In re Rashad D. ( 2021 )

Filed 4/19/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re RASHAD D., a Person B307061
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No. 20CCJP01245A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
R.D.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Martha Matthews, Judge. Appeal
dismissed.
Darlene Azevedo Kelly, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Marrisa Coffey, under appointment by the Court of Appeal,
for Minor.
______________________
INTRODUCTION
The juvenile court declared three-year-old Rashad D. a
dependent child of the court after sustaining an amended petition
under Welfare and Institutions Code section 300,
subdivision (b)(1),1 alleging his mother’s six-year history of illicit
drug use rendered her incapable of providing regular care and
supervision of the child. On appeal R.D. (Mother) contends
evidence of her past substance abuse and a fear she would
relapse were insufficient to support a finding Rashad was at
substantial risk of serious physical harm, as required for the
exercise of dependency jurisdiction.
Three months after sustaining the petition, while Mother’s
appeal of the juvenile court’s jurisdiction finding and disposition
order was pending, the court terminated jurisdiction and issued a
custody order awarding sole physical custody of Rashad to
Mother and joint legal custody to Mother and Deon O., Rashad’s
father. Mother contends this development does not moot her
appeal because she previously had sole physical and legal custody
of Rashad and the new custody order, by awarding Deon joint
legal custody and expanding his monitored visitation rights,
1 Statutory references are to this code unless otherwise
stated.
2
adversely affects her on an ongoing basis. Mother also asks us to
exercise our discretion to decide the case as one raising an issue
of broad public interest that is likely to recur.
We dismiss the appeal. Mother is correct that termination
of dependency jurisdiction does not necessarily moot an appeal
from a jurisdiction finding that directly results in an adverse
juvenile custody order. But in most cases, including the one at
bar, for this court to be able to provide effective relief, the parent
must appeal not only from the jurisdiction finding and disposition
order but also from the orders terminating jurisdiction and
modifying the parent’s prior custody status. Without the second
appeal, we cannot correct the continuing adverse consequences of
the allegedly erroneous jurisdiction finding.
As for Mother’s alternate contention, this case does not
present an issue of broad public interest. The highly fact-specific
question whether, by the time of the jurisdiction hearing,
Mother’s current circumstances, in light of her extended history
of substance abuse, 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. (See In re David B. (2017)
12 Cal.App.5th 633, 654 [no basis exists for exercising discretion
to hear otherwise moot appeal “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”]; 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”].)
3
FACTUAL AND PROCEDURAL BACKGROUND
1. The Initial Dependency Case
In October 2017 the juvenile court sustained a petition filed
by the Los Angeles County Department of Children and Family
Services (Department) pursuant to section 300, subdivision (b)(1),
on behalf of then-six-month-old Rashad, alleging Mother had a
four-year history of illicit drug use, was a current user of PCP
and cocaine and had used PCP and cocaine during her pregnancy
with Rashad, all of which rendered her incapable of providing
regular care and supervision of her child; Deon knew of Mother’s
drug use and failed to protect Rashad; and Deon also had a
history of substance abuse. Rashad was removed from Mother’s
and Deon’s custody.
Mother participated in reunification services. Deon failed
to make substantial progress in his case plan. The juvenile court
terminated jurisdiction in May 2019 and awarded Mother sole
physical and legal custody of Rashad. Deon was limited to one
monitored visit each year, “on or near Father’s Day upon Father’s
request.”
2. The New Dependency Petition
In early February 2020 the Department received a report
that Mother was seen at a drug house and had relapsed. The
maternal grandmother, with whom Mother had been living when
the prior dependency case closed, said she had been unable to
contact Mother for a month. A maternal uncle informed the
social worker Mother told him in April 2019 that she had started
using drugs again. He believed Mother had relapsed based on
her weight loss (estimated at 150 pounds) and the fact she was
out “all hours of the night before disappearing with the child.”
4
When reached via telephone by a Department social worker
on February 20, 2020, Mother said she was living in San
Bernardino County. She declined to provide her address or agree
to an interview.
On March 3, 2020 the Department filed a new dependency
petition under section 300, subdivision (b)(1), alleging Mother
“has a six year history [of] illicit drug use including use[ ] of PCP
and cocaine, and is a current abuser of illicit substances, which
renders the mother incapable of providing regular care and
supervision of the child.” The petition also alleged that Deon
failed to protect Rashad when he knew of Mother’s drug use, had
a history of substance abuse and was a current abuser of
substances. Based on the Department’s detention report, the
court found a prima facie showing had been made that Rashad
was a child described by section 300 and that detention from the
parents was necessary to protect the child.
Interviewed for the jurisdiction/disposition report filed
May 15, 2020, Mother acknowledged her history of substance
abuse but denied she was currently using any drugs. She told
the dependency investigator she was living with her boyfriend in
Culver City and was sober and participating in a support group.
As reflected in subsequent reports prior to the rescheduled
jurisdiction hearing,2 Mother had five negative drug tests and
two no-shows.
2 The jurisdiction hearing, originally scheduled for May 1,
2020, was continued to July 22, 2020 due to COVID-19
restrictions. Mother made her initial appearance on July 22. At
that time the court ordered Rashad released to Mother under the
continued supervision of the Department on condition that she
5
Contacted again on July 2, 2020 the maternal uncle
explained the family’s inability to communicate with Mother
earlier in the year had caused their fear she might have relapsed.
He explained he had not seen Mother use drugs or get drunk
after her prior case had closed, and he currently felt Rashad was
safe with Mother.
In its original jurisdiction/disposition report the
Department recommended the court sustain the petition as
written and remove Rashad from the care and custody of Mother
and Deon to ensure the child’s safety. In addition to Mother’s
significant history of drug abuse, the Department was concerned
“regarding mother’s lack of cooperation and limited
communication during the referral and dependency
investigation.”
In a supplemental report two months later the Department
requested the court dismiss the petition for lack of evidence. The
report stated it was the Department’s “impression” “the safety
and well-being of child Rashad can be ensured in the care and
custody of [Mother].”
3. The Jurisdiction/Disposition Hearing
At the outset of the jurisdiction hearing the court confirmed
the Department’s position was that the situation had stabilized
and the petition should be dismissed. Counsel for Rashad asked
the court to sustain the first count of the petition relating to
and Rashad reside with the maternal grandmother. The
jurisdiction hearing was continued to August 5, 2020.
6
Mother, but to conform it to proof by deleting the language
concerning current substance abuse.3
Mother testified she had been sober for three years and
regularly talked to her sponsor. She denied telling her brother
she had relapsed and said she had not had a significant weight
loss. Explaining why she had left the maternal grandmother’s
home without telling her family where she and Rashad were,
Mother said she had been looking for a place to live with her
boyfriend and did not feel she needed to communicate with her
family.
Following argument of counsel the court sustained “a fairly
heavily amended version of b-1” to conform to proof, noting there
really was no evidence of current abuse of illicit substances. As
amended, the sustained count stated only that Mother’s history of
illicit drug use placed Rashad at substantial risk of serious
physical harm. The court struck all references to Deon, who was
determined to be nonoffending in the amended petition.
The court declared Rashad a dependent child of the
juvenile court. The court ordered that Rashad remain released to
Mother with family maintenance services; set a three-month,
rather than a six-month, progress review; and, “if everything is
okay, then dismiss the case then.” Mother’s case plan included
drug testing and Narcotics Anonymous or other substance abuse
aftercare. Deon was provided with enhancement services and a
written schedule for monitored visitation. Mother filed a timely
3 Minor’s counsel added, if Deon was not seeking custody,
she would “submit on striking him from the petition and just
reverting to the [juvenile custody order] that is in place from the
prior case.”
7
notice of appeal from the August 5, 2020 jurisdiction finding and
disposition order.
4. Termination of Dependency Jurisdiction
At the section 364 review hearing on November 4, 2020, the
court found the conditions that justified its initial assumption of
jurisdiction no longer existed and were not likely to exist if court
supervision was withdrawn. Because continued supervision was
no longer required, the court terminated jurisdiction. In its
minute order the court awarded sole physical custody to Mother
and joint legal custody to Mother and Deon and ordered
monitored visits for Deon one time per week for three hours per
visit with a mutually agreed-upon monitor. The court stayed its
order until November 10, 2020 for receipt of a proposed juvenile
custody order to be prepared by Mother’s counsel. On
November 10, 2020 the court lifted its stay, terminated
jurisdiction, and signed and entered the juvenile custody order
pursuant to section 362.4.4
Mother did not appeal the November 4 and 10, 2020 orders
terminating dependency jurisdiction and issuing the juvenile
custody order.
DISCUSSION
On appeal Mother, while acknowledging someone with her
history of substance abuse is at risk of relapse and that this risk
is always worrisome, contends none of the factors the court
identified as red flags—the maternal uncle’s concerns, her
4 Concurrently with filing his brief in support of the juvenile
court’s jurisdiction finding, Rashad moved for judicial notice of
the orders terminating dependency jurisdiction and its juvenile
custody order. We granted the motion.
8
unexplained absence from the maternal grandmother’s home and
failure to communicate with her family, and her lack of initial
cooperation with the Department—constituted substantial
evidence she was leaning toward, let alone experiencing, a
relapse. Because her opening brief was filed only two days before
the three-month review hearing scheduled for November 4, 2020,
Mother also argued termination of dependency jurisdiction would
not moot her appeal because the erroneous jurisdiction finding
and disposition order could influence the Department’s decision
to file yet another dependency petition in the future.
As discussed, the juvenile court did terminate jurisdiction
in November 2020 and concurrently issued a juvenile custody
order that modified the prior order awarding Mother sole
physical and legal custody of Rashad. Mother contends in her
reply brief she is adversely affected by this change in the custody
orders, which she asserts is based on the erroneous jurisdiction
finding, thereby justifying appellate review of the merits of her
challenge to that finding.
An order terminating juvenile court jurisdiction generally
renders an appeal from an earlier order moot. (In re C.C. (2009)
172 Cal.App.4th 1481, 1488; see In re I.A. (2011) 201 Cal.App.4th
1484, 1490 [as “‘“a general rule it is not within the function of the
court to act upon or decide a moot question or speculative,
theoretical or abstract question or proposition, or a purely
academic question, or to give an advisory opinion on such a
question or proposition”’”].) “[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; see In re J.P. (2017)
14 Cal.App.5th 616, 623 [a dependency “‘“appeal becomes moot
9
when, through no fault of the respondent, the occurrence of an
event renders it impossible for the appellate court to grant the
appellant effective relief”’”]; In re E.T. (2013) 217 Cal.App.4th
426, 436 [“[a]n appeal may become moot where subsequent
events, including orders by the juvenile court, render it
impossible for the reviewing court to grant effective relief”].)
However, dismissal of a dependency appeal for mootness
following termination of jurisdiction “is not automatic, but ‘must
be decided on a case-by-case basis.’” (In re C.C., supra,
172 Cal.App.4th at p. 1488.) As Mother argues, several court of
appeal decisions have held an appeal from jurisdiction findings is
not mooted by termination of jurisdiction when the sustained
findings prompted a juvenile custody order that has continuing,
adverse effects on the appellant’s custody or visitation rights.
(E.g., In re J.K. (2009) 174 Cal.App.4th 1426, 1431-1432 [appeal
from jurisdiction findings not moot where sustained findings
have an adverse effect on custody or visitation rights]; In re A.R.
(2009) 170 Cal.App.4th 733, 740 [termination of jurisdiction did
not moot appeal where father’s contact with child was “severely
restricted as a direct result of the jurisdictional and dispositional
findings and orders”]; In re Joshua C. (1994) 24 Cal.App.4th
1544, 1547-1548 [father’s appeal not made moot by termination of
jurisdiction where juvenile court awarded sole physical and legal
custody to mother and restricted father’s visitation]; cf. In re
N.S., supra, 245 Cal.App.4th at p. 61 [appeal moot where
jurisdiction findings were not the basis of the custody and
visitation order].)5
5 Other courts have held termination of dependency
jurisdiction does not moot an appeal if the challenged finding
10
We agree an erroneous jurisdiction finding can have
unfavorable consequences extending beyond termination of
dependency jurisdiction and that termination does not
necessarily moot an appeal of such a finding. But to the extent
an appellant argues, as here, that the challenged jurisdiction
finding resulted in an adverse juvenile custody order and seeks to
have that custody order set aside,6 in addition to the appeal from
the jurisdiction finding, an appeal from the orders terminating
jurisdiction and awarding custody is necessary for this court to be
able to provide effective relief. Unless the appellate court
reverses or vacates the order terminating dependency, the
juvenile court has no jurisdiction to conduct further hearings in
could have consequences for the appellant beyond jurisdiction
(e.g., In re Briana V. (2015) 236 Cal.App.4th 297, 309) or if the
purported error “‘“infects the outcome of subsequent
proceedings”’” (e.g., In re E.T., supra, 217 Cal.App.4th at p. 436).
Mother’s original argument that the jurisdiction finding might
influence the Department’s decision to file a new dependency
petition at some point in the future, however, is too speculative to
justify appellate review of an otherwise moot case. (See In re
I.A., supra, 201 Cal.App.4th at p. 1493 [party seeking
discretionary review must identify specific or practical negative
consequences arising from the jurisdiction finding that would
justify such review].)
6 Although Mother specifically asks us only to reverse the
jurisdiction finding and disposition order, as her argument
regarding mootness makes plain, the purpose of the appeal is to
have the juvenile custody order set aside. Without more, reversal
of the jurisdiction finding, which accurately stated Mother has an
extended history of drug abuse, accomplishes nothing of
substance for her.
11
the now-closed case, including modification of its custody order.
(See § 304 [juvenile court has exclusive jurisdiction to hear
proceedings regarding custody “until the time that the petition is
dismissed or dependency is terminated”]; Cal. Rules of Court,
rule 5.620(a) [same].) Because Mother did not appeal those
orders, they are not now before us or otherwise subject to
appellate review. And because the juvenile court terminated its
jurisdiction over Rashad and that termination is final, a remand
for further proceedings in the juvenile court would be
meaningless. (See In re Michelle M. (1992) 8 Cal.App.4th 326,
330 [dismissing father’s appeal from jurisdiction findings and
disposition orders, concluding there was no effective relief that
could be granted because “the juvenile court no longer has
jurisdiction and we are only reviewing that court’s ruling,” as
opposed to the subsequent ruling dismissing jurisdiction and
transferring the matter to the superior court; “[a]ppellant’s
remedy was to attack the juvenile court’s order terminating
jurisdiction in order to raise the issues he urges before us”]; see
also In re J.S. (2011) 199 Cal.App.4th 1291, 1295 [challenge to
denial of motion to dismiss dependency proceedings leading to
adverse custody and visitation order not mooted by subsequent
termination of jurisdiction; “[t]he exit orders are also pending
appeal, and include adverse custody and visitation orders, which
were entered as a direct result of matters challenged in this
appeal”].)7
7 Mother is not left entirely without a remedy. Pursuant to
Welfare and Institutions Code section 302, subdivision (d), she
may seek modification of that order in a proceeding under Family
Code section 3021 if she can demonstrate “there has been a
12
Our colleagues in Division Eight of this court in In re J.P.,
supra, 14 Cal.App.5th 616 recognized the significance of
reviewing the termination order in these circumstances. The
court declined to dismiss a father’s challenge to the adequacy of
his reunification plan as moot following termination of
dependency jurisdiction because his failure to reunify had led to
the loss of custody and restricted visitation rights. (Id. at p. 623.)
After holding the juvenile court had abused its discretion in
failing to order effective reunification services for the father, the
J.P. court reversed the portion of the disposition order requiring
the father to participate in a full alcohol treatment program and
remanded the matter to the juvenile court to reconsider its order
terminating jurisdiction, explaining, “We do not direct that the
trial court necessarily unravel its subsequent termination of
jurisdiction, but simply leave it to the trial court to determine the
appropriate remedy given its erroneous disposition order. But
the trial court must at least reconsider its termination order in
light of the views we have expressed.” (Id. at p. 630; see id. at
pp. 630-631 [“[t]he matter is remanded to the dependency court to
reconsider its order terminating jurisdiction and for further
proceedings consistent with this opinion”].) However, the father
had not appealed the order terminating jurisdiction; and the
court of appeal did not address its authority, absent such an
appeal, to direct the juvenile court to reconsider that order or to
conduct further proceedings in the now-closed dependency case.
significant change of circumstances since the juvenile court
issued the order and modification of the order is in the best
interests of the child.”
13
Contrary to our holding today and that of the court in
In re Michelle M., supra, 8 Cal.App.4th 326, the court of appeal in
In re Joshua C., supra, 24 Cal.App.4th 1544 expressly held
appeal of the order dismissing the juvenile court proceedings is
not required to permit continued appellate review of the
jurisdiction findings upon which an adverse juvenile custody
order at termination was based. (Id. at p. 1549.) Unlike the case
at bar, however, the juvenile court had issued its custody order
and terminated jurisdiction at the disposition hearing. (Id. at
p. 1547.) Although the father directly challenged only the
adverse jurisdiction finding on appeal, it appears he appealed
from the orders made at the disposition hearing, which arguably
would have permitted the appellate court to reverse the order
terminating dependency jurisdiction if necessary to provide the
relief he requested. In any event, because it affirmed the juvenile
court’s findings after declining to dismiss the appeal as moot (id.
at p. 1549), the Joshua C. court did not need to address how it
could grant effective relief with the juvenile case closed if the
termination order was not before it. Similarly in In re J.K.,
supra, 174 Cal.App.4th 1426, the juvenile court issued its custody
order and terminated jurisdiction at the disposition hearing.
(Id. at p. 1431.) Although this court found the appeal was not
moot, we affirmed the jurisdiction findings and disposition order
and did not reach the question of constructing an effective
remedy. (See id. at p. 1440.)
Our conclusion as to the need for Mother to have appealed
the orders terminating dependency jurisdiction and awarding
joint legal custody to Deon and her is not altered by the fact she
argues, in effect, the juvenile court lacked jurisdiction to make
the new custody order because there was insufficient evidence
14
she had placed Rashad at substantial risk of serious physical
harm. As the Supreme Court has explained, “[J]urisdictional
errors are of two types. ‘Lack of jurisdiction in its most
fundamental or strict sense means an entire absence of power to
hear or determine the case, an absence of authority over the
subject matter or the parties.’” (People v. American Contractors
Indemnity Co. (2004) 33 Cal.4th 653, 660.) However, the term
“lack of jurisdiction” may also be applied when the court
possesses jurisdiction over the subject matter and parties in the
fundamental sense but “‘has no “jurisdiction” (or power) to act
except in a particular manner, or to give certain kinds of relief, or
to act without the occurrence of certain procedural
prerequisites.’” (Id. at p. 661.) “When a court lacks jurisdiction
in a fundamental sense, an ensuing judgment is void, and ‘thus
vulnerable to direct or collateral attack at any time.’” (Id. at
p. 660.) By contrast, when a court has fundamental jurisdiction
to act but acts in excess of jurisdiction, its actions are
merely voidable, “[t]hat is, its act or judgment is valid until it is
set aside, and a party may be precluded from setting it aside by
‘principles of estoppel, disfavor of collateral attack or
res judicata.’” (Id. at p. 661.) While a lack of fundamental
jurisdiction may be raised at any time, a challenge to a ruling in
excess of jurisdiction is subject to forfeiture if not timely asserted.
(People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 716,
fn. 7; People v. Mower (2002) 28 Cal.4th 457, 474, fn. 6.)
Here, the juvenile court had jurisdiction in a fundamental
sense—authority over the subject matter and the parties. Any
orders made following an erroneous finding to sustain the
section 300 petition were, at most, acts in excess of jurisdiction.
(See In re Angel S. (2007) 156 Cal.App.4th 1202, 1209 [when a
15
court with fundamental jurisdiction over the persons and subject
matter in question acts contrary to a statutory procedure or
applicable rules, it does not act without jurisdiction, but rather in
excess of jurisdiction; “[a]cts in excess of jurisdiction are not void
in any fundamental sense””].)8 Accordingly, by not appealing the
November 4 and 10, 2020 orders terminating dependency
jurisdiction, and awarding joint legal custody to Deon and
expanding his monitored visitation with Rashad, Mother forfeited
any challenge to those rulings, including to the juvenile court’s
jurisdiction to issue them. Absent that additional appeal, we
cannot provide Mother effective relief.
DISPOSITION
The appeal is dismissed.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
8 In In re Cristian I. (2014) 224 Cal.App.4th 1088, in
contrast, the mother argued the juvenile court’s jurisdiction
findings and disposition order placing her severely abused son
with his father were void because the Arizona courts had
exclusive jurisdiction over custody matters under the Uniform
Child Custody Jurisdiction and Enforcement Act and the
Los Angeles juvenile court lacked fundamental jurisdiction to
make anything other than an initial, temporary emergency order.
(Id. at p. 1092.) Accordingly, we held, although the mother had
not appealed the juvenile court’s subsequent order terminating
dependency jurisdiction, her appeal of the jurisdiction findings
and disposition order was not moot. (Id. at p. 1096, fn. 6.)
16