In re E v. L. CA2/8 ( 2021 )

Filed 3/25/21 In re E.V.-L. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re E.V.-L., a Person Coming B305523
Under the Juvenile Court Law.
______________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 19CCJP06381A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
Edgar V.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Lisa A. Brackelmanns, Commissioner. Dismissed.
Elizabeth Klippi, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and Jacklyn K. Louie, Principal Deputy County
Counsel, for Plaintiff and Respondent.
_______________________
The Department removed infant E.V.-L. from her mother’s
custody after mother tested positive for amphetamine and
methamphetamine at E.V.-L.’s birth. The Department alleged as
bases for jurisdiction that mother abused drugs, preventing her
from properly caring for the child; that mother had failed to
reunite with a previous child; and that father Edgar V. was a
daily user of marijuana, preventing him from properly caring for
the child. The juvenile court sustained each allegation and
detained E.V.-L. Father appeals the jurisdictional and
dispositional orders as to himself but does not challenge the
jurisdictional or dispositional orders relating to mother. Because
father’s contentions, even if meritorious, would not justify a
reversal of the court’s jurisdictional order or the grant of any
effective relief, we decline to address them and dismiss the
appeal.
I
The Department received a referral regarding E.V.-L. when
mother refused to give a urine sample for a drug test at E.V.-L.’s
birth. Mother had tested positive for amphetamines at the birth
of a child three years earlier and failed to reunify with that child
due to substance abuse issues. When mother ultimately provided
a sample, it was positive for amphetamines.
Department social workers visited mother in the hospital to
discuss the positive test result. Mother admitted to using
marijuana but denied using amphetamines, claiming the positive
result was due to medication taken while she was in the hospital.
Further analysis of the sample later confirmed the presence of
both amphetamine and methamphetamine.
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The Department obtained a removal order and detained
E.V.-L. from mother at the hospital, placing her in foster care.
Mother identified father as the biological father of E.V.-L.
The Department spoke with father a few days after E.V.-L.’s
birth. Father agreed to come in and provide a statement that
day. The Department said it would like him to complete a drug
test. Father then said he could not come in that day, but could
the following day. Father told the social worker that he used
marijuana usually once a day to deal with knee pain. Father said
he would be willing to switch to another method of pain relief if
necessary to care for E.V.-L. Father did not show up for his
appointment and drug test the next day.
At the detention hearing, the court found father to be the
presumed father of E.V.-L. The juvenile court ordered E.V.-L.
detained from mother and father. The juvenile court ordered
father and various relatives investigated for potential placement.
After the hearing, the Department sought to speak with
father, but father missed many appointments and stopped
returning the Department’s calls and text messages. The
Department evaluated the possibility of placement with father
while living with a paternal aunt or paternal grandmother and
found neither was appropriate given prior substantiated
allegations of abuse and neglect by both paternal aunt and
paternal grandmother. Father did not visit E.V.-L.
Father did not appear at the next adjudication and
disposition hearing. The juvenile court sustained a section 300
petition finding true that mother has a history of substance abuse
and is a current abuser of amphetamine and methamphetamine,
rendering her incapable of providing E.V.-L. with proper care and
supervision; that mother failed to reunify with a previous child
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due to substance abuse; and that father is a daily user of
marijuana, which renders him incapable of providing E.V.-L.
with proper care and supervision. The court ordered
reunification services for father, including a full drug and alcohol
program with aftercare, random on-demand drug testing, a
12-step program, parenting classes, individual counseling, and
monitored visitation. Father’s counsel objected to all of the
services except the on-demand drug testing.
Father appeals the jurisdictional and dispositional orders of
the court as they relate to him. During the pendency of the
appeal, the juvenile court held a review hearing on September 30,
2020. The juvenile court terminated father’s reunification
services because he had not made substantial progress. The
court set a permanency planning hearing for January 25, 2021.
We take judicial notice of the September 30, 2020 minute order
from this hearing. (See Evid. Code, § 452, subd. (d).)
At our request, the Department and father each filed a
supplemental brief addressing whether subsequent events and
proceedings rendered the appeal moot. With its supplemental
brief, the Department filed a motion asking us to take judicial
notice of the September 2, 2020 minute order and the report the
Department filed with the court in advance of the September 30,
2020 hearing. Because the September 2 order and report provide
the basis for the September 30, 2020 order, we grant the motion.
(Evid. Code, § 452, subd. (d); Code Civ. Proc., § 909; In re
Salvador M. (2005) 133 Cal.App.4th 1415, 1422.)
II
This case does not warrant an exercise of our discretion to
reach the merits of father’s appeal.
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A
Appellate courts will consider only appeals that present
justiciable issues. (See In re I.A. (2011) 201 Cal.App.4th 1484,
1489–1490 (I.A.) [citing 13B Wright et al., Federal Practice and
Procedure (3d ed. 2008) § 3532.1, pp. 372–374].) An important
aspect of justiciability is whether effective relief is available—can
the court provide a remedy that will have a practical and tangible
impact on the parties? (I.A., at p. 1490.)
In the dependency context, issues of justiciability often
arise when a parent seeks review of a jurisdictional finding that
is only one of multiple bases for the juvenile court’s exercise of
jurisdiction over a child. This is because a jurisdictional finding
involving one parent “ ‘is good against both.’ ” (In re X.S. (2010)
190 Cal.App.4th 1154, 1161.) A finding against either parent is
sufficient to bring a child within the juvenile court’s jurisdiction.
(I.A., supra, 201 Cal.App.4th at pp. 1491–1492.) And an exercise
of jurisdiction over a child allows the court to impose orders
relating to either parent, even a nonoffending parent. (Id. at
p. 1492.) Thus, an appellate court may decline to address the
merits of additional jurisdictional findings where one such
finding stands. (Ibid.)
B
Father appeals from the juvenile court’s jurisdictional and
dispositional orders as to him. Neither he nor mother has
challenged the jurisdictional or dispositional orders as to mother.
As discussed above, this means that, even were we to overturn
the juvenile court’s jurisdictional finding as to father, E.V.-L.
would remain a dependent of the court. This also means the
juvenile court would have the power to impose dispositional
orders on father. Father does not identify any effective relief we
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could provide. Under these circumstances, father’s appeal raises
only academic and abstract questions. We decline to address
them.
Father acknowledges we may decline to consider his appeal
given the justiciability issue. However, he argues we should
exercise our discretion in his case for four reasons.
First, father argues the jurisdictional order served as the
basis for the dispositional order he is also appealing. Father
objected at the hearing to all services ordered, except on-demand
testing. At the September 30, 2020 review hearing, the juvenile
court terminated services due to father’s lack of progress.
Father’s appeal of the dispositional order is now moot. A moot
appeal of an inoperative dispositional order does not persuade us
to exercise our discretion.
Second, father argues that, if we reverse the jurisdictional
finding as to him, he would become a nonoffending parent and
could immediately take custody of E.V.-L. This is inaccurate.
The Department evaluated the possibility of placing E.V.-L. with
father at the paternal aunt or paternal grandmother’s homes and
found both unsuitable. Father has refused to cooperate with any
investigation by the Department. Thus, the Department has not
been able to assess whether any placement with father would be
appropriate. Given father’s daily marijuana use and the lack of
any evidence he will alter his conduct, it is speculative whether
the Department ever will place E.V.-L. with father. Because the
juvenile court has asserted jurisdiction over E.V.-L., it has the
power to impose orders on father, even if he were a nonoffending
parent. Father’s failure to comply with past court orders raises
further doubts about whether E.V.-L. could be placed with him as
a nonoffending parent.
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Third, father argues his case raises the issue of “lawful
casual marijuana use,” an issue of broad public importance
capable of evading review. This is not an accurate
characterization of this case. Father uses marijuana daily for
pain relief. He claimed to have a medical marijuana card, but he
has never produced it to the Department. Thus, even assuming
lawful casual marijuana use is an issue of broad public
importance, this case does not present it.
Finally, father argues the juvenile court’s order “could have
legal ramifications for appellant in future dependency or family
law proceedings.” This type of speculative argument does not
warrant an exercise of our discretion.
DISPOSITION
We dismiss the appeal.
WILEY, J.
WE CONCUR:
BIGELOW, P. J.
GRIMES, J.
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