Filed 7/12/23 In re Mason C. CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re MASON C. et al., Persons

Coming Under the Juvenil e
Court Law. B318507

(Los Angeles County

Super. Ct. No.

21CCJP03450A

- C)

LOS ANGELES COUNTY

DEPARTMENT OF CHILDREN

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

DARLENE C.,

Defendant and Appellant.

APPEAL S from orde rs of the Superior Court of Los Angeles

County, Martha Matthews and Nancy Ramirez, Judges.

Dismissed as moot.2 David M. Thompson, under appointment by the Court of

Appeal, for Defendant and Appellant.

Dawyn R. Harrison, County Counsel, Kim Nemoy,

Assist ant County Counsel and Tracey Dodds, Principal Deputy

Counsel, for Plaintiff and Respondent.

_______________________________ The juvenile court in February 2022 declared then

- 1 0

- year

old Mason C., two

- year

- old Mariah A. and seven

- month

- old

Marisol G. depe ndent child ren of the court after sustaining

allegations pursuant to Welfare and Institutions Code former

section 300, subdivision (b)(1)

, 1 that Marisol had a positive

1 Senate Bill No. 1085 (2021

- 2022 Reg. Sess.) (Stats. 2022,
ch. 832, § 1), effective January 1, 2023, amended Welfare and
Institutions Code section 300, in part, by rewriting

subdivis ion (b)(1), to now provide in separate subparagraphs that
a child comes within the jurisdiction of the juvenile court if

“ (1) The child has suffered, or there is a substantial risk that the

child will suffer, serious physical harm or illness, as a result o f

any of the following: [¶] (A) The failure or inability of the child’s

parent or guardian to adequately supervise or protect the child.
[¶] (B) The willful or negligent failure of the child’s parent or guardian to adequately supervise or protect the child from the

conduct of the custodian with whom the child has been left. [¶] (C) The willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical

treatment. [¶] (D) The inability of the parent o r guardian to provide regular care for the child due to the parent’s or guardian’s mental illness, developmental disability, or substance

abuse. ”

New section 300, subdivision (b)(2)

, provides, “ (2) A child

shall not be found to be a person described by this subdivision
solely due to any of the following: [¶] (A) Homelessness or the3

toxicology screen for amphetamine at birth; the children’s

mother, Darlene C., was a rec ent user of amphetamine , which

interfered with her ability to provide the children with

appropriate care and supervision; Darlene’s male companion

Marco G. ( Mariah and Marisol’s presumed father ) had a history

of illicit drug use that endangered the childre n’s safety; and

Darlene , knowing of Marco’s serious drug problem, failed to

protect the children by allowing Marco to reside in the children’s

home and to have unlimited access to the children

. The children

remained released to Darlene under the supervisi on of the

Los Angeles County Department of Children and Family

Services.

Darlene appealed, challenging only the jurisdiction findings

concerning the danger to the children from her use of

amphetamine shortly before Marisol was born. While her appeal

was pending, the court terminated dependency jurisdiction with

juvenile court custody order s grant ing Darlene joint physical and

legal custody of Mason (with his nonoffending presumed father,

Rafael C.) and sole physical custody of Mariah and Marisol . We

dism iss Darlene’s appeal as moot.

lack of an emergency shelter for the family. [¶] (B) The failure of

the child’s parent or alleged parent to seek court orders for
custody of the child. [¶] (C) Indigence or ot her conditions of

financial difficulty, including, but not limited to, poverty, the
inability to provide or obtain clothing, home or property repair, or childcare. ”

All statutory references are to the Welfare and Institutions

Code.4 FACTUAL AND PROCEDURAL BACKGROUND

In late June 2021 the Department received a referral

stating Darlene and her newborn child had tested positive for

amphetamine. Darlene denied knowingly consuming

amphetamine, claiming she ha d been given what she believed

was a n over

- the

- counter pain pill by a friend two days before the

birth when she was experiencing contractions . She insisted she

had no current or past history with drugs and agreed to drug test

if necessary

. Darlene acknow ledged she had not had any in

person prenatal care, explaining she only had “scattered”

telehealth appointments due to COVID

- 19 protocols

. The Department filed a non

- detain petition on behalf of the

children on July 26, 2021 pursuant to former section 30 0,

subdivision (b)(1) (failure to protect)

. At the detention hearing

the juvenile court found a prima facie case existed that the

children were minors described by section 300 but allowed the ir

continued release to their parents (Mason to Darlene and Rafa el;

Mariah and Marisol to Darlene and Marco).

On December 1, 2021 the Department filed a section 385

petition to remove Mariah and Marisol from Marco’s custody

based on Marco’ s positive tests for marijuana and

methamphetamine. The juvenile court issued a removal order on

December 6, 2021. At approximately the same time Darlene

moved with all three children from the family residence to her

parent s ’ home.

The jurisdiction hearing took place over several days in

December 2021 and January and February 2022. Marco pleaded

no contest to an amended petition alleg ing , in part, that he had a

history of illicit drug use and had a positive test for

methamphetamine on November 16, 2021 while the dependency5

case was pending. D arlene and two Department social worker s

testified. The evidence before the court indicated Darlene was in

full compliance with services, including participation in alcohol

and drug education and relapse prevention classes and negative

tests for drugs. The social workers found Darlene’s care created

no child safety issues.

On February 8, 2022 t he court sustained the petition’s

allegation pursuant to former section 300, subdivision (b)(1), that

Marisol was born suffering from a detrimental condition

consisting of a positive toxicology screen for amphetamine, which

placed the child at risk of serious physical harm. After changing

“current” to “recent,” the court also sustained the allegation that

Darlene was a recent user of amphetamine, which rendered her

incapable of providing regular care f or Marisol and interfered

with her ability to provide appropriate care and supervision for

all three children. Finally, in addition to its finding s that Marco

had a history of illicit drug use and had recently tested positive

for methamphetamine, the cour t sustained the allegation that

Darlene had failed to protect the children by allowing Marco to

reside in the children’s home and have unlimited access to them.

Explaining its ruling on the first count, the court stated it

did not find credible Darlene’s explanation why she and her

newborn child had tested positive for amphetamine . The court

also expressed its concern that Darlene went for at least five

months after she knew she was pregnant without seeing a doctor

, which created a clear health risk to t he child. 2

2 The court acknowledg ed that Marisol was a healthy baby.

“ But ,” the court observed, “ the reason people get prenatal care is to make sure everything is all right.”6 With respect to the second count, the court commended

Darlene for the positive steps she had been taking, “even though

she’s still sort of fighting the factual allegations in th is case
, ”

referring to her vehement denial of knowingly taking ill egal

drugs during her pregnancy.

The court declared the children dependents of the court,

allowed them to remain in Darlene’s care under the supervision

of the Department and ordered family maintenance services for

Darlene and enhancement services for Ma rco. The court, again

agreeing that Darlene was doing well, scheduled a section 364

review hearing in three months.

In its report for the review hearing the Department stated

Darlene had fully cooperated and was in complete compliance

with court

- ordered programs and services, including an

outpatient drug treatment program with aftercare, weekly

therapy sessions and negative drug tests. At the review hearing

on May 10, 2022 the court, in accord with the Department’s

recommendations, terminated its jurisdi ction and several days

later signed juvenile custody orders granting Darlene and Rafael

joint physical and legal custody of Mason and Darlene sole

physical custody and Darlene and Marco joint legal custody of

Mariah and Marisol.

Darlene filed timely notic es of appeal from the February 8,

2022 jurisdiction findings and disposition orders and the May 10

and May 13, 202 2 orders terminating jurisdiction and juvenile

custody orders. We ordered the two appeals consolidated.

In her opening brief, although conced ing Marisol had tested

positive for amphetamine at birth, Darlene argued there was

insufficient evidence to support the juvenile court’s finding the

child was born with any condition that placed her at risk of7

serious physical harm. Similarly, Darlene arg ued substantial

evidence did not support the finding that her recent use of

amphetamine

— a single, one

- time use (whether intentional or

inadvertent)

— created an ongoing risk to the children’s physical

health and safety. Darlene did not challenge the court’s

additional jurisdiction findings regarding Marco’s substance

abuse and Darlene’s failure to protect the children from Marco.

Nor did she argue the court erred in terminating jurisdiction on
May 10, 2022 or entering the May 13, 2022 custody orders.

DISC USSION

1. In re D.P.: Moot Dependency Appeals and Our

Discretion To Decide Them

The Supreme Court in In re D.P

. (2023) 14 Cal.5th 266

explained the mootness doctrine and confirmed it applied to

dependency appeals: “ A court is tasked with the duty ‘“ to d ecide

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. ”’ [Ci tation.] A

case becomes moot when events ‘“ render[] it impossible for [a]

court, if it should decide the case in favor of plaintiff, to grant

him any effect[ive] relief. ”’ [Citation.] F or relief to be ‘ effective, ’

two requirements must be met. First, t he plaintiff must

complain of an ongoing harm. Second, the harm must be

redressable or capable of being rectified by the outcome the

plaintiff seeks. ” ( Id. at p. 276.)

In In re D.P. , the juvenile court had terminated its

jurisdiction without issuing any order that continued to impact

the parents. ( In re D.P.

, supra , 14 Cal.5th at p. 277.) In that

context, the Court held, “ relief is effective when it ‘ can have a8

practical, tangible impact on the parties ’ conduct or legal status. ’

[Citation.] I t 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, c omplaining of ‘ stigma ’ alone is insufficient to

sustain an appeal. The stigma must be paired with some effect

on the plaintiff

’ s legal status that is capable of being redressed by

a favorable court decision. ” ( Ibid. ) The Court gave as examples

of nonmoo t challenges to jurisdiction findings cases in which a
jurisdiction finding affected parental custody rights, curtailed a parent’s contact with his or her child or resulted in disposition

orders that continued to adversely affect a parent. ( Id. at

pp. 277

- 278.) The Court expressly held, disapproving contrary

case law, that “speculative future harm” is not sufficient to avoid

mootness. ( Id. at p. 278.) 3

Despite its reaffirmation of the applicability of the

mootness doctrine to dependency appeals, the Sup reme Court

3 Specifically addressing the appellant father’s argument
that the challenged jurisdiction finding of neglect c ould result in his inclusion in California’s Child Abuse Central Index ( CACI )
(Pen. Code, § 11170), which carries several legal consequences,
the Supreme Court noted that, when a child protective agency
forwards a substantiated report of abuse or neglect t o the
California Department of Justice for inclusion in CACI, it must
provide written notice to the person whose conduct was reported.
( In re D.P.

, supra , 14 Cal.5th at p. 279.) Absent evidence in the
record that any such report had been submitted or a s howing that the type of neglect allegation at issue in the case (“general neglect,” rather than “severe neglect”) was even reportable, the
Court held, “Father’s CACI claim is too speculative to survive a
mootness challenge.” ( Id. at p. 280.)9

emphasized that, e ven when a case is moot, courts may exercise

their “inherent discretion” to reach the merits of the dispute.

( In re D.P.

, supra , 14 Cal.5th at p. 282.) That discretion, the

Court explained, is generally exercised only when th e 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

determinatio n. ( Ibid .)

Nevertheless, because features of dependency proceedings

tend to make appeals prone to mootness problems, the Court,

without intending to be exhaustive, identified several additional

factors for the courts of appeal to evaluate when deciding

whether discretionary review of a moot case may be warranted

outside of those instances. ( I n re D.P.

, supra , 14 Cal.5th at

pp. 284

- 286.) First, a court may analyze whether the challenged

jurisdiction finding could potentially impact the current or future

dependency proceedings , for example, by influe ncing the child

protective agency’s decision to file a new dependency petition or

the juvenile court’s determination about further reunification

services. ( Id. at p. 285.) Second, a court may take into account

the nature of the allegations against the pa rent: “ The more

egregious the findings against the parent, the greater the

parent ’ s interest in challenging such findings

. ” ( Id. at p. 286.)

Third, a court may consider whether the case became moot due to

prompt compliance by the parents with their case plan : “It would

perversely incentivize noncompliance if mootness doctrine

resulted in the availability of appeals from jurisdictional findings

only for parents who are less compliant or for whom the court has

issued additional orders. ” ( Ibid .)10 2. Discr etionary Review of T his Moot Appeal Is Not

Warranted

Emphasizing that the dependency case was terminated

with orders granting Darlene custody of her children and, as a

consequence, Darlene is no longer under the supervision of the

Department, the Departmen t has request ed we dismiss Darlene’s

appeal as moot. Anticipating that request, in her opening brief

Darlene urge s us to review the merits of her challenge to the

findings relating to her substance abuse (but not to her failure to

protect the children fro m exposure to Marco and his drug use)

because she could suffer prejudice in future dependency or family

law proceedings from the juvenile court’s incorrect findings.

Because we can provide no effective relief to Darlene

— that

is, relief that “‘can have a practical, tangible impact on the

parties’ conduct or legal status’” ( In re D.P.

, supra
, 1 4 Cal.5th at

p. 277 )

— her appeal is moot. And after considering the factors

identified in In re D.P.

, we decline to exercise our discretion to

consider a moot appeal.

In an argument devoid of specificity, Darlene contends the

juvenile court’s incorrect jurisdiction findings and order could

prejudice her in future dependency or family law proceedings.

She also asserts our failure to review the merits of her appeal

will encourage the Department to pursue jurisdiction in similar

meritless cases. As discussed, however, the Supreme Court held

the type of speculative future harm posited by Darlene is

insufficient to avoid mootness. ( I n re D.P.

, supra , 1 4 Cal.5th at

p. 278. ) And unlike In re J.S. (2020) 47 Cal.App.5th 103 6

, upon

which Darlene relies and where the court of appeal reached the

merits of an arguably moot case to address the broad and largely

unresolved question when use of marijuana bec omes substance11

abuse ( id. at p. 1046), whether Darlene’s intentional use of

amphetamine during the final days of her pregnancy created a

substantial risk of harm to her child does not present an issue of

broad public interest. (See In re Rashad D. (2021) 63 Cal.App.5th

156, 159 [ fact

- specific question whether the mother ’ s current

circumstances created a substantial risk of serious physical harm

to her young son is the type of issue presented to appellate courts

multiple times every year] ; In re M.C. (2011) 199 Cal.App.4th

784, 802 [ same].)

No other factor justifies reaching the merits of this moot

appeal. (See In re D.P.

, supra , 14 Cal.5th at p. 286 [“ no single

factor is necessarily dispositive of whether a court should exercise

discretionary review of a moot appea l”].) 4 In light of the

necessary concession by Darlene that Marisol tested positive for

amphetamine at birth, the additional findings concerning the

impact of Darlene’s use of an illicit drug on her ability to care for

her children are not particularly egregious. Moreov er, in any

future dependency or family law proceeding, Darlene will be able

to demonstrate the court in this case never detained the children

from her, complimented her on her positive efforts to deal with

any substance abuse issues and terminated its juri sdiction with

orders granting Darlene custody of her children not long after

assuming jurisdiction over them. Exercise of our discretionary

authority to consider the merits of Darlene’s moot appeal is not

warranted.

4 Under the facts of this case, there is no reason to believe

the decision not to exercise our discretion to review Darlene’s
moot appeal will disincentivize prompt compliance with juvenile

court orders in future cases.12 DISPOSITION

The appeal is dismissed as moot.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.