In re Sofia R. CA2/7 ( 2024 )

Filed 2/5/24 In re Sofia R. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re SOFIA R. et al., Persons B321211
Coming Under the Juvenile Court
Law. (Los Angeles County
Super. Ct. No. 22CCJP01114B-D)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
DAVID R.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Stephen C. Marpet, Juvenile Court Referee. Dismissed.
William D. Caldwell, 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
County Counsel, for Plaintiff and Respondent.
________________________
INTRODUCTION
David R. appeals from the juvenile court’s May 17, 2022
jurisdiction findings and disposition orders declaring his children
Sofia R., Rey R., and Ryan R. dependent children of the court,
removing them from David’s custody and placing them with their
mother Blanca E. with monitored visits by David, and issuing a
three-year restraining order limiting David from contact with
Blanca or the children except for court-ordered visitation.
While this appeal was pending, on May 1, 2023 the juvenile
court modified the restraining order to eliminate the children
from the restraining order, and on May 8 the juvenile court
terminated jurisdiction and released the children to Blanca, with
a custody order granting sole legal and physical custody to
Blanca and unmonitored visitation to David. David did not
appeal from those orders.1
1 “When terminating its jurisdiction over a child who has
been declared a dependent child of the court, section 362.4
authorizes the juvenile court to issue a custody and visitation
order (commonly referred to as an ‘exit order’) that will become
part of the relevant family law file and remain in effect in the
family law action ‘until modified or terminated by a subsequent
order.’” (In re T.S. (2020) 52 Cal.App.5th 503, 513; see In re
Ryan K. (2012) 207 Cal.App.4th 591, 594, fn. 5 [when terminating
jurisdiction, juvenile court may “issue an order ‘determining the
2
Because we cannot provide David any effective relief—that
is, relief that “‘can have a practical, tangible impact on the
parties’ conduct or legal status’” (In re D.P. (2023) 14 Cal.5th 266,
277)—we conclude his appeal is moot. In addition, we invited the
parties to file briefs addressing whether we should exercise our
discretion to consider the merits of this moot appeal under
In re D.P. After consideration of the relevant factors, we decline
to exercise our discretion to consider David’s moot appeal on its
merits and dismiss.
FACTUAL AND PROCEDURAL BACKGROUND
David and Blanca are the parents of Sofia (born 2011),
Rey (born 2012), and Ryan (born 2015). Blanca has an older
daughter, Niveah (born 2007), who is not a subject of this appeal.
In February 2022, the Los Angeles County Department of
Children and Family Services (Department) received a referral
alleging the children were being emotionally abused and
reporting David threatened to take the children and have Blanca
deported. A social worker interviewed the children, who reported
arguments and yelling between the parents and threats by David
toward Blanca. Blanca reported David was demanding money,
threatening to hit her, and saying he would call immigration
custody of, or visitation with, the child,’” which “may be enforced
or modified by the family court” and is “sometimes referred to as
‘family law’ orders or ‘exit’ orders”].) We take judicial notice of
the exit orders in this case and the order modifying the
restraining order under Evidence Code sections 452,
subdivision (d), and 459.
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services to have her deported. Niveah also reported hearing
David hit Blanca. On March 21 the juvenile court signed a
removal order authorizing the Department to detain the children
from David. On March 30 the court issued a temporary
restraining order prohibiting David from contacting Blanca or the
children outside of monitored visits.
On March 24, 2022 the Department filed a petition under
Welfare and Institutions Code2 former section 300,
subdivisions (a) (physical harm), (b)(1) (failure to protect), and
(c) (serious emotional damage), for David’s alleged domestic
violence and Blanca’s alleged failure to protect.3 The court later
2 Statutory references are to the Welfare and Institutions
Code.
3 Former section 300, subdivision (b)(1), provided, in relevant
part, that a child comes within the jurisdiction of the juvenile
court if “[t]he child has suffered, or there is a substantial risk
that the child will suffer, serious physical harm or illness, as a
result of the failure or inability of the child’s parent or guardian
to adequately supervise or protect the child, . . . or by 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.” Effective
January 1, 2023, Senate Bill No. 1085 (2021-2022 Reg. Sess.)
(Stats. 2022, ch. 832, § 1) amended section 300, subdivision (b)(1),
by enumerating the existing bases for dependency jurisdiction in
separate subparagraphs (b)(1)(A) through (D). The legislation
also added section 300, subdivision (b)(2), which now provides, “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 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
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amended the petition to strike the allegations under
subdivision (c).
On May 17, 2022 the juvenile court held a combined
jurisdiction and disposition hearing. The jurisdiction and
disposition report described multiple instances of physical
assaults and verbal abuse of Blanca by David over many years,
verbal arguments between the parents during which David threw
items, threats by David to call immigration authorities on
Blanca, and arguments between the parents during which they
each tried to hit each other. The court sustained the amended
petition and found the children to be persons described by former
section 300, subdivision (b)(1), based upon David’s domestic
violence. As sustained, the section 300 petition stated: “The
children, Niveah [E.], Sofia [R.], Rey [R.] and Ryan [R.]’s mother,
Blanca [E.], and the mother’s male companion, David [R.] father
of the children, Sofia, Rey and Ryan, have a history of engaging
in verbal and physical altercations. On a prior occasion,
[David R.] struck the mother. On prior occasions, [David R.]
threw objects in the children’s home during verbal altercations
with the mother. On prior occasions, [David R.] threatened to call
Immigration and Customs Enforcement (ICE) to have the mother
removed from the United States. In 2019, the mother struck
[David R.] with the mother’s closed fist and pushed the father.
The mother failed to protect the children in that the mother
allowed [David R.] to reside in the children’s home and have
unlimited access to the children. Such violent conduct on the
other conditions of financial difficulty, including, but not limited
to, poverty, the inability to provide or obtain clothing, home or
property repair, or childcare.”
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part of [David R.] and the mother and the mother’s failure to
protect the children endangers the children’s physical health and
safety, creates a detrimental home environment, and places the
children at risk of serious physical harm, damage, danger and
failure to protect.”
The juvenile court removed the children from David and
ordered him to complete a domestic violence class, a parenting
class, and individual counseling. The court also issued a
permanent restraining order requiring David to stay 100 yards
away from the home, workplace, car, or school of Blanca, Niveah,
Sofia, Rey, and Ryan, except for court-ordered visitation.
On June 3, 2022 David filed the present appeal seeking
review of the juvenile court’s jurisdiction findings, disposition
orders, and restraining order.
Subsequently, on May 1, 2023 the juvenile court modified
the restraining order to remove David’s three children (not
including Niveah) from the restraining order. On May 8, the
juvenile court terminated jurisdiction and released the children
to Blanca, with a custody order granting sole legal and physical
custody to Blanca and unmonitored visitation to David. The
custody order expressly incorporated and attached the modified
restraining order, and provided that David could move for joint
legal and physical custody in family court after completing
individual counseling. David did not appeal from those orders.
We invited the parties to submit letter briefs addressing
whether this appeal is moot and, if so, whether we should
exercise our discretion to reach the merits. (See In re D.P., supra,
14 Cal.5th at p. 276.) The Department argued the appeal is moot
and should be dismissed because there is no effective relief the
court can provide to David. David asserted that even though he
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did not appeal the exit orders, his custody rights are still at stake
and discretionary review is appropriate even if the appeal is
moot. We address these arguments in turn.
DISCUSSION
A. David’s Notice of Appeal Sufficiently Identifies the Orders
and Findings From Which He Appeals
The Department asserts David did not properly appeal
from the jurisdiction findings and disposition orders. Specifically,
the Department notes that on the second page of his JV-800
notice of appeal form, David checked the box for “Other
appealable orders relating to dependency” and stated he appealed
from the restraining order. But, he did not check the applicable
boxes to indicate he was appealing from the disposition orders
and jurisdictional findings.
However, “checking the wrong box on a notice of appeal ‘is
not fatal to the appeal.’” (Childhelp, Inc. v. City of Los Angeles
(2023) 91 Cal.App.5th 224, 234, fn. 3; accord, Ellis Law Group,
LLP v. Nevada City Sugar Loaf Properties, LLC (2014)
230 Cal.App.4th 244, 251.) A notice of appeal “must be liberally
construed in favor of its sufficiency” (Cal. Rules of Court, rule
8.852(a)(3)) and “is sufficient if it identifies the particular
judgment or order being appealed” (id., rule 8.100(a)(2)). More
importantly than what boxes he checked, the first page of David’s
notice of appeal expressly states, in section 1, that he appeals
from the following findings and orders of the court: “On May 17,
2022 at the adjudication and disposition hearing the court found
the children persons described under sections 300a,b [sic]. The
court also removed custody from father at the dispositional
7
hearing and issued a permanent restraining order against father.
Appeal from all other orders as well.”
We conclude David’s notice of appeal adequately identifies
that he appeals from the disposition orders, jurisdiction findings,
and restraining order entered on the same day. (See In re
Daniel Z. (1992) 10 Cal.App.4th 1009, 1017 [“Liberal construction
is particularly appropriate here because the jurisdictional finding
and dispositional order were rendered simultaneously on
January 9, 1992—the date specified in the notice of appeal—and
are reflected for each child in a single written order. We shall
therefore construe the notice of appeal as properly specifying the
dispositional order.”]; see also K.J. v. Los Angeles Unified School
Dist. (2020) 8 Cal.5th 875, 882 [notice of appeal shall be
“‘“liberally construed so as to protect the right of appeal if it is
reasonably clear what [the] appellant was trying to appeal from,
and where the respondent could not possibly have been misled or
prejudiced”’”], quoting In re Joshua S. (2007) 41 Cal.4th 261,
272.)
B. The Mootness Doctrine in 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.’”” (In re D.P., supra,
14 Cal.5th at p. 276.) In dependency cases, the reviewing court
decides on a case-by-case basis whether subsequent events
render a case moot and whether the court’s decision would affect
the outcome of a subsequent proceeding. (Ibid.) A dependency
case becomes moot when events “‘“render[ ] it impossible for [a]
8
court, if it should decide the case in favor of plaintiff, to grant
him any effect[ive] relief.”’” (Ibid.; see In re N.S. (2016)
245 Cal.App.4th 53, 60 [“the 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”].) To show
the reviewing court can provide effective relief, the appellant first
“must complain of an ongoing harm. Second, the harm must be
redressable or capable of being rectified by the outcome [the
appellant] seeks.” (In re D.P., at p. 276.)
In In re D.P., supra, 14 Cal.5th 266, the Supreme Court
explained that “relief is effective when it ‘can have a 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.” (Id. at p. 277.) Examples of non-moot
cases include those where 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.) In re D.P. further noted that
“speculative future harm” is insufficient to avoid mootness. (Id.
at p. 278.) But “when a parent has demonstrated a specific legal
or practical consequence that will be averted upon reversal,”
however, “the case is not moot, and merits review is required.”
(Id. at p. 283.)
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“When a parent has not made such a showing, the case is
moot, but the court has discretion to decide the merits
nevertheless.” (In re D.P., supra, 14 Cal.5th at p. 283, see id. at
p. 282 [reviewing court has “‘inherent discretion’” to reach the
merits of an appeal even where the case is moot].) A reviewing
court decides on a case-by-case basis whether to reach the merits
of a moot appeal. (Id. at p. 287.) Generally, “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’” courts may appropriately consider the merits of a
moot appeal. (Id. at p. 282.)
Dependency appeals are uniquely prone to mootness, and
often “[p]arents may appeal an order that is later changed, or
jurisdiction over the child may terminate before an appeal is
finally resolved, as in this case.” (In re D.P., supra, 14 Cal.5th at
p. 285.) Accordingly, In re D.P. identified several additional
factors reviewing courts may consider when deciding whether
discretionary review is warranted. (Id. at pp. 284-286.) First,
whether the challenged jurisdiction finding could impact current
or future dependency proceedings (for example, by influencing a
child protective agency’s decision to file a new dependency
petition or a juvenile court’s determination about whether to
order further reunification services). (Id. at p. 285.) Second,
“whether the jurisdictional finding is based on particularly
pernicious or stigmatizing conduct.” (Id. at pp. 285-286.) 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 also consider “why the appeal became moot”:
“[p]rinciples of fairness” may favor discretionary review of cases
10
rendered moot “by the prompt compliance or otherwise laudable
behavior of the parent challenging the jurisdictional finding on
appeal.” (Ibid.)
In deciding whether to exercise their discretion, reviewing
courts “should be guided by the overarching goals of the
dependency system: ‘to provide maximum safety and protection
for children’ with a ‘focus’ on ‘the preservation of the family as
well as the safety, protection, and physical and emotional well-
being of the child.’” (In re D.P., supra, 14 Cal.5th at p. 286; see
§ 300.2, subd. (a).)
C. David’s Appeal Is Moot
As noted above, in this appeal David challenges the
juvenile court’s May 17, 2022 jurisdiction findings and disposition
orders, including its order restraining David from contact with
Blanca and the children except for court-ordered visitation.
David’s appeal does not challenge the restraining order as to his
contact with Blanca, but asks that it be modified to omit Sofia,
Rey, and Ryan from the order and by removing the restriction on
communication between him and Blanca through third parties.
His appeal from those orders was rendered moot by the
subsequent May 2023 orders modifying the restraining order to
exclude his children and terminating jurisdiction and awarding
Blanca sole custody of the children with unmonitored visitation
for David.
David did not appeal from the order modifying the
restraining order or from the exit orders (which attached and
incorporated the modified restraining order), which are now final.
As this court explained in In re Rashad D. (2021) 63 Cal.App.5th
156, “termination of dependency jurisdiction does not necessarily
11
moot an appeal from a jurisdiction finding that directly results in
an adverse juvenile custody order. But in most cases . . . for this
court to be able to provide effective relief, the parent must appeal
not only from the jurisdiction finding and disposition order but
also from the orders terminating jurisdiction and modifying the
parent’s prior custody status. Without the second appeal, we
cannot correct the continuing adverse consequences of the
allegedly erroneous jurisdiction finding.” (Id. at p. 159.) By not
appealing the May 2023 custody orders, David “forfeited any
challenge to those rulings, including the juvenile court’s
jurisdiction to issue them.” (Id. at p. 167; accord, In re Gael C.
(2023) 96 Cal.App.5th 220, 225.) An exit order is a final
judgment and is not subject to collateral attack through an
appeal from a previous disposition order. (See § 302, subd. (d)
[“Any custody or visitation order issued by the juvenile court at
the time the juvenile court terminates its jurisdiction . . . shall be
a final judgment and shall remain in effect after that jurisdiction
is terminated.”]; see also Heidi S. v. David H. (2016)
1 Cal.App.5th 1150, 1165 [where the juvenile court terminates its
jurisdiction and issues an exit order, “the exit order ‘shall be a
final judgment and shall remain in effect after [the juvenile
court’s] jurisdiction is terminated’”].)
Because the exit orders are now final, we do not have
jurisdiction to review and change them, and “the juvenile court
has no jurisdiction to conduct further hearings in the now-closed
case.” (In re Rashad D., supra, 63 Cal.App.5th at p. 164; see In re
Michelle M. (1992) 8 Cal.App.4th 326, 330 [“where jurisdiction
has been terminated and is final . . . jurisdiction cannot be
conferred upon the appellate court”]; see also § 304 [juvenile
court has exclusive jurisdiction to hear proceedings regarding
12
custody “until the time that the petition is dismissed or
dependency is terminated”]; Cal. Rules of Court, rule 5.620(a)
[same].) Accordingly, even if we were to reverse the May 2022
jurisdiction and disposition orders, that would have no effect on
the May 2023 exit orders.
In short, we cannot provide David any effective relief—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.) David’s appeal of the May 2022 jurisdiction findings,
disposition orders, and restraining order is thus moot. (See id. at
p. 276 [a case is moot when events render it impossible for the
court to grant appellant meaningful relief]; accord, In re Gael C.,
supra, 96 Cal.App.5th at p. 224.)
D. Discretionary Review of David’s Moot Appeal Is Not
Warranted
As noted above, we invited the parties to file briefs
addressing whether David’s appeal was moot, and if so, whether
we should exercise our discretion to review these orders on the
merits under In re D.P., supra, 14 Cal.5th 266. (See id. at
pp. 282-287 [detailing “nonexhaustive” factors court may consider
in deciding whether to exercise discretionary review of a moot
dependency appeal].) The Department contends the appeal
should be dismissed as moot, and David requested merits review.
David argues “his custody rights over his children are still at
stake, and those custody rights were adversely affected by the
jurisdictional findings he is appealing” and can be “modified in
the family court” if he prevails. He cites In re John W. (1996)
41 Cal.App.4th 961, 969, where the appellate court reviewed an
appeal of an expired, “nonmodifiable” custody exit order because
13
there was “an ongoing controversy concerning custody and
visitation that is very much alive.” The court further noted the
case involved open questions of public interest regarding the
propriety of nonmodifiable exit orders and the proper court to
which such orders should be remanded (i.e., the family law court
or juvenile dependency court). David further contends that even
if his appeal is moot, we should decide on the merits to prevent
insulating erroneous jurisdictional findings from review.
After consideration of the relevant factors, we decline to
exercise our discretion to consider David’s moot appeal. Unlike
his cited authority, David’s appeal does not present
circumstances that generally warrant discretionary review of a
moot case, such as an issue of broad public interest that is likely
to recur, the likelihood of a recurrence of the controversy between
the parties, or a material question that remains for the court’s
determination. (See In re D.P., supra, 14 Cal.5th at p. 282.) Nor
is this a case rendered moot “by the prompt compliance or
otherwise laudable behavior of the parent challenging the
jurisdictional finding on appeal.” (Id. at p. 286.)
The case David cites for the importance of being able to
modify his custody orders in family court, In re John W., supra,41 Cal.App.4th 961, does not stand for the proposition that
discretionary review of a moot case is proper any time such
custody rights are at stake. Indeed, it predates both In re D.P.
and the enactment of section 302, subdivision (d). (See In re
Marriage of David & Martha M. (2006) 140 Cal.App.4th 96,
102-103 [to the extent In re John W. established section 362.4
exit orders cannot be equated with permanent family law custody
orders, “[t]his may have been true prior to the inception of
section 302, subdivision (d) in 2000, but pursuant to section 302,
14
subdivision (d) a section 362.4 juvenile court exit order shall be a
final judgment and shall remain in effect after the jurisdiction of
the juvenile court is terminated unless modified in compliance
with the change of circumstances/best interest rule”].) That
David’s custody rights are still at stake with regard to his family
law case—as finalized in a custody exit order he elected not to
appeal—does not compel discretionary review of his appeal.
Finally, the jurisdiction findings based on David’s domestic
violence are not sufficiently “egregious” or “stigmatizing” conduct
warranting exercise of our discretion to reach the merits. While
dependency jurisdiction by definition necessarily involves conduct
harmful to children, our assessment of severity or perniciousness
is a relative analysis. We do not find the jurisdiction findings
against David to be based on particularly stigmatizing or
pernicious conduct such that our concerns over not insulating
erroneous and stigmatizing jurisdiction findings from review
would prompt us to review the merits in light of all other factors.
Therefore, on balance the factors the Supreme Court identified in
In re D.P. do not warrant discretionary review of David’s moot
appeal.
We note that David is not without a remedy. Indeed, under
section 302, subdivision (d), he may seek modification of the exit
orders if he can “demonstrate ‘there has been a significant change
of circumstances since the juvenile court issued the order and
modification of the order is in the best interests of the child.’”
(In re Rashad D., supra, 63 Cal.App.5th at p. 165, fn. 7.)
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DISPOSITION
The appeal is dismissed as moot.
MARTINEZ, J.
We concur:
SEGAL, Acting P. J.
FEUER, J.
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