In re D.P., a Person Coming
S267429
IN THE SUPREME COURT OF CALIFORNIA
January 19, 2023
Second Appellate District, Division Five B301135; Los Angeles County Superior Court 19CCJP00973B; Justice Liu authored the opinion of the Court, in which Chief Justice Guerrero and Justices Corrigan, Kruger, Groban, Jenkins, and Cantil-Sakauye* concurred. * Retired Chief Justice of California, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Second Appellate District, Division Five
B301135
Los Angeles County Superior Court
19CCJP00973B
Justice Liu authored the opinion of the Court, in which Chief Justice Guerrero and Justices Corrigan, Kruger, Groban, Jenkins, and Cantil-Sakauye* concurred.
Opinion of the Court by Liu, J.
In 2019, T.P. (Father) and Y.G. (Mother) brought their infant son, D.P., to the hospital because they were concerned about excessive crying. A chest X-ray revealed that D.P. had a single healing rib fracture that the parents could not explain. In response, the Los Angeles County Department of Children and Family Services (the Department) filed a dependency petition claiming that D.P. and his five-year-old sister, B.P., were at risk of neglect. After reviewing the evidence, the juvenile court dismissed all but one of the counts brought by the Department. The court found that it had jurisdiction over D.P. under
D.P.‘s parents challenged this jurisdictional finding on appeal. While the appeal was pending, the juvenile court terminated its jurisdiction, finding that the parents had complied with their case plan and D.P. was no longer at risk. In response, the Court of Appeal dismissed the parents’ case, reasoning that because the juvenile court‘s jurisdiction had terminated, the case was moot. We granted Father‘s petition for review.
I.
In 2019, Father and Mother brought two-month-old D.P. to the hospital because he had been crying more than usual and seemed to have difficulty breathing. A chest X-ray revealed that D.P. had pneumonia as well as a single healing rib fracture that the parents, surprised by the latter finding, could not explain. A nurse practitioner who treated D.P. and performed a skeletal survey found no evidence of any other trauma or injuries to his body. The Department received a report alleging that D.P. was a victim of physical abuse and stating that his five-year-old sister B.P. might also be at risk. Following treatment for the rib fracture and for unrelated pneumonia and flu, D.P. was released to his parents. At that time, he was gaining weight and seemed happy.
Father and Mother are immigrants from Vietnam and China, respectively. Their household includes D.P. and B.P., as well as the children‘s maternal grandparents. The family has no prior child welfare history or criminal history. A social worker who interviewed B.P. found that she appeared healthy and well groomed, and B.P. stated that she felt happy and safe at home. The parents were cooperative with social workers and participated in various pre-disposition services including parenting classes and individual counseling. Nonetheless, because the timing of D.P.‘s rib fracture meant that it must have occurred sometime after his birth while he was in the care of his parents, and because his parents could not offer a satisfactory explanation for the injury, the Department filed a petition alleging that D.P. was subject to “deliberate, unreasonable, and neglectful acts” at the hands of his parents, which placed him and his sister “at risk of serious physical harm, damage, danger, and physical abuse.” The Department claimed the children were at risk of neglect and sought to have them removed from their parents’ care.
In the juvenile court, the Department presented testimony from Dr. Karen Imagawa, an expert in forensics and suspected child abuse. Dr. Imagawa
At the jurisdictional hearing, the juvenile court dismissed the portions of the petition relating to D.P.‘s sister because they were not supported by sufficient evidence. With respect to D.P., the juvenile court sustained a modified version of the former section 300, subdivision (b)(1) (section 300(b)(1)) count, which had alleged that “deliberate, unreasonable, and neglectful acts on the part of [D.P.‘s] mother and father endanger the child‘s physical health, safety and well-being, create a detrimental home environment and place the child . at risk of serious physical harm, damage, danger and physical abuse.”
By its terms, current
In light of the expert testimony and the force required to cause D.P.‘s injury, the juvenile court concluded the injury was of a sort that would generally not be sustained barring some neglect or harm to the child, and it thus found a prima facie case under
The court ordered D.P. to remain released to the parents under the Department‘s informal supervision under
D.P.‘s parents promptly appealed the juvenile court‘s jurisdictional ruling. Mother challenged the basis for the juvenile court‘s section 300(b)(1) finding, claiming that the elements of failure to protect and causation had not been established. Father argued that the juvenile court had erred in applying the
The Court of Appeal agreed the case is moot, and it also declined to exercise discretionary review on the ground that the parents “have failed to
II.
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.’ ” (Consolidated etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863 (Consolidated).) 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.” (Ibid.) 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. (See id. at p. 865.)
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.’ ” (In re Anna S. (2010) 180 Cal.App.4th 1489, 1498.) We review de novo the Court of Appeal‘s determination that this case is moot. (Robinson v. U-Haul Co. of California (2016) 4 Cal.App.5th 304, 319.)
The Courts of Appeal have held that when a juvenile court‘s finding forms the basis for an order that continues to impact a parent‘s rights — for instance, by restricting visitation or custody — that jurisdictional finding remains subject to challenge, even if the juvenile court has terminated its jurisdiction. (See, e.g., In re Joshua C. (1994) 24 Cal.App.4th 1544, 1548 [father could challenge jurisdictional finding after jurisdiction terminated because finding was the basis of order restricting his visitation and custody rights]; In re J.K. (2009) 174 Cal.App.4th 1426, 1431-1432 [father could challenge jurisdictional finding after jurisdiction terminated because finding was the basis of order stripping father of custody and imposing a stay-away order that remained in effect]; In re A.R. (2009) 170 Cal.App.4th 733, 740 [termination of jurisdiction
Where, as here, the juvenile court terminates its jurisdiction without issuing any order that continues to impact the parents, the question of whether an appeal can grant the parents effective relief becomes more difficult. In such cases, the Courts of Appeal have applied different standards regarding the showing a parent must make in order to maintain a challenge to a juvenile court‘s jurisdictional finding after jurisdiction has terminated.
Some decisions hold that a parent must identify a “legal [or] practical consequence” arising from a dependency court‘s jurisdictional findings to avoid mootness. (In re I.A. (2011) 201 Cal.App.4th 1484, 1493; see In re N.S., supra, 245 Cal.App.4th at p. 61 [mother‘s challenge to jurisdictional finding was moot because the finding was not the basis of any adverse orders against her].) By contrast, at least one decision has held that the possibility that a jurisdictional finding will have negative consequences for the parent — for instance, by impacting future dependency proceedings — is enough to avoid mootness. (In re Daisy H. (2011) 192 Cal.App.4th 713, 716 [termination of juvenile court‘s jurisdiction did not moot appeal because the finding that father placed children at risk of physical and emotional harm could have negative consequences for father in future family law or dependency proceedings].)
As noted, a case is not moot where a court can provide the plaintiff with “effect[ive] relief.” (Consolidated, supra, 27 Cal.2d at p. 863.) In this context, relief is effective when it “can have a practical, tangible impact on the parties’ conduct or legal status.” (In re I.A., supra, 201 Cal.App.4th at p. 1490.) 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. (Cf. Humphries v. County of Los Angeles (9th Cir. 2009) 554 F.3d 1170, 1185, as amended (Jan. 30, 2009), revd. and remanded sub nom. on other grounds by Los Angeles County v. Humphries (2010) 562 U.S. 29 [for purposes of the due process clause, a protected liberty interest is implicated when the “stigma from governmental action” is coupled with the “alteration or extinguishment of ‘a right or status previously recognized by state law’ “].) For example, a case is not moot
We disapprove In re Daisy H., supra, 192 Cal.App.4th 713, to the extent it held, contrary to today‘s opinion, that speculative future harm is sufficient to avoid mootness.
In the Court of Appeal, Father sought not only to have jurisdiction terminated but also to have the juvenile court‘s jurisdictional finding reversed as unsupported by the evidence. Although jurisdiction has been terminated, Father contends that the appeal is not moot because the jurisdictional finding is stigmatizing and has resulted or will result in his inclusion in California‘s Child Abuse Central Index (CACI) (
Specifically, Father contends that the juvenile court‘s jurisdictional finding could estop him from challenging his inclusion in the CACI. California‘s Child Abuse and Neglect Reporting Act (CANRA;
Inclusion in the CACI carries several consequences for parents. A CACI check is required for “any prospective foster parent, or adoptive parent, or any person 18 years of age or older residing in their household.” (
First, Father does not assert that he has actually been reported for inclusion in the CACI. He notes that the record is silent on this point and argues that where the record is silent, a Court of Appeal will ordinarily presume an official duty has been regularly performed. (See
Father next makes two related arguments that his potential inclusion in CACI is sufficient to avoid mootness. He argues that he will be reported to the CACI in the near future because the juvenile court‘s findings require the Department to forward the report for inclusion in the CACI. And he asserts that the allegations against him could subsequently be forwarded for inclusion in the CACI, at which point the juvenile court‘s finding against him would estop him from challenging his inclusion in the CACI. (See
These possibilities are too speculative for purposes of avoiding mootness. The record reveals that in the course of investigating the report against Father, the Department made two allegations. The first is the original report of physical abuse or ” ‘unlawful corporal punishment or injury’ ” as defined in
Further, we note that CANRA distinguishes between cases of “general” and “severe” neglect. “Severe neglect” is defined as “the negligent failure... to protect the child from severe malnutrition or medically diagnosed nonorganic failure to thrive,” or “willfully caus[ing] or permit[ting] the person or health of the child to be placed in a situation such that their person or health is endangered.” (
Moreover, although “statements by counsel [at oral argument] are not evidence and do not amount to an admission or stipulation of fact” (Zolly v. City of Oakland (2022) 13 Cal.5th 780, 796), we note that when asked at oral argument whether the Department intended to report Father for inclusion in the CACI, counsel for the Department said, “We don‘t want to report these parents. We did not report these parents. And we‘re not going to unless this court orders us to.” The fact that the statute does not require allegations of conduct short of “severe neglect” to be forwarded to the CACI, together with the Department‘s policy not to forward such allegations and the Department‘s representations to this court that it will not do so, renders Father‘s claim too speculative to avoid mootness.
In sum, Father has not shown that he was included in the CACI or that he will be reported in the future based on the allegations at issue here. And even if the Department attempted to report him, Father has not shown that the
III.
Even when a case is moot, courts may exercise their “inherent discretion” to reach the merits of the dispute. (Konig v. Fair Employment & Housing Com. (2002) 28 Cal.4th 743, 745, fn. 3.) As a rule, courts will generally exercise their discretion to review a moot case 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.” (Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479-80; see Conservatorship of Wendland (2001) 26 Cal.4th 519, 524, fn. 1 [exercising discretion to decide an otherwise moot case concerning “important issues that are capable of repetition yet... evad[ing] review“].)
In the dependency context, the Courts of Appeal have reached differing conclusions on when discretionary review of moot cases may be warranted outside the circumstances noted above. Some have taken a broad view of their discretion to reach the merits of a moot appeal. (See, e.g., In re Nathan E. (2021) 61 Cal.App.5th 114, 121 [“Although mother‘s argument appears to assume that there will be future dependency proceedings and offers no other specific harm that sustained jurisdictional and dispositional findings may bring her, we nevertheless exercise our discretion to consider her appeal on the merits“]; In re Madison S. (2017) 15 Cal.App.5th 308, 329 [“a reviewing court [has] the discretion to consider the adequacy of additional jurisdictional grounds if it so desires“]; In re Anthony G. (2011) 194 Cal.App.4th 1060, 1065 [“We are not persuaded that we should refrain from addressing the merits of [parent‘s] appeal” of a terminated jurisdictional finding]; In re C.C. (2009) 172 Cal.App.4th 1481, 1489 [court found parent‘s claim that a jurisdictional order would create “the possibility of prejudice in subsequent family law proceedings” as “highly speculative,” but nonetheless chose to proceed to the merits “in an abundance of caution“].)
Other courts have cited specific factors when considering whether to reach the merits of a moot case. In In re Drake M., the court found
Other courts have declined to exercise their discretion to reach the merits of a moot case where the parent has not identified “specific legal or practical consequence[s] from [the juvenile court‘s jurisdictional] finding, either within or outside the dependency proceedings.” (In re I.A., supra, 201 Cal.App.4th at p. 1493; see In re David B. (2017) 12 Cal.App.5th 633, 654 [“decid[ing] an otherwise moot appeal . . . is appropriate only if a ruling on the merits will affect future proceedings between the parties or will have some precedential consequence in future litigation generally“].)
The Court of Appeal here concluded that discretionary review is only appropriate when the parent has “demonstrate[d] specific legal or practical negative consequences that will result from the jurisdictional findings they seek to reverse.” This was error. Whether or not a parent has demonstrated a specific legal or practical consequence that would be avoided upon reversal of the jurisdictional findings is what determines whether the case is moot or not moot. It is not what determines whether a court has discretion to decide the merits of a moot case. To be clear, when a parent has demonstrated a specific legal or practical consequence that will be averted upon reversal, the case is not moot, and merits review is required. When a parent has not made such a showing, the case is moot, but the court has discretion to decide the merits nevertheless.
We note that the availability of such discretion is particularly important in the dependency context, as several features common to dependency proceedings tend to render parents’ appeals moot. For example, the principle that “[d]ependency jurisdiction attaches to a child, not to his or her parent” (In re D.M., supra, 242 Cal.App.4th at p. 638), means that ” ‘[a]s long as there is one unassailable jurisdictional finding, it is immaterial that another might be inappropriate’ ” (In re D.P., supra, 225 Cal.App.4th at p. 902). Thus, where jurisdictional findings have been made as to both parents but only one parent brings a challenge, the appeal may be rendered moot. (See, e.g., In re D.M., at pp. 638-639.) The same is true
Further, even where all findings against both parents are challenged, the speed with which dependency cases are resolved will often render appeals moot. A key feature of juvenile court is expeditious resolution of pending cases. (See In re T.G. (2015) 242 Cal.App.4th 976, 986 [it is the ” ‘intent of the Legislature . . . that the dependency process proceed with deliberate speed and without undue delay’ “].) The juvenile court system is designed to “not disrupt the family unnecessarily or intrude inappropriately into family life . . . .” (
Also, unlike other court proceedings in which “the contested issues normally involve historical facts (what precisely occurred, and where and when), . . . in a dependency proceeding the issues normally involve evaluations of the parents’ present willingness and ability to provide appropriate care for the child and the existence and suitability of alternative placements.” (In re James F. (2008) 42 Cal.4th 901, 915.) The juvenile court‘s analysis in this regard may consider myriad factors, including a parent‘s new job, completion of required coursework, changes in housing status, addiction treatment, or even the status of the parents’ relationship. To account for these potential developments, juvenile courts conduct ” ‘recurrent reviews of the status of parent and child.’ ” (In re Ryan K. (2012) 207 Cal.App.4th 591, 597.) Appellate review, by contrast, proceeds more slowly. Whereas juvenile courts must continuously update their information and may alter orders in response to changing facts, an appeal from a juvenile court order may often take up to 18 months — “a considerable time in the life of a young child.” (In re Tiffany Y. (1990) 223 Cal.App.3d 298, 304.) In this span, a dependency case may have “moved from possible reunification to possible termination” of parental rights (ibid.), and the statutory scheme permits a juvenile court to adjust its determinations while an appeal of a prior order is pending (In re Ryan K., at p. 597;
In sum, these features of dependency proceedings may make appeals particularly prone to mootness problems. (See In re Michelle M. (1992) 8 Cal.App.4th 326, 330 [discussing this problem].) Parents 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.
Because dismissal of an appeal for mootness operates as an affirmance of the underlying judgment or order (In re Jasmon O. (1994) 8 Cal.4th 398, 413), such dismissals may ” ‘ha[ve] the undesirable result of insulating erroneous or arbitrary rulings from review’ ” (In re Marquis H. (2013) 212 Cal.App.4th 718, 724). This can pose issues not only for the parents subject to such findings, but also for state agencies that rely on such findings in the course of their duties, including child protective agencies, the State Department of Social Services, child support agencies, and school district officials. (See
Courts may consider whether the challenged jurisdictional finding “could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings,” or ” ‘could have other consequences for [the appellant], beyond jurisdiction.’ ” (In re Drake M., supra, 211 Cal.App.4th at pp. 762-763; see also In re Nathan E., supra, 61 Cal.App.5th at p. 121; In re C.C., supra, 172 Cal.App.4th at p. 1489.) A prior jurisdictional finding can be considered by the Department in determining whether to file a dependency petition or by a juvenile court in subsequent dependency proceedings. (See, e.g., In re Jeanette R. (1989) 212 Cal.App.3d 1338, 1340 [petition alleged parents were unfit in part because mother had a history of neglect as indicated by previous dependency proceedings]; Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 600 [affirming juvenile court‘s determination that reunification was not in child‘s best interests, in part because parents had previously had their parental rights as to three siblings terminated due to drug abuse and domestic violence].) Jurisdictional findings may also impact the child‘s placement (see, e.g., In re Christopher M. (2014) 228 Cal.App.4th 1310, 1317) or subsequent family law proceedings (see, e.g., In re Daisy H., supra, 192 Cal.App.4th at p. 716 [jurisdictional findings “could have severe and unfair consequences . . . in future family law or dependency proceedings“]). In such circumstances, ensuring the validity of findings on appeal may be particularly important.
The exercise of discretionary review may also be informed by whether the jurisdictional finding is based on particularly pernicious or
A court may also consider why the appeal became moot. Where a case is moot because one parent appealed and not the other, but the findings against the parent who has appealed are based on more serious conduct, it may serve the interest of justice to review the parent‘s appeal. The same may be true where a parent does not challenge all jurisdictional findings, but only one finding involving particularly severe conduct. Moreover, where, as here, the case becomes moot due to prompt compliance by parents with their case plan, discretionary review may be especially appropriate. After all, if D.P.‘s parents had not completed their supervision requirements in a timely fashion, the juvenile court‘s jurisdiction might have continued during the pendency of Father‘s appeal, and no mootness concern would have arisen. 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. (See, e.g., In re Joshua C., supra, 24 Cal.App.4th at p. 1548; In re A.R., supra, 170 Cal.App.4th at p. 740; cf. People v. DeLong (2002) 101 Cal.App.4th 482, 492 [declining to hold moot criminal appeal in which defendant promptly complied with drug treatment program and probation conditions in part because doing so would create a discrepancy regarding appeal rights based on compliance].) Principles of fairness may thus favor discretionary review of cases rendered moot by the prompt compliance or otherwise laudable behavior of the parent challenging the jurisdictional finding on appeal.
The factors above are not exhaustive, and no single factor is necessarily dispositive of whether a court should exercise discretionary review of a moot appeal. Ultimately, in deciding whether to exercise its discretion, a court 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.” (
Here the Court of Appeal concluded, contrary to today‘s opinion, that it had discretion to consider a moot appeal only if Father presented specific legal or practical negative consequences. We reverse the judgment of dismissal and remand to the Court of Appeal to reconsider Father‘s argument that discretionary review is warranted in light of the principles and factors discussed above. On remand, the Court of Appeal may allow Father to introduce additional evidence in support of discretionary review if appropriate. (See
CONCLUSION
We reverse the judgment of the Court of Appeal and remand for further proceedings consistent with this opinion.
LIU, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
CANTIL-SAKAUYE, J.*
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re D.P.
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP opn. filed 2/10/21 – 2d Dist. Div. 5
Rehearing Granted
Opinion No. S267429
Date Filed: January 19, 2023
Court: Superior
County: Los Angeles
Judge: Craig S. Barnes
Counsel:
Megan Turkat-Schirn, under appointment by the Supreme Court, for Defendant and Appellant.
Rita Himes for Legal Services for Prisoners with Children, Los Angeles Dependency Lawyers Inc., East Bay Family Defenders and East Bay Community Law Center as Amici Curiae on behalf of Defendant and Appellant.
Aditi Fruitwala, Minouche Kandel; Elizabeth Gill; and David Loy for American Civil Liberties Union of Southern California, American Civil Liberties Union of Northern California and American Civil Liberties Union of San Diego and Imperial Counties as Amici Curiae on behalf of Defendant and Appellant.
Emily Berger; Keiter Appellate Law and Mitchell Keiter for Los Angeles Dependency Lawyers, Law Office of Emily Berger and Thirteen Appellate Dependency Attorneys as Amici Curiae on behalf of Defendant and Appellant.
Mary C. Wickham and Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
Laura E. Hirahara for California State Association of Counties as Amicus Curiae on behalf of Plaintiff and Respondent.
Lounsbery Law Office and Tate Lounsbery as Amicus Curiae.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Megan Turkat-Schirn
Attorney at Law
269 South Beverly Drive, #193
Beverly Hills, CA 90212
(310) 279-0003
William D. Thetford
Principal Deputy County Counsel
500 West Temple Street, Suite 648
Los Angeles, CA 90012
(213) 808-8780