-old sister, B.P., were at risk
of neglect. After reviewing the evidence, the juvenile court
dismissed all but one of the counts brought by the Department.
The court found that it had jurisdiction over D.P. under Welfare
and Institutions Code former section 300, subdivision (b)(1),
finding that “[t]he child has suffered, or there is a substantial
risk that the child will suffer, serious physical harm or illness,
as a result of the failure or inability of the child’s parent or
guardian to adequately supervise or protect the child . . . .” (All
undesignated statutory references are to the Welfare and
Institutions Code; § 300 was amended, effective January 1,
2023, to include changes nonsubstantive to the issues here
(Stats. 2022, ch. 832, § 1); unless otherwise indicated, we quote
and analyze the 2023 version.)
D.P.’s parents challenged this jurisdictional finding on
appeal. While the appeal was pending, the juvenile court
terminated its jurisdiction, finding that the parents had
complied with their case plan and D.P. was no longer at risk. In
response, the Court of Appeal dismissed the parents’ case,
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Opinion of the Court by Liu, J.
reasoning that because the juvenile court’s jurisdiction had
terminated, the case was moot. We granted Father’s petition for
review.
We conclude that Father’s appeal is moot because Father,
though asserting that the juvenile court’s jurisdictional finding
is stigmatizing, has not demonstrated a specific legal or
practical consequence that would be avoided upon reversal of
the jurisdictional findings. We further hold that the Court of
Appeal has discretion to review Father’s case even though it is
moot. The Court of Appeal erred in reasoning that “[t]he party
seeking such discretionary review . . . must demonstrate the
specific legal or practical negative consequences that will result
from the jurisdictional findings they seek to reverse.” (In re D.P.
(Feb. 10, 2021, B301135) [nonpub. opn.].) We reverse the Court
of Appeal’s judgment dismissing the appeal and remand for the
court to reconsider Father’s argument for discretionary review.
I.
In 2019, Father and Mother brought two-month-old D.P.
to the hospital because he had been crying more than usual and
seemed to have difficulty breathing. A chest X-ray revealed that
D.P. had pneumonia as well as a single healing rib fracture that
the parents, surprised by the latter finding, could not explain.
A nurse practitioner who treated D.P. and performed a skeletal
survey found no evidence of any other trauma or injuries to his
body. The Department received a report alleging that D.P. was
a victim of physical abuse and stating that his five-year-old
sister B.P. might also be at risk. Following treatment for the rib
fracture and for unrelated pneumonia and flu, D.P. was released
to his parents. At that time, he was gaining weight and seemed
happy.
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Opinion of the Court by Liu, J.
Father and Mother are immigrants from Vietnam and
China, respectively. Their household includes D.P. and B.P., as
well as the children’s maternal grandparents. The family has
no prior child welfare history or criminal history. A social
worker who interviewed B.P. found that she appeared healthy
and well groomed, and B.P. stated that she felt happy and safe
at home. The parents were cooperative with social workers and
participated in various pre-disposition services including
parenting classes and individual counseling. Nonetheless,
because the timing of D.P.’s rib fracture meant that it must have
occurred sometime after his birth while he was in the care of his
parents, and because his parents could not offer a satisfactory
explanation for the injury, the Department filed a petition
alleging that D.P. was subject to “deliberate, unreasonable, and
neglectful acts” at the hands of his parents, which placed him
and his sister “at risk of serious physical harm, damage, danger,
and physical abuse.” The Department claimed the children were
at risk of neglect and sought to have them removed from their
parents’ care.
In the juvenile court, the Department presented testimony
from Dr. Karen Imagawa, an expert in forensics and suspected
child abuse. Dr. Imagawa explained that the type of rib fracture
D.P. suffered is uncommon in healthy infants and has a “high
degree of specificity for non-accidental/inflicted trauma.”
Because a healthy infant’s ribcage is pliable, sustaining this
type of injury would require significant compression or blunt
force trauma. The parents introduced expert testimony from Dr.
Thomas Grogan, a pediatric orthopedic surgeon and expert in
child abuse forensics. Dr. Grogan explained that rib fractures
like the one D.P. suffered are typically caused by compressive
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Opinion of the Court by Liu, J.
force. If a fist or object had been used to strike D.P., causing
blunt force trauma, Dr. Grogan stated he would have expected
to see multiple broken ribs and potentially some external marks
or bruising. Because D.P. only had a fracture to one rib, Dr.
Grogan believed the injury could be the result of someone, even
D.P.’s five-year-old sister, picking him up incorrectly and
applying too much pressure to his chest. However, Dr. Grogan
could not rule out the possibility that the injury was the result
of an intentional act. Both experts agreed that in the absence of
any bruising, a caregiver would have no way of knowing that a
child had a broken rib.
At the jurisdictional hearing, the juvenile court dismissed
the portions of the petition relating to D.P.’s sister because they
were not supported by sufficient evidence. With respect to D.P.,
the juvenile court sustained a modified version of the former
section 300, subdivision (b)(1) (section 300(b)(1)) count, which
had alleged that “deliberate, unreasonable, and neglectful acts
on the part of [D.P.’s] mother and father endanger the child’s
physical health, safety and well-being, create a detrimental
home environment and place the child . . . at risk of serious
physical harm, damage, danger and physical abuse.”
By its terms, current section 300, subdivision (b)(1)(A)
applies where “[t]he child has suffered, or there is a substantial
risk that the child will suffer, serious physical harm or illness,
as a result of . . . [¶] . . . the failure or inability of the child’s
parent or guardian to adequately supervise or protect the child.”
A related provision, section 355.1, subdivision (a), provides:
“Where the court finds, based upon competent professional
evidence, that an injury . . . sustained by a minor is of a nature
as would ordinarily not be sustained except as the result of the
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unreasonable or neglectful acts or omissions of either parent, . . .
that finding shall be prima facie evidence that the minor is a
person described by subdivision . . . (b) . . . of Section 300.”
In light of the expert testimony and the force required to
cause D.P.’s injury, the juvenile court concluded the injury was
of a sort that would generally not be sustained barring some
neglect or harm to the child, and it thus found a prima facie case
under section 355.1. This finding “ ‘shift[ed] to the parents the
obligation of raising an issue as to the actual cause of the
injury.’ ” (In re D.P. (2014) 225 Cal.App.4th 898, 903, italics
omitted; see Evid. Code, § 604.)
The juvenile court explained: “What I have is an
unanswered explanation as to how this fracture occur[red] . . . ,
but I don’t lay [it] at the parents’ feet because I don’t think they
affirmatively through a deliberate act or some act on their part
or omission on their part caused the injury. And it may, in fact,
be that while the child is in the care of the maternal
grandmother or some other event occurred that was outside of
their view that this compression force was applied.” Further,
the court said that “I think this is — at its most — a possible
neglectful act in the way this compression fracture occurred.”
But in light of the section 355.1 presumption, the juvenile court
sustained the section 300(b)(1) count, though it struck the words
“deliberate” and “unreasonable” because those words are
“beyond what the evidence shows.” With the count so modified,
the court found that D.P.’s injury “would ordinarily not occur
[except] as the result[] of neglectful acts by the child’s mother
and father . . . [and s]uch . . . neglectful acts on the part of the
child’s mother and father endanger the child’s physical health,
safety and well-being, create a detrimental home environment
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and place the child . . . at risk of serious physical harm, damage,
danger and physical abuse.”
The court ordered D.P. to remain released to the parents
under the Department’s informal supervision under former
section 360, subdivision (b) for a period of six months. The court
noted that the parents had already completed family
preservation services; they each completed over five months of
weekly individual counseling, and according to their therapists,
both parents demonstrated a good ability to parent their
children. Both parents also attended parenting education
programming.
D.P.’s parents promptly appealed the juvenile court’s
jurisdictional ruling. Mother challenged the basis for the
juvenile court’s section 300(b)(1) finding, claiming that the
elements of failure to protect and causation had not been
established. Father argued that the juvenile court had erred in
applying the section 355.1 presumption and that no substantial
evidence supported the juvenile court’s finding that D.P. faced a
substantial risk of harm in the future. While the appeal was
pending, the parents fully complied with their case plan. The
Department did not bring the case back before the juvenile
court, and the juvenile court terminated its jurisdiction before
the completion of the appeal. In the Court of Appeal, the
Department initially took the position that it did not oppose
reversal of the jurisdictional finding in light of the parents’
successful completion of informal supervision. But after the
Court of Appeal asked for supplemental briefing on the issue of
mootness, the Department took the view that the appeal is moot
and should be dismissed because reversal of the jurisdictional
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finding could provide no practical or effective relief to the
parents.
The Court of Appeal agreed the case is moot, and it also
declined to exercise discretionary review on the ground that the
parents “have failed to identify a specific legal or practical
negative consequence resulting from the jurisdictional finding.”
Presiding Justice Rubin dissented, arguing that the
jurisdictional finding was not supported by substantial evidence
and “creates potentially serious challenges for the parents in
their efforts to provide for their family and actively participate
in their child’s upbringing.” We granted review.
II.
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.’ ”
(Consolidated etc. Corp. v. United A. etc. Workers (1946) 27
Cal.2d 859, 863 (Consolidated).) 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.’ ”
(Ibid.) 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. (See id. at p. 865.)
This rule applies in the dependency context. (In re N.S.
(2016) 245 Cal.App.4th 53, 60 [“the 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”].) A reviewing court must “ ‘decide on a case-by-case basis
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whether subsequent events in a juvenile dependency matter
make a case moot and whether [its] decision would affect the
outcome in a subsequent proceeding.’ ” (In re Anna S. (2010) 180
Cal.App.4th 1489, 1498.) We review de novo the Court of
Appeal’s determination that this case is moot. (Robinson v. U-
Haul Co. of California (2016) 4 Cal.App.5th 304, 319.)
The Courts of Appeal have held that when a juvenile
court’s finding forms the basis for an order that continues to
impact a parent’s rights — for instance, by restricting visitation
or custody — that jurisdictional finding remains subject to
challenge, even if the juvenile court has terminated its
jurisdiction. (See, e.g., In re Joshua C. (1994) 24 Cal.App.4th
1544, 1548 [father could challenge jurisdictional finding after
jurisdiction terminated because finding was the basis of order
restricting his visitation and custody rights]; In re J.K. (2009)
174 Cal.App.4th 1426, 1431–1432 [father could challenge
jurisdictional finding after jurisdiction terminated because
finding was the basis of order stripping father of custody and
imposing a stay-away order that remained in effect]; In re A.R.
(2009) 170 Cal.App.4th 733, 740 [termination of jurisdiction did
not moot appeal where father’s contact with child was “severely
restricted as a direct result of the jurisdictional and
dispositional findings and orders”].) Because reversal of the
jurisdictional finding calls into question the validity of orders
based on the finding, review of the jurisdictional finding can
grant the parent effective relief.
Where, as here, the juvenile court terminates its
jurisdiction without issuing any order that continues to impact
the parents, the question of whether an appeal can grant the
parents effective relief becomes more difficult. In such cases,
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Opinion of the Court by Liu, J.
the Courts of Appeal have applied different standards regarding
the showing a parent must make in order to maintain a
challenge to a juvenile court’s jurisdictional finding after
jurisdiction has terminated.
Some decisions hold that a parent must identify a “legal
[]or practical consequence” arising from a dependency court’s
jurisdictional findings to avoid mootness. (In re I.A. (2011) 201
Cal.App.4th 1484, 1493; see In re N.S., supra, 245 Cal.App.4th
at p. 61 [mother’s challenge to jurisdictional finding was moot
because the finding was not the basis of any adverse orders
against her].) By contrast, at least one decision has held that
the possibility that a jurisdictional finding will have negative
consequences for the parent — for instance, by impacting future
dependency proceedings — is enough to avoid mootness. (In re
Daisy H. (2011) 192 Cal.App.4th 713, 716 [termination of
juvenile court’s jurisdiction did not moot appeal because the
finding that father placed children at risk of physical and
emotional harm could have negative consequences for father in
future family law or dependency proceedings].)
As noted, a case is not moot where a court can provide the
plaintiff with “effect[ive] relief.” (Consolidated, supra, 27 Cal.2d
at p. 863.) In this context, relief is effective when it “can have a
practical, tangible impact on the parties’ conduct or legal
status.” (In re I.A., supra, 201 Cal.App.4th at p. 1490.) 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
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Opinion of the Court by Liu, J.
plaintiff’s legal status that is capable of being redressed by a
favorable court decision. (Cf. Humphries v. County of Los
Angeles (9th Cir. 2009) 554 F.3d 1170, 1185, as amended (Jan.
30, 2009), revd. and remanded sub nom. on other grounds by Los
Angeles County v. Humphries (2010) 562 U.S. 29 [for purposes
of the due process clause, a protected liberty interest is
implicated when the “stigma from governmental action” is
coupled with the “alteration or extinguishment of ‘a right or
status previously recognized by state law’ ”].) For example, a
case is not moot where a jurisdictional finding affects parental
custody rights (In re J.K., supra, 174 Cal.App.4th at pp. 1431–
1432), curtails a parent’s contact with his or her child (In re A.R.,
supra, 170 Cal.App.4th at p. 740), or “has resulted in
[dispositional] orders which continue to adversely affect” a
parent (In re Joshua C., supra, 24 Cal.App.4th at p. 1548). We
express no view on whether stigma alone may be sufficient to
avoid mootness in other contexts, including a criminal appeal,
or whether a reviewing court’s decision not to reach the merits
of the appeal of a jurisdictional finding could ever implicate a
parent’s due process rights.
We disapprove In re Daisy H., supra, 192 Cal.App.4th 713,
to the extent it held, contrary to today’s opinion, that speculative
future harm is sufficient to avoid mootness.
In the Court of Appeal, Father sought not only to have
jurisdiction terminated but also to have the juvenile court’s
jurisdictional finding reversed as unsupported by the evidence.
Although jurisdiction has been terminated, Father contends
that the appeal is not moot because the jurisdictional finding is
stigmatizing and has resulted or will result in his inclusion in
California’s Child Abuse Central Index (CACI) (Pen. Code,
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§ 11170), which carries several legal consequences. As noted,
stigma alone is not enough to avoid mootness, so the question is
whether Father’s concern about inclusion in the CACI amounts
to a tangible legal or practical consequence of the jurisdictional
finding that would be remedied by a favorable decision on
appeal. We conclude it does not and thus his appeal is moot.
Specifically, Father contends that the juvenile court’s
jurisdictional finding could estop him from challenging his
inclusion in the CACI. California’s Child Abuse and Neglect
Reporting Act (CANRA; Pen. Code, § 11164 et seq.) requires that
several state agencies, including the Department, forward
substantiated reports of child abuse or neglect to California’s
Department of Justice (DOJ) for inclusion in the CACI. (Id.,
§ 11169, subd. (a).) CANRA sorts reports of child abuse and
neglect into three categories: unfounded, inconclusive, and
substantiated. (Pen. Code, § 11165.12.) A report is unfounded
when it “is determined by the investigator who conducted the
investigation to be false, to be inherently improbable, to involve
an accidental injury, or not to constitute child abuse or neglect.”
(Id., subd. (a).) A report is inconclusive when the investigator
determines it was “not . . . unfounded, but the findings are
inconclusive and there is insufficient evidence to determine
whether child abuse or neglect . . . has occurred.” (Id., subd. (c).)
A report is substantiated if it “is determined by the investigator
who conducted the investigation to constitute child abuse or
neglect.” (Id., subd. (b).)
When an agency forwards a substantiated report, the
agency must provide written notice to the person whose conduct
was reported to the CACI. (Pen. Code, § 11169, subd. (c).)
Persons listed in the CACI are generally entitled to challenge
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Opinion of the Court by Liu, J.
the basis for their inclusion at a hearing before the reporting
agency. (Id., § 11169, subd. (d).) This is an important
protection; according to amicus curiae ACLU of Southern
California, roughly 30 percent of CACI reports are removed
after a grievance hearing is held. However, if “a court of
competent jurisdiction has determined that suspected child
abuse or neglect has occurred,” the hearing request “shall be
denied.” (Id., § 11169, subd. (e).)
Inclusion in the CACI carries several consequences for
parents. A CACI check is required for “any prospective foster
parent, or adoptive parent, or any person 18 years of age or older
residing in their household.” (Health & Saf. Code, § 1522.1,
subd. (b).) California law also requires state agencies to search
the CACI before granting a number of rights and benefits,
including licensing to care for children in a day care center (id.,
§ 1596.877, subd. (b)) and employment in child care (id.,
§ 1522.1, subd. (a)). Even if an agency or employer is not legally
required to check the CACI, it may do so as a matter of internal
policy. CACI information is available to a variety of entities,
including law enforcement entities investigating a case of
known or suspected child abuse (Pen. Code, § 11170,
subd. (b)(3)), a court appointed special advocate program
conducting a background investigation for employment or
volunteer candidates (id., subd. (b)(5)), an investigative agency,
probation officer, or court investigator responsible for placing
children or assessing the possible placement of children (id.,
subd. (b)(7)), a government agency conducting a background
investigation of an applicant seeking employment as a peace
officer (id., subd. (b)(9)), a county child welfare agency or
delegated county adoption agency conducting a background
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investigation of an applicant seeking employment or volunteer
status who will have direct contact with children at risk of abuse
or neglect (id., subd. (b)(10)), and out-of-state agencies making
foster care or adoptive decisions (id., subd. (e)(1)). These
agencies and employers are not barred from hiring or granting
a license to an applicant listed in the CACI, but they may be
hesitant to do so. A CACI search may also occur if there are
allegations of child abuse or neglect; the Department’s
investigation in this case involved making a CACI search for all
adults living in D.P.’s household, including parents and
grandparents. (See Sen et al., Inadequate Protection:
Examining the Due Process Rights of Individuals in Child Abuse
and Neglect Registries (2020) 77 Wash. & Lee L.Rev. 857, 869.)
Moreover, because the information included in the CACI is
available to a wide variety of state agencies, employers, and law
enforcement, it may be stigmatizing to the person listed.
In this case, however, Father has not shown that the
general neglect allegation against him was reported for
inclusion in the CACI, nor has he shown that this type of
allegation is reportable. These two layers of uncertainty render
Father’s CACI claim too speculative to survive a mootness
challenge.
First, Father does not assert that he has actually been
reported for inclusion in the CACI. He notes that the record is
silent on this point and argues that where the record is silent, a
Court of Appeal will ordinarily presume an official duty has been
regularly performed. (See Evid. Code, § 664.) We are
unpersuaded that Father has been or will be reported to the
CACI. When the Department forwards a substantiated report,
it must provide written notice to the person whose conduct was
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reported to the CACI. (Pen. Code, § 11169, subd. (c).) Father
does not claim he has received any such notice, and the
Department has submitted a sworn declaration confirming that
the allegation was not reported. Moreover, we note that persons
who are concerned they may be listed on the CACI can inquire
by sending a notarized and signed letter to the DOJ. (Id.,
§ 11170, subd. (f)(1).) Father has not submitted any
documentation from the DOJ establishing that he is listed in the
CACI. On these facts, we find that Father has not shown he was
reported to the CACI based on his conduct toward D.P.
Father next makes two related arguments that his
potential inclusion in CACI is sufficient to avoid mootness. He
argues that he will be reported to the CACI in the near future
because the juvenile court’s findings require the Department to
forward the report for inclusion in the CACI. And he asserts
that the allegations against him could subsequently be
forwarded for inclusion in the CACI, at which point the juvenile
court’s finding against him would estop him from challenging
his inclusion in the CACI. (See Pen. Code, § 11169, subd. (e) [if
“a court of competent jurisdiction has determined that suspected
child abuse or neglect has occurred,” the hearing request “shall
be denied”].)
These possibilities are too speculative for purposes of
avoiding mootness. The record reveals that in the course of
investigating the report against Father, the Department made
two allegations. The first is the original report of physical abuse
or “ ‘unlawful corporal punishment or injury’ ” as defined in
Penal Code section 11165.4. The Department deemed this
report inconclusive. Because the report was not substantiated,
the Department was not required to forward the report to the
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DOJ for inclusion in the CACI, and there is no indication that
the Department ever did or will forward this report. Second,
during its investigation, the Department added an allegation of
“ ‘[g]eneral neglect’ ” as defined in Penal Code former
section 11165.2, subdivision (b). This allegation was deemed
substantiated. However, the Department has submitted a
sworn declaration by the investigator of D.P.’s case stating that
the allegation was not forwarded to the DOJ pursuant to
Department policy.
Further, we note that CANRA distinguishes between
cases of “general” and “severe” neglect. “ ‘Severe neglect’ ” is
defined as “the negligent failure . . . to protect the child from
severe malnutrition or medically diagnosed nonorganic failure
to thrive,” or “willfully caus[ing] or permit[ing] the person or
health of the child to be placed in a situation such that their
person or health is endangered.” (Pen. Code, § 11165.2,
subd. (a).) “ ‘General neglect’ means the negligent failure of a
person having the care or custody of a child to provide adequate
food, clothing, shelter, medical care, or supervision where no
physical injury to the child has occurred but the child is at
substantial risk of suffering serious physical harm or illness.”
(Id., subd. (b).) Only reports of “child abuse or severe neglect” —
not “general neglect” — must be forwarded to the CACI. (Id.,
§ 11169, subd. (a).) The Department claims it cannot forward
the allegation against Father to the DOJ because allegations of
general neglect are not eligible for inclusion in the CACI. In
response, Father says the allegations against him do not
squarely fit within the category of general neglect because
general neglect lies only “where no physical injury to the child
has occurred” (id., § 11165.2, subd. (b)) and there is no dispute
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D.P. was physically injured. But the alleged conduct is also a
poor fit for “severe neglect.” There is no allegation that D.P.’s
parents negligently failed to protect him “from severe
malnutrition or medically diagnosed nonorganic failure to
thrive,” or that they “willfully caused or permitted the person or
health of the child to be placed in a situation such that their
person or health is endangered.” (Id., subd. (a).)
Moreover, although “statements by counsel [at oral
argument] are not evidence and do not amount to an admission
or stipulation of fact” (Zolly v. City of Oakland (2022) 13 Cal.5th
780, 796), we note that when asked at oral argument whether
the Department intended to report Father for inclusion in the
CACI, counsel for the Department said, “We don’t want to report
these parents. We did not report these parents. And we’re not
going to unless this court orders us to.” The fact that the statute
does not require allegations of conduct short of “severe neglect”
to be forwarded to the CACI, together with the Department’s
policy not to forward such allegations and the Department’s
representations to this court that it will not do so, renders
Father’s claim too speculative to avoid mootness.
In sum, Father has not shown that he was included in the
CACI or that he will be reported in the future based on the
allegations at issue here. And even if the Department
attempted to report him, Father has not shown that the
allegations against him are reportable. In light of these layers
of uncertainty, we find Father’s CACI claim too speculative to
demonstrate a specific legal consequence that a favorable
judgment could redress. Since the other legal or practical
consequences identified by Father are also too speculative, we
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agree with the Court of Appeal that Father’s challenge to the
juvenile court’s jurisdictional finding is moot.
III.
Even when a case is moot, courts may exercise their
“inherent discretion” to reach the merits of the dispute. (Konig
v. Fair Employment & Housing Com. (2002) 28 Cal.4th 743, 745,
fn. 3.) As a rule, courts will generally exercise their discretion
to review a moot case 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.”
(Cucamongans United for Reasonable Expansion v. City of
Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479–80; see
Conservatorship of Wendland (2001) 26 Cal.4th 519, 524, fn. 1
[exercising discretion to decide an otherwise moot case
concerning “important issues that are capable of repetition
yet . . . evad[ing] review”].)
In the dependency context, the Courts of Appeal have
reached differing conclusions on when discretionary review of
moot cases may be warranted outside the circumstances noted
above. Some have taken a broad view of their discretion to reach
the merits of a moot appeal. (See, e.g., In re Nathan E. (2021)
61 Cal.App.5th 114, 121 [“Although mother’s argument appears
to assume that there will be future dependency proceedings and
offers no other specific harm that sustained jurisdictional and
dispositional findings may bring her, we nevertheless exercise
our discretion to consider her appeal on the merits”]; In re
Madison S. (2017) 15 Cal.App.5th 308, 329 [“a reviewing court
[has] the discretion to consider the adequacy of additional
jurisdictional grounds if it so desires”]; In re Anthony G. (2011)
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Opinion of the Court by Liu, J.
194 Cal.App.4th 1060, 1065 [“We are not persuaded that we
should refrain from addressing the merits of [parent’s] appeal”
of a terminated jurisdictional finding]; In re C.C. (2009)
172 Cal.App.4th 1481, 1489 [court found parent’s claim that a
jurisdictional order would create “the possibility of prejudice in
subsequent family law proceedings” as “highly speculative,” but
nonetheless chose to proceed to the merits “in an abundance of
caution”].)
Other courts have cited specific factors when considering
whether to reach the merits of a moot case. In In re Drake M.,
the court found discretionary review to be appropriate “when the
[jurisdictional] finding (1) serves as the basis for dispositional
orders that are also challenged on appeal [citation]; (2) could be
prejudicial to the appellant or could potentially impact the
current or future dependency proceedings [citations]; or (3)
‘could have other consequences for [the appellant], beyond
jurisdiction.’ ” (In re Drake M. (2012) 211 Cal.App.4th 754, 762–
763.) However, where a jurisdictional finding “serves as the
basis for dispositional orders that are also challenged on appeal”
(id. at p. 762), the appeal is not moot. We disapprove In re Drake
M., supra, 211 Cal.App.4th 754 to the extent it suggests that
such a finding is insufficient to avoid mootness and supports
only discretionary review.
Other courts have declined to exercise their discretion to
reach the merits of a moot case where the parent has not
identified “specific legal or practical consequence[s] from [the
juvenile court’s jurisdictional] finding, either within or outside
the dependency proceedings.” (In re I.A., supra, 201 Cal.App.4th
at p. 1493; see In re David B. (2017) 12 Cal.App.5th 633, 654
[“decid[ing] an otherwise moot appeal . . . is appropriate only if
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Opinion of the Court by Liu, J.
a ruling on the merits will affect future proceedings between the
parties or will have some precedential consequence in future
litigation generally”].)
The Court of Appeal here concluded that discretionary
review is only appropriate when the parent has “demonstrate[d]
specific legal or practical negative consequences that will result
from the jurisdictional findings they seek to reverse.” This was
error. Whether or not a parent has demonstrated a specific legal
or practical consequence that would be avoided upon reversal of
the jurisdictional findings is what determines whether the case
is moot or not moot. It is not what determines whether a court
has discretion to decide the merits of a moot case. To be clear,
when a parent has demonstrated a specific legal or practical
consequence that will be averted upon reversal, the case is not
moot, and merits review is required. When a parent has not
made such a showing, the case is moot, but the court has
discretion to decide the merits nevertheless.
We note that the availability of such discretion is
particularly important in the dependency context, as several
features common to dependency proceedings tend to render
parents’ appeals moot. For example, the principle that
“[d]ependency jurisdiction attaches to a child, not to his or her
parent” (In re D.M., supra, 242 Cal.App.4th at p. 638), means
that “ ‘[a]s long as there is one unassailable jurisdictional
finding, it is immaterial that another might be inappropriate’ ”
(In re D.P., supra, 225 Cal.App.4th at p. 902). Thus, where
jurisdictional findings have been made as to both parents but
only one parent brings a challenge, the appeal may be rendered
moot. (See, e.g., In re D.M., at pp. 638–639.) The same is true
where there are multiple findings against one parent; the
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Opinion of the Court by Liu, J.
validity of one finding may render moot the parent’s attempt to
challenge the others. (See, e.g., In re Alexis E. (2009) 171
Cal.App.4th 438, 451; In re Jonathan B. (1992) 5 Cal.App.4th
873, 875.)
Further, even where all findings against both parents are
challenged, the speed with which dependency cases are resolved
will often render appeals moot. A key feature of juvenile court
is expeditious resolution of pending cases. (See In re T.G. (2015)
242 Cal.App.4th 976, 986 [it is the “ ‘intent of the Legislature . . .
that the dependency process proceed with deliberate speed and
without undue delay’ ”].) The juvenile court system is designed
to “not disrupt the family unnecessarily or intrude
inappropriately into family life . . . .” (§ 300, subd. (j).)
Also, unlike other court proceedings in which “the
contested issues normally involve historical facts (what
precisely occurred, and where and when), . . . in a dependency
proceeding the issues normally involve evaluations of the
parents’ present willingness and ability to provide appropriate
care for the child and the existence and suitability of alternative
placements.” (In re James F. (2008) 42 Cal. 4th 901, 915.) The
juvenile court’s analysis in this regard may consider myriad
factors, including a parent’s new job, completion of required
coursework, changes in housing status, addiction treatment, or
even the status of the parents’ relationship. To account for these
potential developments, juvenile courts conduct “ ‘recurrent
reviews of the status of parent and child.’ ” (In re Ryan K. (2012)
207 Cal.App.4th 591, 597.) Appellate review, by contrast,
proceeds more slowly. Whereas juvenile courts must
continuously update their information and may alter orders in
response to changing facts, an appeal from a juvenile court order
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Opinion of the Court by Liu, J.
may often take up to 18 months — “a considerable time in the
life of a young child.” (In re Tiffany Y. (1990) 223 Cal.App.3d
298, 304.) In this span, a dependency case may have “moved
from possible reunification to possible termination” of parental
rights (ibid.), and the statutory scheme permits a juvenile court
to adjust its determinations while an appeal of a prior order is
pending (In re Ryan K., at p. 597; Code Civ. Proc., § 917.7).
Appellate dispositions may lose their practical efficacy because
“when an appellate court reverses a prior order of the [juvenile]
court on a record that may be ancient history to a dependent
child, the [juvenile] court must implement the final appellate
directive in view of the family’s current circumstances and any
developments in the dependency proceedings that may have
occurred during the pendency of the appeal.” (In re Anna S.,
supra, 180 Cal.App.4th at p. 1501.)
In sum, these features of dependency proceedings may
make appeals particularly prone to mootness problems. (See In
re Michelle M. (1992) 8 Cal.App.4th 326, 330 [discussing this
problem].) Parents may appeal an order that is later changed,
or jurisdiction over the child may terminate before an appeal is
finally resolved, as in this case.
Because dismissal of an appeal for mootness operates as
an affirmance of the underlying judgment or order (In re Jasmon
O. (1994) 8 Cal.4th 398, 413), such dismissals may “ ‘ha[ve] the
undesirable result of insulating erroneous or arbitrary rulings
from review’ ” (In re Marquis H. (2013) 212 Cal.App.4th 718,
724). This can pose issues not only for the parents subject to
such findings, but also for state agencies that rely on such
findings in the course of their duties, including child protective
agencies, the State Department of Social Services, child support
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In re D.P.
Opinion of the Court by Liu, J.
agencies, and school district officials. (See § 827,
subd. (a)(1)(G)–(J) [discussing which agencies can access
juvenile court findings].) It is in this context that Courts of
Appeal have understandably opted to exercise their inherent
discretion to decide certain challenges to juvenile court
jurisdictional findings, notwithstanding mootness. In
exercising that discretion, courts have properly considered a
variety of factors, including but not limited to the ones we now
discuss.
Courts 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.’ ” (In re Drake M., supra, 211 Cal.App.4th at
pp. 762–763; see also In re Nathan E., supra, 61 Cal.App.5th at
p. 121; In re C.C., supra, 172 Cal.App.4th at p. 1489.) A prior
jurisdictional finding can be considered by the Department in
determining whether to file a dependency petition or by a
juvenile court in subsequent dependency proceedings. (See, e.g.,
In re Jeanette R. (1989) 212 Cal.App.3d 1338, 1340 [petition
alleged parents were unfit in part because mother had a history
of neglect as indicated by previous dependency proceedings];
Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 600
[affirming juvenile court’s determination that reunification was
not in child’s best interests, in part because parents had
previously had their parental rights as to three siblings
terminated due to drug abuse and domestic violence].)
Jurisdictional findings may also impact the child’s placement
(see, e.g., In re Christopher M. (2014) 228 Cal.App.4th 1310,
1317) or subsequent family law proceedings (see, e.g., In re
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In re D.P.
Opinion of the Court by Liu, J.
Daisy H., supra, 192 Cal.App.4th at p. 716 [jurisdictional
findings “could have severe and unfair consequences . . . in
future family law or dependency proceedings”]). In such
circumstances, ensuring the validity of findings on appeal may
be particularly important.
The exercise of discretionary review may also be informed
by whether the jurisdictional finding is based on particularly
pernicious or stigmatizing conduct. (See, e.g., In re M.W. (2015)
238 Cal.App.4th 1444, 1452 [electing to conduct merits review
because findings that Mother “exposed her children to a
substantial risk of physical and sexual abuse are pernicious”];
In re L.O. (2021) 67 Cal.App.5th 227, 237 [similar].) Though
stigma alone will not sustain an appeal, a court may consider
the nature of the allegations against the parent when deciding
whether discretionary review is proper. The more egregious the
findings against the parent, the greater the parent’s interest in
challenging such findings.
A court may also consider why the appeal became moot.
Where 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. The same may be true
where a parent does not challenge all jurisdictional findings, but
only one finding involving particularly severe conduct.
Moreover, where, as here, the case becomes moot due to prompt
compliance by parents with their case plan, discretionary review
may be especially appropriate. After all, if D.P.’s parents had
not completed their supervision requirements in a timely
fashion, the juvenile court’s jurisdiction might have continued
during the pendency of Father’s appeal, and no mootness
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In re D.P.
Opinion of the Court by Liu, J.
concern would have arisen. 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. (See, e.g., In re Joshua C., supra, 24 Cal.App.4th at
p. 1548; In re A.R., supra, 170 Cal.App.4th at p. 740; cf. People
v. DeLong (2002) 101 Cal.App.4th 482, 492 [declining to hold
moot criminal appeal in which defendant promptly complied
with drug treatment program and probation conditions in part
because doing so would create a discrepancy regarding appeal
rights based on compliance].) Principles of fairness may thus
favor discretionary review of cases rendered moot by the prompt
compliance or otherwise laudable behavior of the parent
challenging the jurisdictional finding on appeal.
The factors above are not exhaustive, and no single factor
is necessarily dispositive of whether a court should exercise
discretionary review of a moot appeal. Ultimately, 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.” (§ 300.2,
subd. (a); see In re Nolan W. (2009) 45 Cal.4th 1217, 1228 [“The
overarching goal of dependency proceedings is to safeguard the
welfare of California’s children. [Citation.] ‘Family
preservation . . . is the first priority when child dependency
proceedings are commenced.’ ”].) Given the short timeframes
associated with dependency cases and the potentially
significant, if sometimes uncertain, consequences that may flow
from jurisdictional findings, consideration of the overarching
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Opinion of the Court by Liu, J.
purposes of the dependency system may counsel in favor of
reviewing a parent’s appeal despite its mootness. A reviewing
court must decide on a case-by-case basis whether it is
appropriate to exercise discretionary review to reach the merits
of a moot appeal, keeping in mind the broad principles and
nonexhaustive factors discussed above.
Here the Court of Appeal concluded, contrary to today’s
opinion, that it had discretion to consider a moot appeal only if
Father presented specific legal or practical negative
consequences. We reverse the judgment of dismissal and
remand to the Court of Appeal to reconsider Father’s argument
that discretionary review is warranted in light of the principles
and factors discussed above. On remand, the Court of Appeal
may allow Father to introduce additional evidence in support of
discretionary review if appropriate. (See Code Civ. Proc., § 909
[appellate court may take additional evidence “for the purpose
of making factual determinations or for any other purpose in the
interests of justice”]; In re Salvador M. (2005) 133 Cal.App.4th
1415, 1421 [augmenting record to include additional report from
county agency regarding dependency petition because the report
related to mootness].)
25
In re D.P.
Opinion of the Court by Liu, J.
CONCLUSION
We reverse the judgment of the Court of Appeal and
remand for further proceedings consistent with this opinion.
LIU, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
CANTIL-SAKAUYE, J.*
* Retired Chief Justice of California, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
26
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion In re D.P.
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP opn. filed 2/10/21 – 2d Dist.
Div. 5
Rehearing Granted
__________________________________________________________
Opinion No. S267429
Date Filed: January 19, 2023
__________________________________________________________
Court: Superior
County: Los Angeles
Judge: Craig S. Barnes
__________________________________________________________
Counsel:
Megan Turkat-Schirn, under appointment by the Supreme Court, for
Defendant and Appellant.
Rita Himes for Legal Services for Prisoners with Children, Los Angeles
Dependency Lawyers Inc., East Bay Family Defenders and East Bay
Community Law Center as Amici Curiae on behalf of Defendant and
Appellant.
Aditi Fruitwala, Minouche Kandel; Elizabeth Gill; and David Loy for
American Civil Liberties Union of Southern California, American Civil
Liberties Union of Northern California and American Civil Liberties
Union of San Diego and Imperial Counties as Amici Curiae on behalf of
Defendant and Appellant.
Emily Berger; Keiter Appellate Law and Mitchell Keiter for Los
Angeles Dependency Lawyers, Law Office of Emily Berger and
Thirteen Appellate Dependency Attorneys as Amici Curiae on behalf of
Defendant and Appellant.
Mary C. Wickham and Rodrigo A. Castro-Silva, County Counsel, Kim
Nemoy, Assistant County Counsel, and William D. Thetford, Principal
Deputy County Counsel, for Plaintiff and Respondent.
Laura E. Hirahara for California State Association of Counties as
Amicus Curiae on behalf of Plaintiff and Respondent.
Lounsbery Law Office and Tate Lounsbery as Amicus Curiae.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Megan Turkat-Schirn
Attorney at Law
269 South Beverly Drive, #193
Beverly Hills, CA 90212
(310) 279-0003
William D. Thetford
Principal Deputy County Counsel
500 West Temple Street, Suite 648
Los Angeles, CA 90012
(213) 808-8780