In re Luke S. CA2/7

Filed 6/1/23 In re Luke S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 LUKE S., a Person Coming B311414
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No.
20CCJP00148A)
LOS ANGELES COUNTY
SECOND ORDER
DEPARTMENT OF CHILDREN
MODIFYING
AND FAMILY SERVICES,
OPINION
(No change in the
Plaintiff and Respondent,
appellate judgment)
v.
MAGDALENA S.,
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed herein on May 30, 2023
is modified as follows:
On page 1, the Los Angeles Superior Court case number,
which appears as 21CCJP00148A, is changed to
20CCJP00148A.
The modification order filed on May 31, 2023 is vacated.
This order does not change the appellate judgment.
____________________________________________________________
PERLUSS, P. J. SEGAL, J. FEUER, J.
2
Filed 5/31/23 In re Luke S. CA2/7 (first modification)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 LUKE S., a Person Coming B311414
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No.
20CCJP00148A)
LOS ANGELES COUNTY
ORDER MODIFYING
DEPARTMENT OF CHILDREN
OPINION
AND FAMILY SERVICES,
(No change in the
Plaintiff and Respondent, appellate judgment)
v.
MAGDALENA S.,
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed herein on May 30, 2023
is modified as follows:
On page 1, the Los Angeles Superior Court case number,
which appears as 21CCJP00148A, is changed to
20CCJP001481A.
This order does not change the appellate judgment.
____________________________________________________________
PERLUSS, P. J. SEGAL, J. FEUER, J.
2
Filed 5/30/23 In re Luke S. CA2/7 (unmodified opinion)
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 LUKE S., a Person Coming B311414
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No.
21CCJP00148A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MAGDALENA S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Stephen C. Marpet, Juvenile Court Referee.
Dismissed as moot.
Roni Keller, under appointment by the Court of Appeal for
Defendant and Appellant.
Rodrigo A. Castro-Silva and Dawyn R. Harrison, County
Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son,
Deputy County Counsel, for Plaintiff and Respondent.
_________________________
Magdalena S., the mother of then 14-year-old Luke S.,
appealed the juvenile court’s jurisdiction findings and disposition
order declaring Luke a dependent child of the court and releasing
him to Magdalena under the supervision of the Los Angeles
County Department of Children and Family Services. While
Magdalena’s appeal was pending, the juvenile court terminated
its jurisdiction and issued a juvenile court custody order granting
Magdalena sole legal and physical custody of Luke. At the
request of the Department, we dismissed the appeal as moot.
The Supreme Court granted Magdalena’s petition for
review and subsequently transferred the matter to us with
directions to vacate our prior order and reconsider the cause in
light of In re D.P. (2023) 14 Cal.5th 266. (In re Luke S. (Apr. 19,
2023, S273262.) We have done so. Because we can provide no
effective relief to Magdalena—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. And after considering
the factors identified in In re D.P., we decline to exercise our
discretion to consider a moot appeal.
FACTUAL AND PROCEDURAL BACKGROUND
The juvenile court on August 21, 2020 sustained an
amended petition pursuant to Welfare and Institutions Code
section 300, subdivisions (a) (serious physical harm inflicted
nonaccidentally) and (b)(1) (failure to protect), alleging Luke was
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at substantial risk of serious physical harm based on
Magdalena’s physical abuse of her wife’s two children and
emotional abuse of one of those children.1 At the disposition
hearing on March 16, 2021 the court declared Luke a dependent
child of the court, released him to Magdalena under the
supervision of the Department and ordered family maintenance
services for Magdalena, including parenting classes and conjoint
counseling.
Magdalena appealed the jurisdiction findings and
disposition order. In her opening brief filed October 8, 2021
Magdalena argued the juvenile court’s jurisdiction findings were
not supported by substantial evidence and its disposition order
constituted an abuse of discretion. Explaining that Earle S., who
was found to be Luke’s presumed father, had reported he had
Choctaw ancestry and was a registered member of the tribe,
Magdalena also argued the Department’s notices to the Choctaw
tribes had numerous errors and omissions and, accordingly, the
juvenile court had erred by prematurely finding there was no
reason to know Luke was an Indian child within the meaning of
the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.
§ 1901 et seq.).
At a review hearing held the same day as Magdalena filed
her opening appellate brief, the juvenile court terminated its
jurisdiction and issued a juvenile court custody order granting
Magdalena sole legal and physical custody of Luke with
monitored visitation for Earle. Magdalena did not appeal the
October 8, 2021 orders.
1 The original dependency petition was filed in early January
2020.
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On December 20, 2021 the Department moved to dismiss
Magdalena’s appeal as moot in light of the orders terminating
dependency jurisdiction and awarding Magdalena sole legal and
physical custody of Luke. The Department argued, under the
circumstances, this court could not provide Magdalena any
effective relief.
On December 27, 2021 Magdalena filed an opposition to the
motion to dismiss, contending the stigma and potential collateral
consequences of adverse jurisdictional findings, which she argued
“forever falsely besmirch a parent’s reputation,” created a
justiciable controversy notwithstanding the termination of
dependency jurisdiction. Her opposition did not address the fact
the disposition orders were no longer in effect or that, because
Luke had been returned to Magdalena and dependency
jurisdiction terminated, any error in a premature ICWA finding
was of no significance.
Neither Magdalena nor the Department filed a
supplemental brief, as permitted by California Rules of Court,
rule 8.200(b), following the Supreme Court’s transfer of the case
to us for reconsideration in light of In re D.P., supra, 14 Cal.5th
266.
DISCUSSION
1. In re D.P.: Moot Dependency Appeals and Our
Discretion To Decide Them
The Supreme Court in In re D.P., supra, 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
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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
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.)2
2 Specifically addressing the appellant father’s argument
that the challenged jurisdiction finding of neglect could result in
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Despite its reaffirmation of the applicability of the
mootness doctrine to dependency appeals, the Supreme Court
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
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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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 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.)
2. Discretionary Review of This Moot Appeal Is Not
Warranted
As discussed, when opposing the Department’s motion to
dismiss the appeal, Magdalena focused primarily on the stigma
she asserted accompanied the juvenile court’s jurisdiction
findings—a factor the Supreme Court held was insufficient to
sustain an appeal. (In re D.P., supra, 14 Cal.5th at p. 277.)
Magdalena also generally described several potentially negative
consequences that might flow from adverse jurisdiction findings,
the type of speculative future harm the Court also held was
insufficient to avoid mootness. (Id. at p. 278.)
Exercise of our discretionary authority to consider the
merits of Magdalena’s moot appeal is not warranted. Although
the misconduct in this case involved the nonaccidental infliction
of physical harm (Welf. & Inst. Code, § 300, subd. (a)), not only a
failure to protect (§ 300, subd. (b)), the findings involving
Magdalena were not egregious; and Magdalena will be able to
explain in any future dependency or family law proceedings that
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the juvenile court released Luke to her care at the disposition
hearing, reflecting the judgment that Magdalena did not pose a
continuing risk to her child.
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”].) Nearly two years
elapsed between the filing of the original petition and the court’s
order terminating jurisdiction. This was not a case that became
moot because of the parent’s prompt compliance with a case plan.
Nor does Magdalena’s fact-specific appeal 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].)
DISPOSITION
The appeal is dismissed as moot.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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