In re Kenneth S. CA4/2 ( 2024 )

Filed 2/13/24 In re Kenneth S. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re KENNETH S. et al., Persons
Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent, E081299
v. (Super.Ct.Nos. J293009, J293010,)
J293011)
N.A. et al., OPINION
Defendants and Respondents;
KENNETH S. et al.,
Appellants.
APPEAL from the Superior Court of San Bernardino County. Annemarie G.
Pace, Judge. Dismissed.
Marisa L.D. Conroy, under appointment by the Court of Appeal, for Appellants
Kenneth S. et al.
Tom Bunton, County Counsel, and Joseph R. Barrell, Deputy County Counsel for
Plaintiff and Respondent.
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Tracy M. De Soto, under appointment by the Court of Appeal, for Defendant and
Respondent, Robert S.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and
Respondent, N.A.
The juvenile court took jurisdiction over Kenneth S. after the one-month-old infant
suffered a fractured femur while in the care of his parents, N.A. (Mother) and Robert S.
(Father). The court also took jurisdiction over Kenneth’s half-sisters, T.B. and Trinity B.
The children appeal, arguing that the court erred by finding not true allegations of severe
physical abuse. (Welf. & Inst. Code, § 300, subd. (e); unlabeled statutory citations refer
to this code.) They also argue that the court erred by ordering reunification services for
Mother.
While this appeal was pending, the court returned all of the children to Mother’s
custody and terminated jurisdiction. In light of those events, we conclude that the appeal
is moot. We accordingly dismiss the appeal.
BACKGROUND
This case began in April 2022, when CFS received a referral alleging physical
abuse by the parents. Mother and Father had taken Kenneth to the hospital, where he was
diagnosed with a broken femur. Three-year-old T.B. and two-year-old Trinity were
staying with family.
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A forensic pediatrician who examined Kenneth stated that the child’s fracture was
the result of someone violently bending or twisting his leg, causing the bone to snap into
two pieces. According to the doctor, the medical findings were consistent with physical
abuse.
Initially, neither parent could explain how Kenneth broke his femur. But Mother
eventually explained that when she was putting lotion on Kenneth, she flipped him from
his back to his stomach by grabbing his ankle and rotating it. The movement caused the
child’s legs to cross and his hips and shoulders to rotate. Mother said that the incident
must have caused the broken femur, and she did not intentionally injure Kenneth. Both
parents believed that Kenneth might have a genetic bone disorder.
San Bernardino County Children and Family Services (CFS) filed petitions with
respect to each of the three children. Kenneth’s petition alleged that he fell within
subdivisions (a), (b), and (e) of section 300. In substance, the petition alleged that (1)
Mother and Father physically abused Kenneth, and (2) both parents had substance abuse
issues. T.B.’s and Trinity’s petitions alleged that they fell within subdivisions (a), (b),
and (g) of section 300. Specifically, the petitions alleged that (1) the parents’ abuse of
Kenneth placed the children at substantial risk of similar harm or abuse, (2) Mother had
substance abuse issues, and (3) the girls’ father (M.B.) left them without any provision
for support. (M.B. is not a party to this appeal.)
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The court continued the jurisdiction and disposition hearing numerous times so
that additional medical testing could be completed, medical records could be obtained,
and experts could offer written opinions. The contested hearing occurred on two days in
December 2022 and March 2023.
The juvenile court found not true the allegations against both parents that Kenneth
suffered severe physical abuse under subdivision (e) of section 300. The court also found
not true the allegations that the parents had substance abuse issues and all of the
remaining allegations against Father. As for the allegations against Mother under
subdivisions (a) and (b) of section 300, the court amended them and found them true as
amended. It also found true the section 300, subdivision (g), allegation that M.B. had left
Trinity and T.B. without any provision for support, and his location was unknown.
The court declared all three children dependents of the court, removed them from
Mother’s custody, and ordered reunification services for Mother. The court also removed
T.B. and Trinity from M.B. and placed the children in CFS’s custody. It placed Kenneth
in Father’s custody on the condition that Mother not live in the home, and it ordered
family maintenance services for Father.
The children filed their notice of appeal in May 2023. At a review hearing in July
2023, the court returned all three children to Mother’s custody and scheduled a
semiannual review hearing. (Kenneth remained in Father’s custody.) At the review
hearing in January 2024, the court dismissed the petitions and terminated jurisdiction
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over all three children. The court found that the parents had completed the case plan and
that the conditions justifying dependency jurisdiction no longer existed.1
DISCUSSION
Courts are tasked with deciding actual controversies by a judgment that can be
carried into effect. (In re D.P. (2023) 14 Cal.5th 266, 276.) Generally, it is not our duty
to render opinions on moot questions or abstract propositions. (Ibid.) An appeal
becomes moot when events make it impossible for us to grant the appellant any effective
relief. (Ibid.) “For relief to be ‘effective,’” the appellant “must complain of an ongoing
harm,” and “the harm must be redressable or capable of being rectified by the outcome
the [appellant] seeks.” (Ibid.)
When an appeal is moot, we nevertheless have discretion to reach the merits of the
dispute. (In re D.P., supra, 14 Cal.5th at p. 282.) We may exercise that discretion if the
case presents an issue of broad public interest that is likely to recur and evade review.
(Ibid.; Conservatorship of Wendland (2001) 26 Cal.4th 519, 524, fn. 1.)
This appeal is moot. Even if the juvenile court erred by finding not true the
allegations of severe physical abuse and ordering reunification services for Mother, a
reversal of the jurisdictional finding and dispositional orders would not affect the
outcome of the proceedings. The juvenile court’s subsequent orders returned the children
1 We granted Mother’s request for judicial notice of the July 2023 minute orders
and invited the parties to file supplemental briefs regarding mootness. Mother filed a
second request for judicial notice on January 29, 2024, and Father joined in that request.
We grant the second request and take judicial notice of the juvenile court’s January 2024
minute orders terminating jurisdiction, which are attached to the second request as
Exhibit A.
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to both parents and terminated jurisdiction, superseding the challenged findings and
orders. Mother has reunified with the children, Father maintained custody of Kenneth,
and the court found that the conditions justifying the initial assumption of jurisdiction no
longer exist. In light of the subsequent orders and incorporated findings, it is impossible
for us to grant the children any effective relief.
The children and CFS nevertheless urge us to reach the merits of the appeal. They
contend that the court misinterpreted subdivision (e) of section 300 and the relevant
bypass provision (§ 361.5, subd. (b)(6)), issues that are of broad public interest and likely
to recur. We are not persuaded. First, there is no reason to believe that the claimed
misinterpretations of the statutes are recurring issues in the juvenile courts, as opposed to
one-off erroneous interpretations. (See Renee S. v. Superior Court (1999) 76 Cal.App.4th
187, 192 [exercising discretion to reach a moot issue because the record demonstrated
that the challenged practice was widespread in the county’s juvenile courts].) Second,
assuming that the claimed misinterpretations are likely to recur, there is no showing that
the issues are likely to evade review in the future. (Delta Stewardship Council Cases
(2020) 48 Cal.App.5th 1014, 1054 [declining to decide moot issues when no party
demonstrated that the issues were likely to recur and no party contended that the issues
would evade review].) Countless published decisions involve review of juvenile courts’
jurisdictional findings and dispositional orders. We consequently have no reason to
doubt that if the claimed errors recur, then the appellate courts will be able to address
them in a case that is not moot.
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DISPOSITION
The appeal is dismissed as moot.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
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