In re M.P. CA2/1 ( 2021 )

Filed 9/29/21 In re M.P. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 M.P., et al., B311035
Persons Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. 20LJJP00089)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
SONIA E.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Robin R. Kesler, Temporary Judge. Dismissed.
Johanna R. Shargel, 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.
____________________
Sonia E. (Mother) appeals from orders of the juvenile court
asserting jurisdiction over her two children following an incident
of domestic violence during which Christian P. (Father)
repeatedly punched Mother in the face in front of their one-year-
old daughter. The juvenile court cited both parents’ consistent
denials of domestic violence as key factors supporting the ongoing
risk of harm to both children and necessitating jurisdiction.
Mother appealed, asserting that a single incident of
domestic violence could not support dependency jurisdiction
because it did not demonstrate an ongoing, serious risk of harm
to the children, especially because the jurisdictional hearing took
place over one year after that incident.
After Mother filed her appeal, the juvenile court returned
both children to their parents’ custody and terminated its
jurisdiction. Mother does not argue, and we do not find, that the
sustained jurisdictional allegations against mother will have any
meaningful effect on future proceedings. Accordingly, we dismiss
Mother’s appeal as moot.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has two children with Father, three-year-old M.P.
and one-year-old Cristian P. In December 2019, the Los Angeles
County Department of Child and Family Services (the
Department) investigated the family after receiving a report of
domestic violence between the parents. Father allegedly held
Mother down on the bed and punched her in the face three times,
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in front of M.P., before fleeing the home on foot. Police responded
to the scene and took photos of Mother’s visible injuries,
including redness and swelling on the right side of her face.
Mother obtained an emergency protective order against
Father, and, when first visited by social workers on January 6,
2020, indicated that she and Father no longer resided together.
However, she also recanted her prior allegations of Father’s
physical abuse and denied that any domestic violence took place
in front of M.P. By January 23, 2020, the emergency protective
order had expired and Father, who also denied any domestic
violence, had moved back into the family home.
On February 11, 2020, the Department filed a petition
alleging that the children were subject to dependency jurisdiction
pursuant to Welfare and Institutions Code section 300,
subdivisions (a) and (b)(1). The petition alleged two counts
against both parents due to their “history of engaging in violent
altercations in the presence of the child.” Count a-1 alleged that
Father’s violent conduct and mother’s failure to protect M.P.
created “a substantial risk that the child will suffer[ ] serious
physical harm inflicted nonaccidentally upon the child by [her]
parent[s].” Count b-1 alleged that the same conduct posed
additional risks of serious harm to M.P. “as a result of the failure
or inability of [her] parent[s] . . . to supervise or protect the child
adequately.”
The children were not removed from the parents’ custody
because the Department determined that reasonable efforts,
including participation in family maintenance services, were
available. Instead, the juvenile court ordered Mother and Father
to comply with a voluntary family maintenance plan.
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Although the jurisdiction hearing was scheduled for
April 9, 2020, it was ultimately continued until 2021 because of
delays caused by the COVID-19 pandemic. In the interim,
Cristian P. was born.
The Department filed a non-detained dependency petition,
alleging that jurisdiction over Cristian P. would be appropriate
for the same reasons alleged in the February 11, 2020 petition.
The petition contained three counts as to Cristian P.: counts a-1
and b-1, which replicated the analogous counts in M.P.’s petition,
while count j-1 alleged that the parents’ “history of engaging in
violent altercations in the presence of the child’s sibling” created
a substantial risk that Cristian P. would be subject to similar
abuse.
On October 20, 2020, the juvenile court detained Cristian
P. and set a jurisdictional hearing to occur simultaneously with
the hearing on M.P.’s petition.
On January 12, 2021, the time of the combined
jurisdictional hearing for M.P. and Christian P., Mother had
completed a 10-week parenting program. However, she
continued to deny that domestic violence took place. The juvenile
court expressed concern that Mother “ha[d]n’t learned through
the programs that she attended,” and that “she continues to deny
the severity of this event.” These concerns, coupled with Father’s
failure to engage in services, led the court to conclude that the
children were still at risk of harm from the parents’ history of
domestic violence.
Accordingly, the juvenile court sustained M.P.’s
dependency petition as pled. It also sustained count j-1 of
Cristian P.’s petition, dismissing the remaining counts. The
court allowed the children to remain in parental custody on the
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condition that both parents complied with family prevention
services. A six-month review hearing was set for July 12, 2021.
On February 26, 2021, mother filed a timely notice of
appeal.
On July 23, 2021, the Department advised us of the status
report it had submitted to the juvenile court on June 22, 2021.
Because both parents had completed their required family
maintenance plan, the report recommended that the juvenile
court dismiss the case and that Mother and Father be given joint
custody of both children.
On July 12, 2021, the juvenile court terminated
jurisdiction, finding that “those conditions which would justify
the initial assumption of jurisdiction under . . . section 300 no
longer exist and are not likely to exist if supervision is
withdrawn.”
DISCUSSION
“[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.” (In re N.S. (2016) 245
Cal.App.4th 53, 60.) “As a general rule, an order terminating
juvenile court jurisdiction renders an appeal from a previous
order in the dependency proceedings moot.” (In re C.C. (2009)
172 Cal.App.4th 1481, 1488.) If the reviewing court determines a
dependency appeal is moot, the proper remedy is to dismiss the
appeal. (See In re N.S., supra, at p. 59.)
We previously took judicial notice of the juvenile court’s
subsequent termination of jurisdiction in this case. The
Department argues that this termination renders Mother’s
appeal of the court’s jurisdictional orders moot. Pursuant to the
general rule recognized by the In re C.C. court, we agree.
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Mother did not argue against mootness in her opening
brief, and she did not exercise her right to reply to the
Department’s arguments regarding mootness. In any event, we
will briefly evaluate whether the jurisdictional orders in this case
reasonably could impact Mother in future dependency
proceedings.1
Mother never lost custody of the children, and the juvenile
court awarded her joint physical and legal custody before
terminating its jurisdiction. In that dependency proceedings
have terminated, the court’s prior orders requiring Mother to
comply with family maintenance services are no longer operative.
Under these circumstances, we cannot provide effective relief to
Mother.
It also does not appear that the juvenile court’s
jurisdictional orders could adversely affect Mother in future
proceedings. Father did not appeal the jurisdictional findings
against him, to the effect that the underlying facts of the physical
altercation between Mother and Father will remain in Mother’s
record regardless of our ruling here.
The juvenile court’s termination of jurisdiction itself
provides additional mitigation against future prejudice. By
terminating jurisdiction and simultaneously awarding Mother
1Although we have previously concluded that an
appellant’s failure to file a reply brief does not constitute an
admission that her appeal lacks merit (see Ellerbee v. County of
Los Angeles (2010) 187 Cal.App.4th 1206, 1218, fn. 4), other
appellate courts have held that failing to file a reply brief
concedes the respondent’s position (Johnson v. English (1931) 113
Cal.App. 676, 677 [“Appellant, by failing to file a reply brief,
concedes that respondent’s position is unassailable”]).
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joint legal and physical custody, the juvenile court impliedly
found that Mother had changed her behavior and no longer
presented a substantial risk of serious harm to her children.
In future dependency proceedings, the Department will
have to prove any allegations against Mother by showing that her
behavior has changed significantly enough to overcome the
juvenile court’s favorable assessment of Mother’s current
parenting capabilities. (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”
(italics added)].) Similarly, a family law court can modify the exit
order awarding joint physical and legal custody to mother only if
there is “ ‘a significant change of circumstances since the juvenile
court issued the order.’ ” (In re Cole Y. (2015) 233 Cal.App.4th
1444, 1456, italics added.)
Under these circumstances, any impact that the prior
jurisdictional orders could have on subsequent dependency
proceedings is entirely speculative. Accordingly, we dismiss this
appeal as moot.
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DISPOSITION
We dismiss Mother’s appeal of the juvenile court’s
jurisdictional orders.
NOT TO BE PUBLISHED
CRANDALL, J.*
We concur:
CHANEY, J.
BENDIX, Acting P. 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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