In re E.M. CA2/5

Filed 3/6/23 In re E.M. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
In re E.M., Jr. et al., Persons Coming
Under the Juvenile Court Law. B316751
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No.
AND FAMILY SERVICES, 21CCJP02984A-B)
Plaintiff and Respondent,
v.
E.M.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Hernan D. Vera, Judge. Dismissed.
Donna P. Chirco, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Jessica S. Mitchell, Senior Deputy
County Counsel, for Plaintiff and Respondent.
E.M. (Father) appeals from juvenile court orders assuming
dependency jurisdiction over his sons, E.M., Jr. (age 9) and J.M.
(age 17), and removing both children from his custody. Father’s
opening brief makes clear he is only challenging the jurisdiction
finding and removal order pertaining to J.M., his older adopted
son, and not E.M., Jr. Father also asserts the juvenile court did
not oversee an adequate inquiry under the Indian Child Welfare
Act (ICWA) and related California law.
The parties are familiar with the facts, and our opinion
does not meet the criteria for publication. (Cal. Rules of Court,
rule 8.1105(c).) We accordingly resolve the cause before us,
consistent with constitutional requirements, via a written opinion
with reasons stated. (Cal. Const., art. VI, § 14; Lewis v. Superior
Court (1999) 19 Cal.4th 1232, 1261-1264 [three-paragraph
discussion of issue on appeal satisfies constitutional requirement
because “an opinion is not a brief in reply to counsel’s
arguments”; “[i]n order to state the reasons, grounds, or
principles upon which a decision is based, [an appellate court]
need not discuss every case or fact raised by counsel in support of
the parties’ positions”].)
* * *
1. “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
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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.
[Citation.] [¶] This rule applies in the dependency context. (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’].) A reviewing court must ‘“decide on a case-by-
case basis whether subsequent events in a juvenile dependency
matter make a case moot and whether [its] decision would affect
the outcome in a subsequent proceeding.”’ [Citation.]” (In re D.P.
(2023) 14 Cal.5th 266, 276.) Even where a dependency appeal is
moot, courts “may exercise their ‘inherent discretion’ to reach the
merits of the dispute.” (Id. at 282, 285-286 [enumerating
considerations to guide decisions on whether to exercise
discretion to reach the merits].)
2. Father’s challenge to the order removing J.M. from
his custody is moot. For well over a year—and before the
institution of dependency proceedings in this case triggered by
Father’s domestic violence with his girlfriend and his alcohol
abuse—J.M. chose not to live with Father and instead resided
first with a friend and then with a maternal uncle. J.M. told
social workers he refused to live with Father because he was
emotionally and physically abusive toward J.M. and his
(biological) mother. Father acquiesced in J.M.’s decision to live
elsewhere, and there is no evidence Father ever attempted to
override J.M.’s decision to distance himself from Father. Because
the juvenile court’s removal order merely maintained the long-
existing status quo between Father and J.M., reversal of that
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order would provide no effective relief. Furthermore, as of the
date of this opinion’s filing, J.M. is less than two months from his
18th birthday—34 days to be exact. Even if reversal of the
removal order could have some theoretical practical effect
notwithstanding J.M.’s years-long efforts to avoid living with
Father, that theoretical effect would in all likelihood be
exceedingly short-lived—probably mere days because this opinion
is not final for at least 30 days after filing (Cal. Rules of Court,
rules 8.264(b), 8.272(b), 8.470)—in light of J.M.’s impending 18th
birthday. Under these circumstances, we see no good reason to
exercise our discretion to decide the moot issue of the removal
order.
3. Father’s challenge to the jurisdiction finding against
him with respect to J.M. is also moot. A reversal of the
jurisdiction finding would provide no effective relief for three
reasons: (1) there is an unchallenged jurisdiction finding against
J.M.’s mother, which means jurisdiction over J.M. will continue
even with reversal of the finding against Father; (2) there is an
unchallenged jurisdiction finding against Father as to E.M., Jr.
that will remain in place and is based on the same factual
predicate as the jurisdiction finding for J.M.; and (3) as with the
removal order, any theoretical operative effect of a reversal of the
jurisdiction finding is negligible in light of J.M.’s impending 18th
birthday. Under these circumstances, we also see no good reason
to exercise our discretion to decide the moot jurisdiction issue.
4. Father also contends the juvenile court’s ICWA
finding, made at the time of its jurisdiction finding and
disposition order, is infirm. The Los Angeles County Department
of Children and Family Services (Department) has asked us to
judicially notice juvenile court minute orders reflecting additional
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ICWA-related inquiry undertaken by the juvenile court and a
direction from the court to the Department to inquire of extended
family members and report on the results of those interviews.
We grant the request for judicial notice and hold the ICWA claim
raised on appeal is accordingly moot. (In re Baby Girl M. (2022)
83 Cal.App.5th 635.) Insofar as we have discretion to reach this
moot issue as well, we decline to exercise it.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
I concur:
RUBIN, P. J.
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MOOR, J., Concurring and Dissenting.
I concur only in part 4 of the majority opinion, on the issue
of Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.)
compliance.
I disagree with the majority’s conclusion that father’s
appeal of the jurisdictional findings and dispositional orders as to
J.M. is moot and write separately to explain the reasons for
addressing the appeal on the merits.
While this case was pending before us, the California
Supreme Court provided updated guidance for determining
whether an appeal from a juvenile court’s jurisdiction findings is
moot. (In re D.P. (2023) 14 Cal.5th 266.) A case is moot when the
reviewing court cannot provide effective relief, defined by the
Supreme Court as follows: “relief is effective when ‘it can have a
practical, tangible impact on the parties’ conduct or legal
status.’ ” (Id. at p. 277.) The Supreme Court further explained
that “a case is not moot where a jurisdictional finding affects
parental custody rights [citation], curtails a parent’s contact with
his or her child [citation], or ‘has resulted in [dispositional] orders
which continue to adversely affect’ a parent [citation].” (Id. at
pp. 277–278.) Where “reversal of the jurisdictional finding calls
into question the validity of orders based on the finding, review of
the jurisdictional finding can grant the parent effective relief.”
(Id. at p. 277.)
Father challenges the juvenile court’s jurisdictional
findings that J.M. was at substantial risk of serious physical
harm under Welfare and Institutions Code section 300,
subdivisions (b) and (j). If we agreed with father’s argument that
there is insufficient evidence to support the jurisdictional
findings, reversal of those findings would also require reversal of
the order removing J.M. from father’s custody. (See, e.g., In re
Isabella F. (2014) 226 Cal.App.4th 128, 141 [reversing
dispositional order based on reversal of jurisdictional findings].)
This case is not moot, because reversing the removal order would
remedy an ongoing harm by restoring father’s parental custody
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rights. (In re D.P., supra, 14 Cal.5th at p. 276.)
Because the parties have not raised J.M.’s age as an issue
precluding a decision on the merits, and because I believe a
bright-line approach is preferable, I would not find father’s
appeal to be moot based on J.M.’s age. At the time of our
decision, J.M. is still a minor. Determining mootness based on
how close a minor is to turning 18 injects the potential for
uncertainty and arbitrariness into dependency cases.
Although J.M. has expressed in the past that he wants to
avoid living with father, we do not know what has happened in
the relationship between father and J.M. in the 16 months since
the filing of the appeal. The limited, updated information we do
have, from the minute orders judicially noticed, is that by
September 2022, father was in compliance with his case plan for
both children, and J.M.’s younger brother had returned to
father’s home. As the Supreme Court has cautioned (even in the
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The other purported grounds for mootness are
unconvincing to me, because they do not form the basis for the
removal order affecting father’s custody rights. The unchallenged
jurisdiction finding against J.M.’s mother means that the court
will retain jurisdiction over J.M., but it does not preclude reversal
of the order removing J.M. from father’s custody. The same is
true as to the unchallenged jurisdiction finding against father as
to J.M.’s younger brother.
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context of a moot appeal): “Given the short timeframes
associated with dependency cases and the potentially significant,
if sometimes uncertain, consequences that may flow from
jurisdictional findings, consideration of the overarching purposes
of the dependency system may counsel in favor of reviewing a
parent’s appeal despite its mootness.” (In re D.P., supra,
14 Cal.5th at pp. 286–287.)
I would reach the merits of father’s challenge to the
jurisdictional findings and dispositional orders.
MOOR, J.
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