In re DAVID B., a Person Coming Under
A146632 (Contra Costa County Super. Ct. No. J1500993)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
Filed 6/7/17
CERTIFIED FOR PUBLICATION
We are asked to review the dismissal of a juvenile dependency petition for a young man, appellant David B., who at age 17, 11 months, was on the cusp of adulthood when the dependency petition in this case was filed, but who is now over age 18. David B., a victim of past gun violence, is a wheelchair-bound diabetic in need of day-to-day medical assistance. He was living in a homeless shelter when the dependency petition was filed. The petition alleges he was abandoned by his mother and left without means of support. If that is true and the juvenile court erred in dismissing the petition, he would almost certainly benefit from transitional support as a nonminor dependent until age 21.
But there is a catch. Dependency jurisdiction may not be initiated in the first instance over someone who is over age 18; it must be initiated before age 18, and by the plain terms of the Juvenile Court Law, may only be “retain[ed],” “continu[ed]” or “resum[ed]” for nonminors in certain circumstances until age 21. (E.g.,
In essence, the Legislature created a form of dependency jurisdiction for nonminors until age 21, but made it derivative of dependency jurisdiction assumed prior to age 18. What that means here, according to respondent Contra Costa County Children and Family Services Bureau (the Bureau), is that this case is now moot and any error by the juvenile court in failing to assume dependency jurisdiction over David B. is effectively unreviewable.
Reluctantly, we must agree. Because David B. is now over age 18, he could not be declared a dependent on remand even if we were to conclude the juvenile court erred, and thus, at this point, we have no power to provide effective relief. We can order many things in resolving an appeal, but we cannot order David B. to be 17 again. We will therefore dismiss the appeal as moot.
I. BACKGROUND
On September 24, 2015, the Bureau filed a dependency petition on behalf of David B. under
In a detention report filed on September 25, 2015, the Bureau stated it received a referral about David B. in July 2015. A social worker spoke with David B., who was wheelchair-bound and hospitalized due to complications from his diabetes. David B. told the social worker he was in the wheelchair because he had been shot several times in the past. The social worker stated he was pleasant but unwilling to provide personal information or family history. He told the social worker that both of his parents were deceased. The social worker spoke with David B.‘s godmother, who stated David B.‘s parents were deceased but would not provide additional information. Upon his discharge from the hospital, David B. returned by taxi to the youth homeless shelter where he had been staying. The Bureau closed the July 2015 referral, stating it could not verify his parents were deceased, he was receiving services at the shelter, and he was refusing the Bureau‘s services.
In September 2015, the Bureau received another referral. David B. had left the shelter to live in San Francisco but had returned. He told the social worker that he had been living on the streets with his cousin, but that his cousin had been killed. He said he wanted to start a new life, including obtaining a high school diploma and living and working on his own, and needed the Bureau‘s assistance to do so. The social worker told David B. that, in order for the Bureau to provide him with assistance, he would need to provide truthful information about his situation. David B. then told the social worker that his mother was living in St. Louis, but that he was unable to provide contact information for her. He provided a telephone number for a maternal aunt; the social worker left two voicemail messages at that number but received no response. The social worker sent a letter to an address she located for David B.‘s mother, asking her to contact the Bureau. The social worker also tried calling a number David B. provided for his mother‘s boyfriend, but the number was disconnected. At some point, David B. stated his mother lived in Chicago, rather than St. Louis.
A case manager at the homeless shelter told the social worker that David B. was receiving some services through the shelter. The shelter had assisted him in taking steps to apply for public benefits and housing, to enroll in high school, and to obtain a California identification card. An attorney with Bay Area Legal Aid contacted the social worker and stated he was working with David B. to ensure he received services from the Bureau.
At the detention hearing on September 25, 2015, the court found there was a prima facie showing that David B. was a person described by
In a memorandum report submitted for the October 9 hearing, the Bureau stated that both staff at the shelter and school personnel had reported David B. was not compliant with his diabetes medication regimen and was unwilling to monitor his blood sugar levels regularly. Staff at the shelter are not able to administer medication or require residents to take their medication; staff can only encourage residents to do so. A blood test conducted in July 2015 showed David B.‘s diabetes had been out of control since at least April 2015. He needed to be medication-compliant to stay in school.
Shelter staff also reported David B. had been hospitalized on Sunday, October 4, 2015. David B. had left the shelter after dinner on Friday, October 2, 2015, and had not returned until Sunday evening. He appeared intoxicated and was vomiting, and paramedics rushed him to the hospital. The paramedics stated David B. was combative during the ride to the hospital. At the hospital, it was determined he was hyperglycemic and suffering from diabetic ketoacidosis. He also had possible swelling of the brain. He was confused, incoherent and combative, and had to be restrained by hospital staff. Once his condition stabilized, the hospital was ready to release him, but wanted shelter staff to be trained to administer David B.‘s insulin shots. As noted, however, shelter staff cannot administer medication. Shelter staff informed the social worker that the shelter has a respite program with 24-hour medical supervision, and the Bureau was also exploring other possible placements for David B.
At the October 9 hearing, counsel for the Bureau stated the Bureau had managed to contact David B.‘s adult sister, who lived in San Francisco. Counsel stated that David B.‘s sister had reported their mother was alive and identified the city and state where the mother lived. Counsel stated the sister reported that the mother raised both David B. and the sister, and that David B. had left home on his own. Counsel stated the Bureau wanted to attempt to send formal notice to the mother, stating “this may not be an abandonment case.” Counsel for David B. responded by stating she believed the Department had already sent two letters to the mother and had not received a response. The court set a contested jurisdiction/disposition hearing for October 14, 2015.
The Bureau also reported it had spoken with David B.‘s 19-year-old sister. Although the sister provided information, she responded to most of the social worker‘s questions by saying ” ‘I don‘t know.’ ” The sister stated their mother was in Jennings, Missouri. The Bureau stated that David B.‘s sister “reported that their mother was willing to be involved in David B.‘s care.” David B.‘s sister stated their mother had cared for them. She described her childhood with their mother as ” ‘great’ ” and told the Bureau that their mother provided for their material needs and supported them emotionally. The Bureau reported that the sister “stated the reason [David B.] was not with their mother was that he wanted to be ‘grown’ and to do what he wanted to do.” The sister declined to forward any information about David B.‘s situation to their mother. The Bureau also described its unsuccessful efforts to contact David B.‘s mother. On October 8 and 10, 2015, the social worker telephoned David B.‘s maternal grandmother twice and left voicemail messages, explaining the reason she was calling and requesting a return call, but the grandmother did not call back. The social worker also repeatedly attempted to reach David B.‘s mother by telephone (using a number provided by David B.‘s sister) from October 8 through October 10, 2015. The social worker left two detailed messages, each time identifying herself, stating the reason for her call, and requesting that the mother of David B. return the call. On the third attempt, the social worker spoke with a woman who identified herself as David B.‘s mother‘s cousin. The cousin stated that the phone number belonged to her, and that David B.‘s mother was using it as a temporary contact number. The cousin stated she lived in New York. She stated
The hospital social worker told the Bureau that David B.‘s diabetes was under control and he was medically ready to be discharged. But he needed to be discharged to a caregiver who was trained to assist in administering his insulin, and the hospital was waiting for the Bureau to locate a placement in which such care could be provided. Hospital staff also recommended David B. undergo a neuropsychiatric evaluation, in light of questions about his critical thinking and his ability to make sound decisions. He was unable to provide consistent information about his medical or personal history.
The social worker had spoken with a representative of the county health services department, who identified a respite center that was able to accept David B. into its program. The program works with young adults, has medical staff on hand five days a week, and works closely with the homeless shelter where David B. had been staying, so his case manager at the shelter could continue in that role.
The Bureau stated in its report that David B. had not been forthcoming with the Bureau. David B. had declined to meet with the social worker unless his case manager from the shelter was present, which created a “barrier” due to the conflicting schedules of the social worker and the case manager. He also declined to meet with the social worker when she tried to visit him at the hospital on October 7. The Bureau also stated much of the information David B. had provided was inaccurate (such as stating that he had no relatives in the area, and that the shelter was withholding his medication). The family members the Bureau had been able to contact had not been willing to provide much information. The Bureau stated that, due to David B.‘s failure to provide accurate information, the Bureau had not had enough time to locate his mother, notify her of the proceedings, and “assess her willingness or ability to provide care or select an appropriate substitute care provider for her son.” The Bureau stated the information provided by David B.‘s sister showed the allegations in the petition were not true.
The Bureau stated it intended to continue to coordinate and secure appropriate services for David B., including a neuropsychiatric evaluation and services identified by the respite center and the homeless shelter.
At the October 14, 2015 hearing, the court stated it had reviewed the Bureau‘s reports. David B. was not present at the hearing but was on the telephone from the hospital. The court admitted into evidence a letter from David B.‘s physician explaining why David B. could not attend the hearing.
David B.‘s counsel argued David B. had been left without any provision for support and was described by
Counsel for the Bureau argued for dismissal, contending that the information provided by David B. was unreliable, and that the information provided by his sister showed he was a runaway and was not abandoned.
The court dismissed the petition. The court stated it had carefully reviewed the evidence and concluded it did not show David B. had been left without any provision for his support. The court found that David B. had a support system in place but had chosen to leave it behind to be on his own. He was not abandoned. The court concluded there was not sufficient evidence to support a finding that David B. was described by
II. DISCUSSION
In general, it is a court‘s 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.” ’ ” (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.) “[T]he 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.” (In re N.S. (2016) 245 Cal.App.4th 53, 60.) A court ordinarily will dismiss an appeal when it cannot grant effective relief, but may instead “exercise its inherent discretion to resolve an issue when there remain ‘material questions for the court‘s determination’ [citation], where a ‘pending case poses an issue of broad public interest that is likely to recur’ [citation], or where ‘there is a likelihood of recurrence of the controversy between the same parties or others.’ ” (Id. at p. 59.)
The Bureau contends this appeal is moot because David B. is now over age 18 and the juvenile court cannot “take jurisdiction for the first time of a person older than 18.” We agree the appeal is moot.
A. The Juvenile Court Cannot Initiate Dependency Jurisdiction Over A Person Who Is Over Age 18
The juvenile court is a court of limited jurisdiction. ” ‘In dependency proceedings, ” ’ [a] superior court convened as and exercising the special powers of a juvenile court is vested with jurisdiction to make only those limited determinations authorized by the legislative grant of those special powers.’ [Citations.] In the absence of such specific statutory authorization, a juvenile court is vested with authority to make only those determinations which are ‘incidentally necessary to the performance of those functions demanded of it by the Legislature pursuant to the Juvenile Court Law.’ ” ’ ” (In re A.R. (2012) 203 Cal.App.4th 1160, 1170.)
A child becomes a dependent of the juvenile court only if (1) the court finds at the jurisdiction hearing that the child is a person described by
Decisions by the Courts of Appeal support the Bureau‘s position that a juvenile court may not make an initial adjudication of dependency for a person who is over age 18. In In re Gloria J. (1987) 188 Cal.App.3d 835, 838-839 (Gloria J.), the Court of Appeal held that, for a juvenile court to obtain dependency jurisdiction over a minor, it is not sufficient for the dependency petition to be filed before the minor‘s 18th birthday; the jurisdictional hearing must occur before that date. (Gloria J., supra, at pp. 838-839.) In Gloria J., the dependency petition was filed when the minor, Gloria J., was 17 years old, and the jurisdiction hearing was initially set for a date prior to her 18th birthday, but was continued because counsel for one of the parties was ill. (Id. at pp. 836-837.) At the jurisdiction hearing, which ultimately was held after Gloria J. had turned 18, the juvenile court sustained the petition. (Id. at p. 837.)
On appeal from the subsequent disposition order, the Court of Appeal reversed and ordered the petition dismissed. (Gloria J., supra, 188 Cal.App.3d at p. 837.) The appellate court held that, under the applicable statutes (former §§ 300 & 355), the juvenile court may only take jurisdiction over persons who are under age 18. (Gloria J., supra, at p. 838.) The Gloria J. court noted the language of former section 300, which stated, “Any person under the age of 18 years who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court . . . .” (Former
Instead of specifying “[a]ny person under the age of 18 years” who comes within certain descriptions is within the jurisdiction of the juvenile court (see former
The Bureau argues that the use of the term “child” in
First, a close reading of the statutory scheme reveals that the Bureau‘s reliance on the definition of “child or minor” in section 101 is misplaced. The definitions in section 101 do not apply to terms used in section 300 or related statutes. Section 101 states the listed definitions apply to the specified terms “[a]s used in this chapter,” i.e., Chapter 1 of Part 1 of Division 2 of the Welfare and Institutions Code (governing Court-Appointed Special Advocates). The statutes at issue here, including section 300 and the other cited provisions pertaining to the jurisdiction and disposition hearings, appear in Chapter 2 of Part 1 of Division 2 of the Code (the “Juvenile Court Law,” see § 200). (But see In re K.L., supra, 210 Cal.App.4th at p. 640 [relying on definition of “dependent” in § 101].) In addition, contrary to the Bureau‘s assertion, the current version of section 101 does not define “child or minor” to mean “a person under 18 years of age.” Effective January 1, 2016, the statute defines “child or minor” to mean “a person under the jurisdiction of the juvenile
Ultimately, however, we reach the same conclusion that the Bureau does in construing the statutory language, not by reliance on the single statutory term “child,” but by reading the statutory scheme as a whole. When various provisions describing nonminor dependency jurisdiction for persons over age 18 are read in context, it seems plain that this particular form of dependency jurisdiction is merely derivative of jurisdiction assumed earlier, prior to age 18. As we read it, the statutory scheme reflects a clear recognition by the Legislature that, while dependency jurisdiction may continue to age 21, it must be initiated before age 18.
B. This Appeal Is Moot
1. We Cannot Provide Effective Relief
Because the juvenile court cannot initiate dependency jurisdiction over David B., the present appeal is moot. As noted, the court found at the October 2015 jurisdictional hearing that David B. was not a person described by
In addressing mootness in their briefs, and in response to our request that the parties focus their attention at oral argument on the issue of mootness, David B. and amicus curiae do not argue the juvenile court could hold a new jurisdictional hearing. They contend, however, that David B. was described by
David B. cites
Amicus curiae also argues we can direct the trial court to assume jurisdiction over David B. pursuant to the nunc pro tunc doctrine. This argument confuses the power of nunc pro tunc correction with the power of appellate review. The nunc pro tunc doctrine does not authorize the retroactive replacement of the juvenile court‘s order (finding David B. was not described by
Finally, amicus curiae notes that, when a juvenile court has assumed jurisdiction over a person, the person‘s 18th birthday does not divest the court of jurisdiction and does not necessarily render moot an appeal from an order
Ruth M. is illustrative. In that case, four minor siblings were made dependents of the juvenile court; at a permanency planning hearing, the juvenile court ordered a plan of long-term foster care; and the children‘s mother appealed. (Ruth M., supra, 229 Cal.App.3d at pp. 478-480.) The appellate court noted the oldest sibling had turned 18 during the pendency of the appeal, and stated: “However, it is necessary for this court to review the order as it affects the rights of the parties as of the time it was made; the appeal is not moot.” (Id. at p. 480, fn. 4.) The court also cited section 303, providing a juvenile court may retain jurisdiction over a dependent child until he or she reaches age 21. (Ruth M., supra, at p. 480, fn. 4.) As a general matter, we do not disagree with the statement in Ruth M. that an appellate court should review an order as of the time it was made. (Ibid.) But as we have discussed, since the juvenile court here (unlike the juvenile court in Ruth M.) did not assume dependency jurisdiction before David B. reached age 18, it cannot initiate dependency jurisdiction now, and we cannot direct it to do so. Since we cannot grant effective relief, the appeal is moot.10
2. None of the Discretionary Exceptions to Mootness Applies
To the extent we have discretion to resolve issues presented in this appeal despite our inability to grant relief to David B. (see In re N.S., supra, 245 Cal.App.4th at p. 59), we decline to address the merits on that basis. Since David B. cannot be the subject of new dependency proceedings, any ruling we might make could not affect future proceedings involving him. (See id. at pp. 61-63.) Amicus curiae argues that the juvenile court‘s acceptance of the
On rare occasions, appellate courts will proceed to decide moot cases presenting “an issue of broad public interest that is likely to recur.” (In re William M. (1970) 3 Cal.3d 16, 23.) We note there are differences in the phrasing used by courts to describe this and a related exception to mootness, with varying degrees of emphasis on the importance of the issue presented and the likelihood that it will recur. Some decisions state an appellate court has discretion to resolve “an issue of broad public interest that is likely to recur.” (E.g., In re William M., supra, 3 Cal.3d at p. 23, italics added; accord, In re N.S., supra, 245 Cal.App.4th at p. 59.) Others state an appellate court may decide “otherwise moot cases presenting important issues that are capable of repetition yet tend to evade review.” (E.g., Conservatorship of Wendland (2001) 26 Cal.4th 519, 524, fn. 1, italics added; accord, Thompson v. Department of Corrections (2001) 25 Cal.4th 117, 122.) Another version of the rule may be found in decisions focusing primarily on the importance of the issue presented (e.g., In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1086 [“[W]e may decline to dismiss a case that has become moot ‘where the appeal raises issues of continuing public importance’ “]), and still others referring only to the likelihood the issue will recur (e.g., Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1011, fn. 5 [addressing issue where it was “likely” the issue was “one capable of recurring, yet of evading review because of mootness“]). Finally, as noted, some decisions state that, apart from the mootness exception for issues of public importance, there is what appears to be a narrower exception where ” ‘there is a likelihood of recurrence of the controversy between the same parties or others’ ” (e.g., In re N.S., supra, 245 Cal.App.4th at p. 59, italics added; accord, Grier v. Alameda-Contra Costa Transit Dist. (1976) 55 Cal.App.3d 325, 330), while other decisions limit this exception to a scenario where there is a likelihood of recurrence of the controversy between
Despite the nuanced variation in these articulations of when an appellate court may proceed to decide an otherwise moot appeal, the common thread running through the cases is that doing so 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. (See In re William M., supra, 3 Cal.3d at p. 25 [deciding issue presented in otherwise-moot appeal, “[i]n the hope that we may provide much-needed guidance for ‘the orderly administration of justice’ “].) That standard is not met here. We do not doubt that the issue of youth homelessness is a matter of broad public importance that might well justify invoking a discretionary exception to mootness in the proper circumstances, but this is not that case. At bottom, David B. and amicus curiae present nothing more than a substantial evidence challenge to the trial court‘s dismissal of the Bureau‘s petition. We see no basis for exercising discretion to address the fact-specific questions whether David B. was described by section 300, and whether the juvenile court‘s determination on that point is supported by substantial evidence. (See In re M.C. (2011) 199 Cal.App.4th 784, 802 [deciding issues of statutory interpretation and separation of powers despite mootness, but declining to address whether sufficient evidence supported juvenile court order, because that was “not an issue of continuing public importance“]; MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 215 [resolution of issues presented in appeal “would be unlikely to provide guidance” for future disputes, because the issues “are essentially factual in nature and therefore require resolution on a case-by-case basis“].)
While nothing can be done for David B. in this case, the record here does provide a cautionary tale for those representing individuals who may find themselves in his position—teens on whose behalf dependency petitions are filed, for whatever reason, on the eve of the age of majority, and who receive adverse juvenile court decisions declining to assume dependency jurisdiction.
III. DISPOSITION
The appeal is dismissed.
Streeter, J.
We concur:
Reardon, Acting P.J.
Rivera, J.
A146632/In re David B.
Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Thomas M. Maddock
Counsel:
Valerie N. Lankford, by appointment of the Court of Appeal, for Defendant and Appellant.
Bay Area Legal Aid, Brian Blalock, Erin Palacios, and Sabrina Forte as Amicus Curiae on behalf of Defendant and Appellant.
Sharon L. Anderson, County Counsel, Marke Estis, Deputy County Counsel, for Plaintiff and Respondent.