In re Mason C. CA2/7 ( 2023 )

Filed 7/12/23 In re Mason C. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re MASON C. et al., Persons B318507
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No.
21CCJP03450A-C)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
DARLENE C.,
Defendant and Appellant.
APPEALS from orders of the Superior Court of Los Angeles
County, Martha Matthews and Nancy Ramirez, Judges.
Dismissed as moot.
David M. Thompson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel and Tracey Dodds, Principal Deputy
Counsel, for Plaintiff and Respondent.
_______________________________
The juvenile court in February 2022 declared then-10-year-
old Mason C., two-year-old Mariah A. and seven-month-old
Marisol G. dependent children of the court after sustaining
allegations pursuant to Welfare and Institutions Code former
section 300, subdivision (b)(1),1 that Marisol had a positive
1 Senate Bill No. 1085 (2021-2022 Reg. Sess.) (Stats. 2022,
ch. 832, § 1), effective January 1, 2023, amended Welfare and
Institutions Code section 300, in part, by rewriting
subdivision (b)(1), to now provide in separate subparagraphs that
a child comes within the jurisdiction of the juvenile court if
“(1) The child has suffered, or there is a substantial risk that the
child will suffer, serious physical harm or illness, as a result of
any of the following: [¶] (A) The failure or inability of the child’s
parent or guardian to adequately supervise or protect the child.
[¶] (B) The willful or negligent failure of the child’s parent or
guardian to adequately supervise or protect the child from the
conduct of the custodian with whom the child has been left. [¶]
(C) The willful or negligent failure of the parent or guardian to
provide the child with adequate food, clothing, shelter, or medical
treatment. [¶] (D) The inability of the parent or guardian to
provide regular care for the child due to the parent’s or
guardian’s mental illness, developmental disability, or substance
abuse.”
New section 300, subdivision (b)(2), provides, “(2) A child
shall not be found to be a person described by this subdivision
solely due to any of the following: [¶] (A) Homelessness or the
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toxicology screen for amphetamine at birth; the children’s
mother, Darlene C., was a recent user of amphetamine, which
interfered with her ability to provide the children with
appropriate care and supervision; Darlene’s male companion
Marco G. (Mariah and Marisol’s presumed father) had a history
of illicit drug use that endangered the children’s safety; and
Darlene, knowing of Marco’s serious drug problem, failed to
protect the children by allowing Marco to reside in the children’s
home and to have unlimited access to the children. The children
remained released to Darlene under the supervision of the
Los Angeles County Department of Children and Family
Services.
Darlene appealed, challenging only the jurisdiction findings
concerning the danger to the children from her use of
amphetamine shortly before Marisol was born. While her appeal
was pending, the court terminated dependency jurisdiction with
juvenile court custody orders granting Darlene joint physical and
legal custody of Mason (with his nonoffending presumed father,
Rafael C.) and sole physical custody of Mariah and Marisol. We
dismiss Darlene’s appeal as moot.
lack of an emergency shelter for the family. [¶] (B) The failure of
the child’s parent or alleged parent to seek court orders for
custody of the child. [¶] (C) Indigence or other conditions of
financial difficulty, including, but not limited to, poverty, the
inability to provide or obtain clothing, home or property repair, or
childcare.”
All statutory references are to the Welfare and Institutions
Code.
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FACTUAL AND PROCEDURAL BACKGROUND
In late June 2021 the Department received a referral
stating Darlene and her newborn child had tested positive for
amphetamine. Darlene denied knowingly consuming
amphetamine, claiming she had been given what she believed
was an over-the-counter pain pill by a friend two days before the
birth when she was experiencing contractions. She insisted she
had no current or past history with drugs and agreed to drug test
if necessary. Darlene acknowledged she had not had any in-
person prenatal care, explaining she only had “scattered”
telehealth appointments due to COVID-19 protocols.
The Department filed a non-detain petition on behalf of the
children on July 26, 2021 pursuant to former section 300,
subdivision (b)(1) (failure to protect). At the detention hearing
the juvenile court found a prima facie case existed that the
children were minors described by section 300 but allowed their
continued release to their parents (Mason to Darlene and Rafael;
Mariah and Marisol to Darlene and Marco).
On December 1, 2021 the Department filed a section 385
petition to remove Mariah and Marisol from Marco’s custody
based on Marco’s positive tests for marijuana and
methamphetamine. The juvenile court issued a removal order on
December 6, 2021. At approximately the same time Darlene
moved with all three children from the family residence to her
parents’ home.
The jurisdiction hearing took place over several days in
December 2021 and January and February 2022. Marco pleaded
no contest to an amended petition alleging, in part, that he had a
history of illicit drug use and had a positive test for
methamphetamine on November 16, 2021 while the dependency
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case was pending. Darlene and two Department social workers
testified. The evidence before the court indicated Darlene was in
full compliance with services, including participation in alcohol
and drug education and relapse prevention classes and negative
tests for drugs. The social workers found Darlene’s care created
no child safety issues.
On February 8, 2022 the court sustained the petition’s
allegation pursuant to former section 300, subdivision (b)(1), that
Marisol was born suffering from a detrimental condition
consisting of a positive toxicology screen for amphetamine, which
placed the child at risk of serious physical harm. After changing
“current” to “recent,” the court also sustained the allegation that
Darlene was a recent user of amphetamine, which rendered her
incapable of providing regular care for Marisol and interfered
with her ability to provide appropriate care and supervision for
all three children. Finally, in addition to its findings that Marco
had a history of illicit drug use and had recently tested positive
for methamphetamine, the court sustained the allegation that
Darlene had failed to protect the children by allowing Marco to
reside in the children’s home and have unlimited access to them.
Explaining its ruling on the first count, the court stated it
did not find credible Darlene’s explanation why she and her
newborn child had tested positive for amphetamine. The court
also expressed its concern that Darlene went for at least five
months after she knew she was pregnant without seeing a doctor,
which created a clear health risk to the child.2
2 The court acknowledged that Marisol was a healthy baby.
“But,” the court observed, “the reason people get prenatal care is
to make sure everything is all right.”
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With respect to the second count, the court commended
Darlene for the positive steps she had been taking, “even though
she’s still sort of fighting the factual allegations in this case,”
referring to her vehement denial of knowingly taking illegal
drugs during her pregnancy.
The court declared the children dependents of the court,
allowed them to remain in Darlene’s care under the supervision
of the Department and ordered family maintenance services for
Darlene and enhancement services for Marco. The court, again
agreeing that Darlene was doing well, scheduled a section 364
review hearing in three months.
In its report for the review hearing the Department stated
Darlene had fully cooperated and was in complete compliance
with court-ordered programs and services, including an
outpatient drug treatment program with aftercare, weekly
therapy sessions and negative drug tests. At the review hearing
on May 10, 2022 the court, in accord with the Department’s
recommendations, terminated its jurisdiction and several days
later signed juvenile custody orders granting Darlene and Rafael
joint physical and legal custody of Mason and Darlene sole
physical custody and Darlene and Marco joint legal custody of
Mariah and Marisol.
Darlene filed timely notices of appeal from the February 8,
2022 jurisdiction findings and disposition orders and the May 10
and May 13, 2022 orders terminating jurisdiction and juvenile
custody orders. We ordered the two appeals consolidated.
In her opening brief, although conceding Marisol had tested
positive for amphetamine at birth, Darlene argued there was
insufficient evidence to support the juvenile court’s finding the
child was born with any condition that placed her at risk of
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serious physical harm. Similarly, Darlene argued substantial
evidence did not support the finding that her recent use of
amphetamine—a single, one-time use (whether intentional or
inadvertent)—created an ongoing risk to the children’s physical
health and safety. Darlene did not challenge the court’s
additional jurisdiction findings regarding Marco’s substance
abuse and Darlene’s failure to protect the children from Marco.
Nor did she argue the court erred in terminating jurisdiction on
May 10, 2022 or entering the May 13, 2022 custody orders.
DISCUSSION
1. In re D.P.: Moot Dependency Appeals and Our
Discretion To Decide Them
The Supreme Court in In re D.P. (2023) 14 Cal.5th 266explained the mootness doctrine and confirmed it applied to
dependency appeals: “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.”’ [Citation.] 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.”’ [Citation.] 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.” (Id. at p. 276.)
In In re D.P., the juvenile court had terminated its
jurisdiction without issuing any order that continued to impact
the parents. (In re D.P., supra, 14 Cal.5th at p. 277.) In that
context, the Court held, “relief is effective when it ‘can have a
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practical, tangible impact on the parties’ conduct or legal status.’
[Citation.] 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 plaintiff’s legal status that is capable of being redressed by
a favorable court decision.” (Ibid.) The Court gave as examples
of nonmoot challenges to jurisdiction findings cases in which a
jurisdiction finding affected parental custody rights, curtailed a
parent’s contact with his or her child or resulted in disposition
orders that continued to adversely affect a parent. (Id. at
pp. 277-278.) The Court expressly held, disapproving contrary
case law, that “speculative future harm” is not sufficient to avoid
mootness. (Id. at p. 278.)3
Despite its reaffirmation of the applicability of the
mootness doctrine to dependency appeals, the Supreme Court
3 Specifically addressing the appellant father’s argument
that the challenged jurisdiction finding of neglect could result in
his inclusion in California’s Child Abuse Central Index (CACI)
(Pen. Code, § 11170), which carries several legal consequences,
the Supreme Court noted that, when a child protective agency
forwards a substantiated report of abuse or neglect to the
California Department of Justice for inclusion in CACI, it must
provide written notice to the person whose conduct was reported.
(In re D.P., supra, 14 Cal.5th at p. 279.) Absent evidence in the
record that any such report had been submitted or a showing that
the type of neglect allegation at issue in the case (“general
neglect,” rather than “severe neglect”) was even reportable, the
Court held, “Father’s CACI claim is too speculative to survive a
mootness challenge.” (Id. at p. 280.)
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emphasized that, even when a case is moot, courts may exercise
their “inherent discretion” to reach the merits of the dispute.
(In re D.P., supra, 14 Cal.5th at p. 282.) That discretion, the
Court explained, is generally exercised only 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. (Ibid.)
Nevertheless, because features of dependency proceedings
tend to make appeals prone to mootness problems, the Court,
without intending to be exhaustive, identified several additional
factors for the courts of appeal to evaluate when deciding
whether discretionary review of a moot case may be warranted
outside of those instances. (In re D.P., supra, 14 Cal.5th at
pp. 284-286.) First, a court may analyze whether the challenged
jurisdiction finding could potentially impact the current or future
dependency proceedings, for example, by influencing the child
protective agency’s decision to file a new dependency petition or
the juvenile court’s determination about further reunification
services. (Id. at p. 285.) Second, a court may take into account
the nature of the allegations against the parent: “The more
egregious the findings against the parent, the greater the
parent’s interest in challenging such findings.” (Id. at p. 286.)
Third, a court may consider whether the case became moot due to
prompt compliance by the parents with their case plan: “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.” (Ibid.)
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2. Discretionary Review of This Moot Appeal Is Not
Warranted
Emphasizing that the dependency case was terminated
with orders granting Darlene custody of her children and, as a
consequence, Darlene is no longer under the supervision of the
Department, the Department has requested we dismiss Darlene’s
appeal as moot. Anticipating that request, in her opening brief
Darlene urges us to review the merits of her challenge to the
findings relating to her substance abuse (but not to her failure to
protect the children from exposure to Marco and his drug use)
because she could suffer prejudice in future dependency or family
law proceedings from the juvenile court’s incorrect findings.
Because we can provide no effective relief to Darlene—that
is, relief that “‘can have a practical, tangible impact on the
parties’ conduct or legal status’” (In re D.P., supra, 14 Cal.5th at
p. 277)—her appeal is moot. And after considering the factors
identified in In re D.P., we decline to exercise our discretion to
consider a moot appeal.
In an argument devoid of specificity, Darlene contends the
juvenile court’s incorrect jurisdiction findings and order could
prejudice her in future dependency or family law proceedings.
She also asserts our failure to review the merits of her appeal
will encourage the Department to pursue jurisdiction in similar
meritless cases. As discussed, however, the Supreme Court held
the type of speculative future harm posited by Darlene is
insufficient to avoid mootness. (In re D.P., supra, 14 Cal.5th at
p. 278.) And unlike In re J.S. (2020) 47 Cal.App.5th 1036, upon
which Darlene relies and where the court of appeal reached the
merits of an arguably moot case to address the broad and largely
unresolved question when use of marijuana becomes substance
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abuse (id. at p. 1046), whether Darlene’s intentional use of
amphetamine during the final days of her pregnancy created a
substantial risk of harm to her child does not present an issue of
broad public interest. (See In re Rashad D. (2021) 63 Cal.App.5th
156, 159 [fact-specific question whether the mother’s current
circumstances created a substantial risk of serious physical harm
to her young son is the type of issue presented to appellate courts
multiple times every year]; In re M.C. (2011) 199 Cal.App.4th
784, 802 [same].)
No other factor justifies reaching the merits of this moot
appeal. (See In re D.P., supra, 14 Cal.5th at p. 286 [“no single
factor is necessarily dispositive of whether a court should exercise
discretionary review of a moot appeal”].)4 In light of the
necessary concession by Darlene that Marisol tested positive for
amphetamine at birth, the additional findings concerning the
impact of Darlene’s use of an illicit drug on her ability to care for
her children are not particularly egregious. Moreover, in any
future dependency or family law proceeding, Darlene will be able
to demonstrate the court in this case never detained the children
from her, complimented her on her positive efforts to deal with
any substance abuse issues and terminated its jurisdiction with
orders granting Darlene custody of her children not long after
assuming jurisdiction over them. Exercise of our discretionary
authority to consider the merits of Darlene’s moot appeal is not
warranted.
4 Under the facts of this case, there is no reason to believe
the decision not to exercise our discretion to review Darlene’s
moot appeal will disincentivize prompt compliance with juvenile
court orders in future cases.
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DISPOSITION
The appeal is dismissed as moot.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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