In re Kyle G. CA2/1 ( 2022 )

Filed 5/20/22 In re Kyle G. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re KYLE G., B313645
a Person Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. 21CCJP00891)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
FRANCESCA S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Martha Matthews, Judge. Appeal dismissed.
Elizabeth C. Alexander, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and William D. Thetford, Principal
Deputy County Counsel, for Plaintiff and Respondent.
_____________________
In this dependency case (Welf. & Inst. Code, § 300 et seq.),1
Francesca S. (Mother) challenges the sufficiency of the evidence
supporting the juvenile court’s jurisdictional finding under
section 300, subdivision (b)(1) that her conduct posed a
substantial risk of harm to her 12-year-old son, Kyle G.
While this appeal was pending, the juvenile court
terminated dependency jurisdiction and awarded Mother sole
physical custody of Kyle, together with shared legal custody and
only monitored visitation to the father.2 As explained below,
because Mother has not appealed from the custody order
terminating jurisdiction, her appeal is moot.
Although Mother claims otherwise, the record does not
support our discretionary review of the limited jurisdictional
finding raised on this appeal. Her family has an extensive
history of involvement with the Department of Children and
Family Services (DCFS), and the evidence involving Mother’s
behavior will remain part of the dependency court record
regardless of how we rule. And, although it is possible there will
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2 Kevin G. (Father) pled no contest to allegations of
physical and emotional abuse of Kyle and is not a party to this
appeal.
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be future family court proceedings, the exit order issued by the
juvenile court can be modified only if there is a significant change
of circumstances.
Accordingly, Mother has not advanced a valid,
nonspeculative reason for us to exercise our discretion to consider
this moot appeal and we therefore dismiss it.
FACTS AND PROCEDURAL BACKGROUND3
On February 24, 2021, DCFS filed a petition asking the
juvenile court to take dependency jurisdiction over Kyle. The
petition alleged two counts pursuant to section 300, subdivisions
(a) and (b)(1), both relating to Father’s physical abuse of Kyle.
On April 6, 2021, DCFS filed an amended petition adding
another count pursuant to section 300, subdivision (c), addressing
Father’s emotional abuse.
On June 9, 2021, in an interim review report, DCFS
reported that Mother had consistently informed social workers
and monitors that Kyle had a serious medical condition that
could be affected by stress, causing visits with Father to be
truncated when Kyle displayed outward signs of stress.
However, Kyle’s medical providers subsequently informed DCFS
that he was “a healthy child” and “does not have [a] serious
medical condition that can place him at risk if he is under a lot of
stress.”
Although Mother had frequently reported episodes of chest
pain, Kyle’s doctors had diagnosed him with precordial catch
syndrome, a benign adolescent condition that can sometimes be
3We limit our discussion of the factual and procedural
background to those facts and proceedings pertinent to that
issue.
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triggered by stress. Although they had detected a “tiny” patent
ductus arteriosus (PDA), or opening between major blood vessels
leading from the heart, Mother was told repeatedly that the PDA
was unrelated to Kyle’s chest pains. His doctors “offered
reassurance . . . that Kyle’s cardiovascular status appears to be
stable with no intervention needed,” other than routine
monitoring by a physician at annual checkups.
Despite these reassurances, Mother reported “taking
[Kyle’s] blood pressure after every visit [with Father] and
keeping a log.” Mother insisted that this was done at the
recommendation of the child’s doctors, but no doctor reported
giving such a recommendation. DCFS was concerned that
Mother “was not being truthful” about Kyle’s health “to
apparently interfere with his visits between the child and the
father.”
On May 19, 2021, DCFS filed a second amended petition
adding a second count pursuant to section 300, subdivision (c),
this time concerning Mother’s conduct. Count c-2 alleged that
Mother “interfered with the child and [F]ather’s relationship and
visitation,” causing “parental alienation from [F]ather,” and that
“Mother’s . . . conflicts with [F]ather and [M]other’s unresolved
trauma have had a detrimental effect on . . . Kyle.” It also
alleged that Mother exacerbated Kyle’s anxiety “by taking his
blood pressure after visits with [F]ather” and “informing [Kyle]
[that] he has a [heart] condition that with added stress can be
affected.” DCFS concluded that “[s]uch conduct by [M]other
endangers [Kyle’s] physical health and safety, and places [him] at
risk of serious physical harm, damage and danger.”
On June 9, 2021, the juvenile court held a combined
jurisdictional and dispositional hearing. After sustaining counts
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a-1 and c-1 against Father, who pled no contest, the court turned
to the allegations against Mother. It first acknowledged that
Kyle had a minor heart defect, which his cardiologist had
recently characterized as “small” and “not requir[ing] further
action.” The court then expressed serious concerns that Mother
had “exaggerated or provided inaccurate information about
[Kyle’s] health conditions leading everyone, including perhaps
the child himself[,] to believe that he’s more medically fragile
than he actually is.”
The court emphasized the troubling interplay between
Mother’s exaggerated concern for Kyle’s health and the conflict
between both parents, finding that Mother had “essentially
weaponized [Kyle’s] health condition,” causing “Kyle himself to
believe he would be harmed [by] any form of visitation with
[F]ather, including something as obviously safe as video or phone
visitation.” The court concluded that “the evidence supports that
[Mother] is consciously or unconsciously exaggerating [Kyle’s]
medical fragility in a way that is harmful to the child.”
However, after considering the evidence offered by all
parties, the juvenile court did not believe that Mother’s conduct
rose to the level of “serious emotional damage,” as required by
section 300, subdivision (c). Instead, it felt that Mother’s conduct
posed a substantial risk to Kyle’s emotional and mental health,
and was thus appropriately alleged under section 300,
subdivision (b)(1). Over Mother’s objection, the juvenile court
conformed the petition to proof by amending count c-2 to count b-
1, and sustained the petition as amended.
Mother timely appealed.
On December 10, 2021, the juvenile court terminated its
jurisdiction. Mother was granted sole physical custody of Kyle
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along with joint legal custody and only monitored visitation to
Father.
DISCUSSION
Mother argues that the court’s jurisdictional findings are
not supported by substantial evidence and that her procedural
due process rights were violated when the court amended the
allegations against her according to proof rather than dismissing
them.4
“A question becomes moot when, pending an appeal from a
judgment of a trial court, events transpire which prevent the
appellate court from granting any effectual relief.” (Lester v.
Lennane (2000) 84 Cal.App.4th 536, 566.) “ ‘A reversal in such a
case would be without practical effect, and the appeal will
therefore be dismissed.’ ” (In re Dani R. (2001) 89 Cal.App.4th
402, 404; see In re N.S. (2016) 245 Cal.App.4th 53, 60 [“[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”].) Generally, an order
terminating juvenile court jurisdiction renders an appeal from a
previous order in the dependency proceedings moot where the
appellate court cannot provide effective relief. (In re C.C. (2009)
4 Mother has waived her procedural arguments. When
Mother’s trial counsel argued that Mother had inadequate notice
to address the juvenile court’s amended allegation, the court
offered to continue the hearing to give Mother adequate time to
respond. Mother’s counsel rejected this proposal, instead arguing
that the jurisdictional hearing should proceed. By rejecting the
opportunity to receive notice of the allegations, Mother waived
her procedural arguments. (Civ. Code, § 3513 [“Any one may
waive the advantage of a law intended solely for his benefit”].)
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172 Cal.App.4th 1481, 1488.) “[D]ismissal for mootness in such
circumstances is not automatic, but ‘must be decided on a case-
by-case basis.’ ” (Ibid.)
On June 9, 2021, at the combined jurisdictional and
dispositional hearing, although the juvenile court found that
Mother’s exaggerations of Kyle’s frailty and anxious behavior
regarding his visitation with Father posed a substantial risk of
harm to Kyle, it did not remove him from but instead left him in
Mother’s custody under the protection of the juvenile court.
On December 10, 2021, when the juvenile court found that
Mother no longer presented a risk to Kyle, it terminated
jurisdiction and released him to Mother’s custody following the
section 364 hearing. (See § 364, subd. (c) [“The court shall
terminate its jurisdiction [at a § 364 hearing] unless the social
worker or his or her department establishes by a preponderance
of evidence that the conditions still exist which would justify
initial assumption of jurisdiction under [§] 300, or that those
conditions are likely to exist if supervision is withdrawn”].)
The juvenile court’s December 10, 2021, order has provided
Mother the relief she seeks on this appeal—termination of
juvenile court jurisdiction, as well as sole physical and shared
legal custody of Kyle (with only monitored visitation to Father)—
and we thus cannot grant Mother effective relief.
Although discretion exists to hear an otherwise moot
appeal where the asserted “ ‘error infects the outcome of
subsequent proceedings,’ ” including “the possibility of prejudice
in subsequent [dependency or] family law proceedings” (In re
C.C., supra, 172 Cal.App.4th at pp. 1488-1489), we are not
persuaded that this is an appropriate case in which to exercise
our discretion.
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The family has an extensive history of involvement with
nine prior referrals to DCFS involving domestic violence and
child abuse going as far back as 2007. In the current case, Father
pled no contest to multiple allegations involving abuse of Kyle
that are not subject to appeal and will remain in the dependency
court record. Mother admitted to monitoring and logging Kyle’s
heart rate after every visit with Father, and she continued to
insist that Kyle’s heart condition was “serious” and required
vigilant monitoring, despite a plethora of contradicting evidence
from Kyle’s doctors. Thus, it is essentially undisputed that
Mother excessively monitored Kyle’s health every time he visited
with Father. These historic facts will also be in the dependency
record regardless of how we rule today.
Further, in any future dependency proceeding, DCFS would
have to show that Mother’s behavior has changed to such an
extent that—notwithstanding the favorable termination of
jurisdiction at the section 364 hearing in December 2021—she
newly poses a substantial risk of serious physical harm to Kyle.
(See In re I.A. (2011) 201 Cal.App.4th 1484, 1495 [“the agency
will be required to demonstrate jurisdiction [in any such future
proceeding] by presenting evidence of then current circumstances
placing the minor at risk”].)
In terms of future family law repercussions, Mother claims
we should review the jurisdictional findings of this moot appeal
because it is “quite likely in [the] future the family could be
revisiting the [f]amily [c]ourt.” Whatever may be said of the
likelihood of future family court involvement, the order awarding
sole physical and joint legal custody to Mother, with only
monitored visitation to Father, can be modified only if there is “ ‘a
significant change of circumstances since the juvenile court
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issued the order.’ ” (In re Cole Y. (2015) 233 Cal.App.4th 1444,
1456.) This greatly lessens the prospect that the current
jurisdictional ruling would have any impact on subsequent
proceedings.
Mother’s appeal is moot because she has not appealed from
the juvenile court order terminating jurisdiction. Further, she
has not advanced any nonspeculative, legal or practical
consequence from the jurisdictional findings causing us to
exercise our discretion to consider this moot appeal.
DISPOSITION
We dismiss as moot Mother’s appeal of the juvenile court’s
jurisdictional order.
NOT TO BE PUBLISHED
CRANDALL, J.*
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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