Opinion
B318502
07-27-2023
In re G.W., a Person Coming Under the Juvenile Court Law. v. REGINA W., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Paul Couenhoven, by appointment of the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. 21CCJP05331, Marguerita D. Downing, Judge. Affirmed.
Paul Couenhoven, by appointment of the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
ZUKIN, J.
INTRODUCTION
Regina W. (mother) appeals from the juvenile court's jurisdictional finding and dispositional orders declaring her son G.W. a dependent of the court. She argues we should reverse the court's jurisdictional finding because there is no substantial evidence that the maternal uncle's violence placed G.W. at substantial risk of serious physical harm. While mother's appeal was pending, however, the court terminated dependency jurisdiction in this matter. The Department of Children and Family Services (Department) contends mother's appeal is now moot. We agree. Nevertheless, because it appears the delay in this case was caused by factors outside of mother's control, we exercise our discretion to reach the merits of her claim. We conclude the court's jurisdictional finding is supported by substantial evidence and affirm.
The Department's request for judicial notice of the juvenile court's August 11, 2022 minute order is granted.
BACKGROUND
Mother and R.M. (father) are the parents of G.W. (age 9). Mother and father are no longer in a relationship but share equal legal and physical custody of G.W. G.W. alternates between their homes each week. Mother lives with her mother (G.W.'s grandmother) and her adult son, Christian B. (G.W.'s half-brother). Mother's brother Alex W. (G.W.'s uncle) maintains a bedroom in the home but does not live there full-time. The uncle is described in the record as a violent alcoholic.
In October 2021, the Department received a referral indicating G.W. did not feel safe at mother's home because the uncle punched holes in the wall and fought physically with the grandmother. The uncle had recently been arrested after punching his girlfriend in the face, yelling at the grandmother, and barricading himself in the home while yelling at police: "I got my .45 on my lap. You got guns, I got guns. Let's do this. Suicide by cop, motherfuckers." G.W. was at his father's house at the time.
On November 19, 2021, the Department filed a dependency petition alleging jurisdiction over G.W. (then age 6) under Welfare and Institutions Code section 300, subdivision (b)(1). The petition alleged mother had created a "detrimental and endangering" home environment for G.W. by allowing the uncle, "who is a current abuser of alcohol and repeatedly displays violent and assaultive behavior" to live there. It alleged mother knew about the uncle's "substance abuse and violence and assaultive behavior" but had failed to protect G.W. from him, which placed the child at risk of serious physical harm.
All undesignated statutory references are to the Welfare and Institutions Code. Section 300 was amended, effective January 1, 2023, to include changes nonsubstantive to the issues here. (Stats. 2022, ch. 832, § 1.) Unless otherwise indicated, we quote and analyze the 2023 version.
At the January 6, 2022 jurisdiction hearing, the court sustained the sole count of the petition, found G.W. to be a person described by section 300, subdivision (b), and released G.W. to the parents under the supervision of the Department. At the February 2, 2022 disposition hearing, the court declared G.W. to be a dependent of the court, released him to the parents, and ordered family preservation services for both parents.
Mother filed a timely notice of appeal from the jurisdiction finding and disposition orders. Father is not a party to this appeal.
On August 11, 2022, the court terminated jurisdiction over G.W. It did not alter the terms of the previous family law order.
DISCUSSION
Mother contends there is insufficient evidence to support the jurisdictional finding that her failure to bar the maternal uncle from the home placed D.W. at substantial risk of serious physical harm. The Department argues termination of dependency jurisdiction below has rendered this appeal nonjusticiable and, regardless, substantial evidence supports the court's finding.
1. Mootness
As discussed, on November 19, 2021, the Department filed a one-count dependency petition alleging jurisdiction over G.W. under section 300, subdivision (b)(1). The petition alleged mother had failed to protect G.W. by allowing the maternal uncle, a violent alcoholic, to reside in the family home, thereby placing G.W. at risk of serious physical harm. The court sustained the allegation, declared G.W. to be a dependent of the court, and released him to the parents. On August 11, 2022, the court terminated dependency jurisdiction over G.W. Although we agree with the Department that the appeal is now moot, we exercise our discretion to consider the merits of mother's claim.
In general, we are "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 before [us]."' [Citation.]" (In re D.P. (2023) 14 Cal.5th 266, 276 (D.P.).) "A case becomes moot when a court ruling can have no practical impact or cannot provide the parties with effective relief." (Simi Corp. v. Garamendi (2003) 109 Cal.App.4th 1496, 1503.) "For relief to be 'effective,' two requirements must be met. First, the plaintiff must complain of ongoing harm. Second, the harm must be redressable or capable of being rectified by the outcome the plaintiff seeks. [Citation.]" (D.P., at p. 276.) "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 . . . that is capable of being redressed by a favorable court decision. [Citation.] For example, 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.)
An order terminating juvenile court jurisdiction generally moots any appeal from a previous order in the dependency proceedings. (In re C.C. (2009) 172 Cal.App.4th 1481, 1488.) Here, mother contends the evidence was insufficient to support the court's assertion of jurisdiction over G.W. Even were we to agree, our decision could have no practical impact on the underlying dependency proceeding. Mother acknowledges as much: G.W. remained in her custody at all relevant times, and the court's exercise of jurisdiction did not lead to any change in placement or custody status. Thus, mother concedes, the appeal is moot. However, dismissal is not automatic.
In D.P., the Supreme Court emphasized that "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. [Citation.]" (D.P., supra, 14 Cal.5th at p. 284.) "Appellate review, by contrast, proceeds more slowly." (Ibid.) Because dependency appeals are "particularly prone to mootness problems" (ibid.), the mootness rule in these matters is prudential, not jurisdictional. Thus, we "must decide on a case-by-case basis whether it is appropriate to exercise discretionary review to reach the merits of a moot appeal, keeping in mind the broad principles [governing the dependency system] and nonexhaustive factors" identified by the Supreme Court. (Id. at p. 287.)
One factor we consider is why the appeal became moot. (D.P., supra, 14 Cal.5th at p. 286.) "Principles of fairness . . . favor discretionary review of cases rendered moot by the prompt compliance or otherwise laudable behavior of the parent challenging the jurisdictional finding on appeal." (Ibid.) Here, mother began participating in family preservation services even before the court ordered her to do so and presumably completed her case plan before the first judicial review hearing, when the court terminated jurisdiction. That factor alone weighs in favor of our exercise of discretion to consider the merits of her appeal.
That factor is amplified, however, by the other reason the case became moot: the lengthy, administrative delays in processing mother's appeal. Mother filed her notice of appeal on February 14, 2022-less than a fortnight after the disposition hearing. Although the court reporters filed the hearing transcripts within weeks, it took six months for the superior court clerk to prepare the one-volume clerk's transcript and another three weeks for the clerk to transmit copies of the transcript to this court, the California Appellate Project, and County Counsel. Mother's appeal then languished for another six months or so while she waited for legal assistance. Counsel was not appointed to represent mother until March 1, 2023, more than a year after she filed her notice of appeal. Once counsel was appointed, he filed mother's opening brief in ten days; the case was fully briefed and set for oral argument within the month.
On our own motion, we take judicial notice of our docket and court file in this appeal.
"Because dismissal of an appeal for mootness operates as an affirmance of the underlying judgment or order [citation], such dismissals may '"ha[ve] the undesirable result of insulating erroneous or arbitrary rulings from review"' [citation]. This can pose issues not only for the parents subject to such findings, but also for state agencies that rely on [them] in the course of their duties." (D.P., supra, 14 Cal.5th at p. 285.) Given that we did not receive a transcript in this case until after the court below terminated jurisdiction, it is clear mother is blameless for the delay in this appeal and consequent mootness. Accordingly, in the interest of justice, we exercise our discretion to reach the merits of her claim.
2. Substantial Evidence Supports the Court's Jurisdiction Finding
Mother contends the court's jurisdictional finding is not supported by substantial evidence because the Department did not prove that G.W., who never personally witnessed the uncle's violence, faced a substantial current risk of serious physical harm. We disagree.
2.1. Legal Principles and Standard of Review
Section 300's stated purpose "is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." (§ 300.2, subd. (a); see In re A.F. (2016) 3 Cal.App.5th 283, 289.) The juvenile court has jurisdiction over a child 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" a parent's "failure or inability . . . to adequately supervise or protect the child." (§ 300, subd. (b)(1)(A).)
Thus, the court may assume jurisdiction over a child under section 300, subdivision (b)(1)(A), if the Department proves: (1) the parent's or guardian's neglectful conduct or failure or inability to protect the child; (2) causation; and (3) the child suffered serious physical harm or illness or faces a substantial risk of serious physical harm or illness. (In re L.W. (2019) 32 Cal.App.5th 840, 848; see In re R.T. (2017) 3 Cal.5th 622, 624 ["section 300(b)(1) authorizes dependency jurisdiction without a finding that a parent is at fault or blameworthy for her failure or inability to supervise or protect her child"].)
Although section 300 requires the Department to prove the child is subject to a defined risk of harm at the time of the jurisdiction hearing (In re D.L. (2018) 22 Cal.App.5th 1142, 1146), the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child. (In re I.J. (2013) 56 Cal.4th 766, 773.) In addition, the court may consider past events in deciding whether a child currently needs the court's protection. (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1215-1216.)
"'In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them. "In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court."'" (In re I.J., supra, 56 Cal.4th at p. 773.)
2.2. Substantial Evidence Supports the Court's Finding
Exposure to domestic violence may serve as the basis for a jurisdiction finding under section 300, subdivision (b)(1). (In re R.C. (2012) 210 Cal.App.4th 930, 941.) "'[D]omestic violence in the same household where children are living is neglect; it is a failure to protect [them] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it.' [Citation.]" (In re S.O. (2002) 103 Cal.App.4th 453, 460-461.)
Mother argues G.W. was not at risk of serious physical harm because he never personally observed the uncle's violence; mother had always removed G.W. from the home or confined him to his bedroom when the uncle began drinking. Yet jurisdiction may be appropriate even when the child does not directly witness domestic violence, "since a minor can be 'put in a position of physical danger from this violence, since, for example, they could wander into the room where it was occurring and be accidentally hit by a thrown object, by a fist, arm, foot or leg.' [Citation.]" (In re L.O. (2021) 67 Cal.App.5th 227, 238.)
Here, G.W. perceived the violence around him, even if he had not seen it. G.W. reported that he did not feel safe when the uncle was home because the uncle drank a lot, got mean, and fought with everyone. He had seen holes in the walls and doors and knew they'd been made by his uncle's punches and kicks. From his bedroom, G.W. could hear fights and arguments involving his mother, uncle, and grandmother. And, although there was some dispute about the uncle's gun ownership, G.W. reported that his uncle kept a gun in his room-and had even seen the gun sitting in a drawer.
Mother also stresses that the violence was unlikely to recur because she had obtained a protective order barring the uncle from her presence. She obtained the order on December 3, 2021, and it was set to expire on December 3, 2022. Thus, she argues, by the time of the January 6, 2022 jurisdiction hearing, G.W. was not at current risk of serious physical harm.
We may not re-weigh this evidence, however. Its import was for the court below to decide-and the court was skeptical that mother and grandmother would enforce the restraining order; despite the order's existence, the court explained: "Mother is residing in grandmother's home. Grandmother does not seem to be serious, and I do not really believe the mother is going to be protective because of all this stuff has been going on. Uncle has been doing laundry in violation of a temporary restraining order.... I don't really have any confidence without some different orders, anything is going to change."
Viewed under our required standard of review, the record supports the court's conclusion. The grandmother had previously obtained-but failed to enforce-at least one prior restraining order against the uncle. (See In re J.N. (2021) 62 Cal.App.5th 767, 775 ["Evidence of past conduct may be probative of current conditions, and may assist DCFS in meeting" its burden of proof].) She had refused to bar the uncle from her home for years. Indeed, even after the uncle's arrest, he continued to maintain his own room in the house, which was full of his belongings, from which the court could reasonably infer a mere temporary absence. On this record, we conclude substantial evidence supports the court's jurisdiction finding.
DISPOSITION
The orders are affirmed.
WE CONCUR: CURREY, P.J., MORI, J.