In re T.G. CA2/5 ( 2022 )

Filed 8/23/22 In re T.G. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
In re T.G., et al., Persons Coming B312300
Under Juvenile Court Law.
_______________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. No. 21CCJP00822A, B)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
ORDER MODIFYING
Plaintiff and Respondent, OPINION
v.
H.O.,
Defendant and Appellant.
BY THE COURT:
It is ordered that the opinion filed herein on August 12,
2022, is modified as follows:
On the caption page, second paragraph, sentence in the
first paragraph, after Daniel G. Rooney, insert “and Janette
Freeman Cochran”.
There is no change in judgment.
RUBIN, P. J. BAKER, J. MOOR, J.
Filed 8/12/22 In re T.G. CA2/5 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
In re T.G., et al., Persons Coming B312300
Under Juvenile Court Law.
_______________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. No. 21CCJP00822A, B)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
H.O.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Julie Fox Blackshaw, Judge. Dismissed.
Nicole Williams; Daniel G. Rooney, under appointment by
the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel and Sally J. Son, Deputy County
Counsel, for Plaintiff and Respondent.
__________________________
H.O. (mother) appeals from the order adjudicating her two
children, T.G. (born 2011, older son) and L.W. (born 2021, baby),
dependent under Welfare and Institutions Code section 300,
subdivision (b), although neither child was removed from her
custody and jurisdiction was subsequently terminated as to both
children. We dismiss the appeal as moot.
FACTUAL AND PROCEDURAL BACKGROUND
The children have different fathers. Before baby was born,
mother and older son’s father shared physical and legal custody
of older son. In August 2019, mother, while under the influence
of an unknown substance, tried to put older son in the car and
drive off with him. The maternal grandmother intervened to
protect the child, leading to a physical altercation. Police were
called. Eventually the juvenile court issued a three-year
protective order, protecting both older son and maternal
grandmother from mother. The record does not indicate a change
in the custody order, but in the immediate aftermath, older son
lived exclusively with his father. The protective order appears to
have terminated in November 2019.
Mother and baby’s father had a turbulent relationship,
which included drug use and domestic violence. In September
2020, mother learned that she was 22 weeks pregnant with baby
and made the decision to stop using amphetamines. She moved
back home with her mother, and requested that her doctor drug
test her to prove that she was clean. She repeatedly tested
negative and observers (specifically, the maternal grandmother
and the father of older son) both saw a positive change in mother.
In fact, older son’s father was comfortable with older son visiting
mother in maternal grandmother’s home. Older son, as well, said
that he felt safe in mother’s home.
2
When baby was born, in January 2021, mother tested
negative for drugs. However, the baby’s meconium was positive
for amphetamines, caused by mother’s use during the pregnancy.
While it was the baby’s meconium test that brought the
family to the attention of the Department of Children and Family
Services (Department), the Department was also concerned about
prior referrals, including the 2019 incident that had prompted a
protective order. However, mother’s condition had improved to
the point where neither maternal grandmother nor older son’s
father believed older son needed to be protected from mother.
On February 22, 2021, the Department filed a petition to
declare both children dependent. Neither child was detained
from mother.1 On March 19, 2021, the Department filed an
amended petition.
The jurisdiction/disposition hearing was held on May 11,
2021. By that time, mother had continued to drug test, and all
tests were negative. Older son’s father was very happy with
mother’s progress, and the fact that she had reengaged in the
care of older son.
The court sustained some, but not all, allegations of the
petition. Specifically, it found the children dependent, under
Welfare and Institutions Code section 300, subdivision (b), for the
following three reasons: (1) mother’s history of substance abuse
and that she was “still somewhat in denial of her substance abuse
1 Baby was detained from his father, with whom he was not
living. Throughout the dependency proceedings, baby’s father
had no more than monitored visitation. He is not a party to this
appeal. Older son’s father was non-offending. He was
represented at the adjudication/disposition hearing, but the
petition contained no allegations against him. He is also not a
party to this appeal.
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problem” despite maintaining sobriety; (2) mother’s history of
domestic violence with baby’s father, about which mother
continued to be in denial; and (3) baby’s father’s lengthy and
ongoing history of substance abuse.
As to disposition, the Department requested immediate
termination of jurisdiction over older son, with joint physical
custody, but sole legal custody with older son’s father. According
to the Department’s counsel, the request for sole legal custody
was based on the previous protective order. Counsel for mother,
older son, and older son’s father all argued for joint legal and
physical custody. The court agreed, and terminated jurisdiction
over older son, with a family court order for joint physical and
legal custody, nearly identical to the previous joint legal and
physical custody order.
The disposition order for baby removed him from his father
and placed him in mother’s home (where he was already living),
with family maintenance services.
Mother filed a timely notice of appeal.
Six months after disposition, while mother’s appeal was
pending, the juvenile court terminated jurisdiction over baby and
released baby to mother.2
On appeal, the Department argued mother’s appeal as to
baby should be dismissed as both non-justiciable and moot.
Jurisdiction over baby had been assumed on the conduct of both
mother and baby’s father; and it had now been terminated with
baby released to mother. As to justiciability, DCFS reasoned that
even if this court were to conclude that the dependency court
2 Specifically, there was a juvenile custody order granting
baby’s parents joint legal custody, but mother sole physical
custody. Baby’s father was granted monitored visitation only.
4
erred in assuming jurisdiction based on mother’s conduct,
jurisdiction had nonetheless been appropriate based on baby’s
father’s conduct. (See, e.g., In re H.R. (2016) 245 Cal.App.4th
1277, 1285-1286 [dependency court has jurisdiction when the
conduct of either parent brings the child within the definition of a
dependent].) As to mootness, the Department argued no relief
could be granted mother as sole physical custody of baby had
been returned to her. Mother argued in her Reply Brief that the
appeal remained justiciable. We sought additional briefing as to
whether the appeal should be dismissed as moot as to both
children because jurisdiction had been terminated as to them
both. Mother asks that we exercise our discretion to rule on the
merits. The Department continues to argue that the case should
be dismissed as to baby, but does not pursue the argument as to
older son.
DISCUSSION
While an appeal is pending, and without fault of the
respondent, if an event occurs which renders it impossible for this
court, if it decides the case in favor of appellant, to grant any
effectual relief, the appeal becomes moot. (In re Jessica K. (2000)
79 Cal.App.4th 1313, 1316.) As both children have been returned
to mother’s custody and jurisdiction has been terminated, there is
no relief we could order.3
Mother suggests that we should consider this appeal
regardless of its mootness, because the jurisdictional findings
may be used against her in future proceedings. (In re Drake M.
(2012) 211 Cal.App.4th 754, 762-763 [courts may exercise
discretion to reach the merits of a moot appeal if the challenged
3 Mother does not challenge the joint custody order with
respect to older son; in fact, she sought that order.
5
order could potentially impact future proceedings].) “We are
unconvinced, however, that any ruling we could issue here would
have any practical effect on future dependency proceedings.” (In
re N.S. (2016) 245 Cal.App.4th 53, 63.) Mother admitted the
facts of her prior drug abuse; indeed, her opening brief relies on
the fact that she was “open and honest” about her drug use,
including early in her pregnancy. That fact would certainly be
available in any future proceeding. Mother has failed to show
how the court’s findings, as opposed to the undisputed facts,
would have any adverse effect on her in future proceedings.
Similarly, mother suggests that “finding a parent abused
her child could lead to inclusion in” the Child Abuse Central
Index (CACI). Mother did not argue that the findings in this case
could result in her inclusion in CACI. “Substantiated findings of
general neglect are expressly excluded from those which must be
reported for potential inclusion in CACI; only findings of ‘child
abuse or severe neglect’ are subject to the CACI reporting
obligation. (Pen. Code, § 11169, subds. (a) & (c).)” (In re Emily L.
(2021) 73 Cal.App.5th 1, 14.) There were no allegations of child
abuse in this case, nor does mother argue that the findings here
met the statutory requirements for severe neglect. (See Pen.
Code, § 11165.2, subd. (a) [defining severe neglect to include
failure to protect the child from severe malnutrition, or willfully
causing the child to be placed in a situation such that his health
is endangered].) It is therefore unnecessary for us to address
whether a parent’s possible inclusion in the CACI index is
sufficient to overcome mootness, an issue which is presently
pending before the California Supreme Court. (In re D.P.
(Feb. 10, 2021, B30113), 2021 WL 486159 [nonpub. opn.], review
granted May 26, 2021, S267429.)
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We dismiss the appeal as moot. We express no opinion on
the correctness of the jurisdictional findings.
DISPOSITION
The appeal is dismissed as moot.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
MOOR, J.
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