In re Derek A. CA2/7 ( 2023 )

Filed 10/24/23 In re Derek A. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
In re DEREK A., a Person B327632
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No.
22CCJP03584A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
FABIOLA M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Jean M. Nelson, Judge. Dismissed.
Jesse McGowan, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jessica Buckelew, Deputy County
Counsel, for Plaintiff and Respondent.
______________________
The juvenile court declared now-10-year-old Derek A. a
dependent child of the court after sustaining a petition pursuant
to Welfare and Institutions Code section 300, subdivisions (a) and
former (b)(1),1 alleging Fabiola M., Derek’s mother, had engaged
in incidents of domestic violence with her boyfriend in Derek’s
presence and endangered Derek’s physical safety by allowing her
boyfriend to reside in the family home despite his ongoing alcohol
abuse. The sustained petition also alleged Fabiola had medically
neglected Derek by failing to ensure he received surgery to repair
a life-threatening heart defect. On appeal Fabiola challenges
only the jurisdiction finding regarding medical neglect. Because
we cannot grant Fabiola any effective relief, we dismiss the
appeal.
1 The Legislature amended Welfare and Institutions Code
section 300, effective January 1, 2023, in part by rewriting
subdivision (b)(1) to now specify in separate subparagraphs
various ways in which a child may come within the jurisdiction of
the juvenile court as a result of the failure or inability of the
child’s parent or guardian to adequately supervise or care for the
child.
Statutory references are to the Welfare and Institutions
Code unless otherwise stated.
2
FACTUAL AND PROCEDURAL BACKGROUND
1. The Petition and First Amended Petition
On September 14, 2022 the Department filed a section 300
petition alleging, pursuant to subdivisions (a) and former (b)(1),
that Fabiola and her boyfriend, Robert R., had a history of
engaging in violent altercations in Derek’s presence that placed
Derek at substantial risk of serious physical harm.2 In a
separate count pursuant to former subdivision (b)(1), the
Department alleged Fabiola allowed Robert to reside in the
family home despite knowing he was a current abuser of alcohol,
which placed Derek at substantial risk of serious physical harm.
On November 2, 2022 the Department filed a first amended
petition, which added an allegation pursuant to section 300,
former subdivision (b)(1), that Derek was a medically fragile child
who had been diagnosed with several serious medical conditions,
including a serious heart defect. The Department alleged Fabiola
had failed to ensure Derek received surgery to correct the heart
defect and had sabotaged efforts of the Department and the
caregiver to obtain the surgery.3
2 Documents filed in the juvenile court in this case prior to
February 1, 2023 were not included in the record on appeal. The
documents were, however, included in the records in two
previously dismissed appeals filed by Fabiola (B324541 and
B326095). We augment the record on our own motion to include
the records from those cases. (See Cal. Rules of Court,
rule 8.155(a)(1)(A).)
3 One week prior to the filing of the first amended petition,
the juvenile court granted the Department’s request to limit
Fabiola’s medical rights and granted his caretaker (maternal
aunt Veronica M.) authority to provide legal consent for medical
care.
3
2. The Jurisdiction Hearing
According to the detention and jurisdiction/disposition
reports, Fabiola, Robert and Derek lived with Fabiola’s parents
and Fabiola’s adult daughter in a senior living facility. Several
family members and neighbors reported numerous domestic
disturbances in the household with police intervention as often as
once a week. In addition to reports of physical altercations
between Robert and Fabiola, family members stated Fabiola had
hit and kicked her parents at various times. During the most
recent incident in July 2022 Robert and Fabiola called each other
names and pushed and scratched each other. Police were called.
They determined Fabiola had been the aggressor and arrested
her. Derek said he had seen and heard the fight.
In addition to his unrepaired heart defect, Derek had been
diagnosed with cerebral palsy, spasticity, seizure disorder,
asthma, developmental delay and scoliosis. He received his
medications and at least some nutrition through a gastrostomy
tube. His last seizure was in August 2022.
In June 2022 Derek’s cardiologist told Fabiola that Derek’s
heart defect needed to be repaired, and he explained the need for
surgery in detail. The cardiologist’s notes indicated Fabiola was
“reticent” about surgery and did not want to make a decision
until a custody dispute was resolved. The doctor also told Fabiola
he was retiring and she should find a new doctor within the next
two months to get a second opinion. As of October 2022 Fabiola
had not taken any steps to find a new cardiologist or move
forward with the surgery.
When the Department asked Fabiola about the need for
surgery, she initially said Derek needed an ultrasound before the
procedure and he could not get an ultrasound at the hospital
4
because he had not been vaccinated for COVID-19. The
Department noted that the medical records did not indicate a
need for an ultrasound. Fabiola also stated no one had explained
the procedure to her and she was concerned Derek was too small
for surgery. Later, Fabiola claimed she had not scheduled
Derek’s surgery because his father did not consent to it,4 she
could not afford it; there were lapses in Derek’s insurance
coverage; she was moving and dealing with her other children;
and it was put off because of the COVID-19 pandemic.
At the detention hearing the court ordered that Derek
undergo an examination at a Los Angeles County medical hub
clinic. After that examination Derek was referred to a
cardiologist who advised that his heart defect should be repaired
within the next three months. In a later conversation with the
Department, the cardiologist explained the situation was not
urgent but Derek should have the surgery within the next year.
Throughout this process Fabiola repeatedly cancelled
medical appointments for Derek by calling physicians’ offices and
using a mobile application. When asked about this by the
Department, Fabiola denied cancelling appointments, claiming
her phone had been hacked or that Derek’s father had cancelled
the appointments. Fabiola asserted Derek did not need the heart
surgery based on the opinion of his primary care doctor, who was
4 Derek’s father, Israel O., informed the Department Fabiola
had not let him see Derek in three years. He never opposed the
heart surgery nor had there been a custody dispute preventing
the surgery. Israel also stated he had stopped having visits with
Derek because Fabiola would repeatedly call the police to report
him during visits even after visits were moved to a park outside
the police station.
5
not a cardiologist. She also stated the cardiologist recommending
surgery had several serious complaints against him. The
Department determined there were no such complaints. Fabiola
also cancelled multiple appointments the caregiver, maternal
aunt Veronica M., had scheduled to receive training for Derek’s
care. Fabiola was reluctant to give Veronica Derek’s medical
equipment and medication, at one point denying she had the
medication, despite records showing it had been shipped to her
home. She also claimed Derek no longer needed his gastrostomy
tube; however, Derek’s doctor stated Derek needed to take
medication and possibly nutrition through the tube for at least a
few more months.
The Department reported Fabiola had been erratic,
uncooperative and confrontational with the caregiver and
Department staff. Fabiola had called the police multiple times,
requesting welfare checks on Derek while he was residing with
Veronica. She also argued with Department staff during visits
and repeatedly discussed the case with Derek even after being
admonished not to do so. She bombarded Department staff with
telephone calls, emails and text messages regarding visitation
scheduling and what she perceived as the staff’s inappropriate
behavior. Because of Fabiola’s erratic behavior, poor judgment
and baseless accusations, the Department requested Fabiola
undergo a psychiatric evaluation.
At the jurisdiction hearing on January 6, 2023 the juvenile
court sustained the allegations in the first amended petition. The
court noted Fabiola did not deny the domestic violence incidents
had occurred, although she claimed not to be the aggressor, and
there was evidence in the record indicating Fabiola wanted to
continue her relationship with Robert. Turning to the medical
6
neglect allegation, the court found Fabiola had delayed getting
Derek necessary surgery and had otherwise interfered with his
medical care. The court repeatedly expressed concern about
Fabiola’s credibility and judgment. Finally, revisiting its earlier
order limiting Fabiola’s medical rights, the court reiterated its
finding there was clear and convincing evidence it was in Derek’s
best interests for Fabiola not to be involved in making medical
decisions for him.
3. The Disposition Hearing
In a report filed February 1, 2023 the Department informed
the court Derek had successfully undergone heart surgery
three weeks earlier and was recovering well. Derek had failed
hearing tests in both ears and might require hearing assistance
devices. The Department also reported Fabiola had continued to
be uncooperative and combative with Department staff and there
were ongoing concerns about her judgment and credibility. The
Department again requested Fabiola be required to undergo a
psychiatric evaluation.
At the disposition hearing on February 8, 2023 the juvenile
court removed Derek from Fabiola, finding by clear and
convincing evidence that Derek was at risk of harm in Fabiola’s
care. In making this finding the court relied on the repeated and
recent domestic violence in the home, as well as Fabiola’s refusal
to ensure Derek was receiving critical medical care. The court
found, if Derek were released to Fabiola, she would continue to
rely on medical professionals who lacked specialized training.
The court agreed with the Department that there were signs of
an undiagnosed mental health condition, noting Fabiola lacked
understanding of her situation, and appointed an expert
pursuant to Evidence Code section 730 to examine Fabiola. The
7
court stated that Fabiola’s “focus is on fighting with the
Department, rather than focusing on [Derek’s] needs.”
The court ordered family reunification services and
monitored visits for Fabiola for three hours per week in a neutral
setting. Fabiola filed a timely notice of appeal.5
DISCUSSION
“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. 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 effective relief. 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.” (In re D.P. (2023) 14 Cal.5th 266, 276 [cleaned
up].)
5 In addition to the current appeal Fabiola filed multiple
appeals from nonappealable orders entered prior to the
disposition hearing, which we dismissed (B324541, B326095 and
B326333), and has pending appeals from a May 10, 2023 order
reducing her visitation time (B329302), a July 10, 2023 order
regarding the psychiatric evaluation (B330720) and orders
entered at the August 9, 2023 six-month review at which the
court found that Fabiola’s compliance with her case plan had only
been partial and that returning Derek to Fabiola’s physical
custody would create a substantial risk of detriment to the child
(B331754).
8
Fabiola contends the court’s jurisdiction finding of medical
neglect is not supported by substantial evidence. However, even
if we were to agree with Fabiola and reverse the jurisdiction
finding of medical neglect, jurisdiction over Derek would continue
based on the court’s sustained jurisdiction findings regarding
domestic violence and Robert’s substance abuse. (See In re D.P.,
supra, 14 Cal.5th at pp. 283-284 [“where there are multiple
findings against one parent[,] the validity of one finding may
render moot the parent’s attempt to challenge the others”];
In re Ashley B. (2011) 202 Cal.App.4th 968, 979 [“[a]s long as
there is one unassailable jurisdictional finding, it is immaterial
that another might be inappropriate”]; see also In re M.W. (2015)
238 Cal.App.4th 1444, 1452; In re Briana V. (2015)
236 Cal.App.4th 297, 310-311.) Nor would a reversal of the
medical neglect finding limit the court’s authority to make all
orders necessary to protect Derek: The juvenile court’s “broad
discretion to determine what would best serve and protect the
child’s interest and to fashion a dispositional order in accord with
that discretion, permits the court to formulate disposition orders
to address parental deficiencies when necessary to protect and
promote the child’s welfare, even when that parental conduct did
not give rise to the dependency proceedings.” (In re K.T. (2020)
49 Cal.App.5th 20, 25; accord, In re Briana V., at p. 311 [“The
problem that the juvenile court seeks to address need not be
described in the sustained section 300 petition. [Citation.] In
fact, there need not be a jurisdictional finding as to the particular
parent upon whom the court imposes a dispositional order”];
In re I.A. (2011) 201 Cal.App.4th 1484, 1492 [“[a] jurisdictional
finding involving the conduct of a particular parent is not
necessary for the court to enter orders binding on that parent,
9
once dependency jurisdiction has been established”]; see
generally § 362, subd. (a) [the juvenile court “may make any and
all reasonable orders for the care, supervision, custody, conduct,
maintenance, and support of the child”].) Accordingly, reversal
would have no effect on the court’s jurisdiction over Derek or
mandate a change to the disposition order. Because we can
provide no effective relief to Fabiola—that is, relief that “‘can
have a practical, tangible impact on the parties’ conduct or legal
status’” (In re D.P., at p. 277)—her appeal is moot.
Fabiola contends her appeal is not moot because the
medical neglect finding formed the basis for the court’s
disposition order removing Derek from Fabiola’s custody—an
order that continues to adversely affect Fabiola. While this may
be true, Fabiola has not challenged the disposition order on
appeal. She provides no argument that the removal order was
unsupported by clear and convincing evidence that Derek would
be at substantial risk of physical or emotional harm if Derek were
returned to her care, nor does she suggest any reasonable means
by which Derek could have been protected without removal. (See
§ 361, subd. (c).) Accordingly, even if the medical neglect finding
were reversed, Fabiola has not established any basis on which we
could (or should) reverse the disposition order.6
6 Without directly challenging the disposition order, Fabiola
argues we should reverse the medical neglect finding and remand
the matter for the juvenile court to reconsider its disposition
order. However, the court removed Derek from Fabiola’s care
based on several factors, including ongoing domestic violence and
Fabiola’s erratic behavior and inability to prioritize Derek’s
needs. Nothing in the record suggests the court would make
different orders at disposition if the medical neglect finding were
10
Fabiola also argues we should exercise our discretion to
consider her moot appeal because the medical neglect finding is
particularly egregious and could impact future dependency
proceedings. However, such a speculative claim of future harm is
insufficient to obviate mootness. (In re D.P., supra, 14 Cal.5th at
p. 278.) In addition, Fabiola does not dispute the central fact
underlying the medical neglect finding—she did not schedule a
procedure to repair Derek’s heart defect. While she maintains
she had valid reasons for her decision, in light of her concession
and the evidence from Derek’s doctors that he needed the
surgery, all of which will be admissible in any future proceedings
involving Derek, the court’s additional finding that Fabiola’s
failure to pursue the recommended treatment constituted neglect
is not particularly harsh or extreme. No other factor justifies
reaching the merits of this moot appeal.
DISPOSITION
The appeal is dismissed as moot.
PERLUSS, P. J.
We concur:
SEGAL, J. MARTINEZ, J.
reversed. And, as discussed, Fabiola made no showing the
disposition order requires reversal.
11