Filed 6/1/23 In re Luke S. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re LUKE S., a Person Comi ng

Under the Juvenile Court Law. B311414

(Los Angeles County

Super. Ct. No.

2 0 CCJP00148A)

LOS ANGELES COUNTY

DEPARTMENT OF CHILDREN

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

MAGDALENA S.,

Defendant and Appellant. SECOND ORDER

MODIFYING

OPINION

(No change in the

appellate judgment)

THE COURT:

It is ordered that the opinion filed herein on May 3 0 , 2023

is modified as follows:2 On page 1, the Los Angeles Superior Court case number,

which appears as 21CCJP00148A, is changed to

20CCJP00148A.

The modification order filed on May 31, 2023 is vacated.

This order does not change the appellate judgment.

____________________________________________________________ PERLUSS, P. J. SEGAL, J. FEUER, J.Filed 5/31/23 In re Luke S. CA2/7 (first modification)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions

not certified for publication or ordered published, except as specifi ed by rule 8.1115(b). This opinion

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re LUKE S., a Person Coming

Under the Juveni le Court Law. B311414

(Los Angeles County

Super. Ct. No.

2 0 CCJP00148A)

LOS ANGELES COUNTY

DEPARTMENT OF CHILDREN

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

MAGDALENA S.,

Defendant and Appellant. ORDER MODIFYING

OPINION

(No change in the

appellate judgment)

THE COURT:

It is ordered that the opinion filed herein on May 30, 2023

is modified as follows:

On page 1, the Los Angeles Superior Court case number,

which appears a s 21CCJP00148A, is changed to

20CCJP001481A.2 This order does not change the appellate judgment.

____________________________________________________________ PERLUSS, P. J. SEGAL, J. FEUER, J.Filed 5/30/23 In r e Luke S. CA2/7 (unmodified opinion)

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions

not certified for pub li cation or ordered published, except as spec ified by rule 8.1115(b) . This opinio n

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF AP PEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVI SI ON SEVEN

In re LU KE S. , a Person Coming

U nder the Juvenile Court Law. B 3 11414

(Los Angeles County

Super. Ct. No.

21CCJP 0 0148A

)

LOS ANGELES COUNTY

DEPARTMENT OF CHILDREN

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

M AG DALENA S.

,

Defendant and Appella nt.

AP PEAL from an order of t he Superior Co urt of

Los Angeles County, Stephen C. Marpet, Juvenile Court Referee.

Dismissed as moot.2 Roni Keller, under appointment by the Cour t of Appe a l for

Def endant and Appellant.

R o drigo A. Castr o

- Silva and Dawyn R. Harriso n , County

Counsel, Kim Ne moy , Assista nt County Counsel, and Sally Son,

Deputy County Counsel, for Plaintiff and Respondent.

_________________________ Magdalena S., the mother of then 14

- year

- old Luke S.,

appeal ed the juvenile court ’ s jurisdic tion find ings and disposition

order declaring Luke a de pendent child of the court and releasing

him to Magdalena under the super vision of the Los Angeles

County Departme nt of Children and Family Services. While

Magdalena ’ s ap peal was pending , the juvenile court termin ated

its jurisdiction a nd issued a ju venil e court custody order granting

Magdalena sole legal and physical custody of Luke

. At the

request of the Departmen t , we dismiss ed the appeal as moot.

The Supreme Court g ra nted Magdalena ’ s petition for

review and su bsequently transferred the matter to us wi th

directions to vacate our prior order and reconsider the cause in

light of In re D.P. (2023) 14 Cal.5th 266. ( I n re Luke S. (Apr

. 19,

2023, S273262.) We have done so

. Because we can provide no

effective relie f to Mag dalena

— that is, relief that “‘ can h ave a

practical, tangible impact on t he parties’ conduct or legal status ’”

( In re D.P.

, at p. 277 )

— her appeal is moot. A nd a fter considering

the factors identified in I n re D.P.

, we decline to exercise our

discret ion to consider a moot appeal.

FACT UAL A ND PROCEDURAL BACKGROUND

The juvenile court on August 21, 2020 sustained an

amended petition pursuant to Welfare and Institutions Code

section 300, subdivisions (a) ( ser io us physical harm inflicted

nonaccidentally) and (b)(1) (failure to protect), all eging Luke was3

at substantial risk of serious physical harm based on

Magda lena’s physical abuse of her wife’s two chi ldren and

emotional abuse of one of those children

. 1 A t th e disposition

hearing o n March 16, 2021 the court de clared Luke a dependent

chil d of the court, releas ed him to Magdalena under the

supervision of the Department and ordered family maintenance

serv ices for Magdalena, including parenting classes and conjo in t

counseling.

Magdalena appealed the jurisd iction findings and

dis position order

. I n her opening brief filed Octob er 8, 2021

Magdalena argued the juvenile court’s jurisdiction findings were

not su ppo rted by substantial evidence and its disposition order

c onstituted an abuse of discretion. Explain ing that Earle S., who

was found to b e Luk e’s presumed father, had reported he had

Choctaw ancestry and was a registered member of the tribe,

Magdalena al so argued the Department’s notices to the Choctaw

tribes ha d numerous errors and omissions and, accord ingly, the

juvenile cou rt had erred b y pre maturely finding there was no

reason to know Luke was an Indian child within the meaning of

the Indian Child Wel far e Act of 1978 (ICWA) (25 U.S.C.

§ 1901 et seq.).

At a re view hearing held the same day as Mag d a lena filed

her opening appe llate brief , t he ju venile court terminated its

jurisdiction and issued a juvenile court custody order granting

Magdalena sole legal and physical custody of Luke with

monitored visit ation f or Earle. Magdalena did not appeal the

Octob er 8, 2021 orders

.

1 The origi nal d epende ncy petition was filed in early January

2020.4 O n D ecember 20, 20 21 th e Department moved to dismiss

Magdalena’s appeal as moot in light of the orders terminating

dependency jurisdict ion and awarding Magdalena s ole legal and

physical custod y of Luke. T he Department argued , under the

circumstances, this cou rt could no t p rovid e Magdalena any

effective relief.

On December 27, 2021 Magdalena filed an opposition to the

motion to dismiss, contending the stigma and potential collateral

consequen ce s of adverse jurisdictional findings

, which she argue d

“forever fa lsely besmir ch a pa rent’s reputation

, ” create d a

justiciable controversy notwithstanding the termination of

dependency jurisdiction

. Her opposition d id not address the fact

the dispositio n orders were no longer in effect or that, be cause

Luke ha d been ret urne d to Magda lena and dependency

jurisdiction terminated, any error in a premature ICWA finding

was of no significance.

Neither Ma g dalena nor the Department filed a

supplemental brief , as p ermitted by California Rules of Court,

rule 8.200(b), following th e Supreme Cour t ’ s t ransfer of the case

to us for reconsideration in light of In re D.P.

, supra , 14 Cal.5th

266.

DISCUSSION

1. In r e D.P.: Moot Dependency Appeals and Our

Discretion To De ci de Them

The Supreme Court in In re D.P.

, su pra , 14 Cal.5th 266

exp lained the moo tness doctrine and confirmed it applie d to

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

actual c ontroversies by a judgment which can be carried into

effe ct , and not to give opinions upon moot questi ons or abstract

proposi tions, or to d eclar e principles or rules of law which cannot5

affect the matter in issue in the case before it. ”’ [Citation.] A

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

court, if it should decide the case in fa vor of plaintiff, to gr ant

him any ef

fect[ ive] relief. ”’ [Citation.] F or relief to be ‘ effective, ’

two requirements must be met. First, the plaintiff m ust

complain of an ongoing harm. Second, the harm must b e

redressable or capable of being rectified b y the o utcome the

plain tiff seeks. ” ( Id. at p. 276.)

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

jurisdiction without issuing any order that con tinued to impact

the parents. ( In re D.P.

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

context, the Court held, “ relief is effect ive when it ‘ c an ha ve a

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 de mo nstrate that he or she has suffered from

a change in legal status. Although a j urisd ictional 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 s tigma must be paired with some effect

on th e plaintiff

’ s legal sta tus that is ca pable of being redressed by

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

of nonmoot challenges t o jurisd iction findings cases in which a

jurisdiction fin di ng affect ed parental custody rights, curtai l ed a

parent’s contact with his or he r chi ld or resulted in disposition

orders that continue d to adversely affect a parent. ( Id. at

pp. 277

- 278.) The C o urt expr essly held, disapproving contrary

case law, that “ s peculative future harm ” is not sufficient t o avoid

mootness. ( Id. at p. 278.) 2

2 Specifically a dd ressing the appe llant father’s argument

that the challenged jurisdiction finding of neglect could result in6 Desp ite its reaffirmation of the applicability of the

mootness doctrine to dependency appeals, the Supreme Court

emp hasized that, e ven when a case is moot, courts may exerci se

their “inherent discretion” to reach the m erits of the dispute.

( In re D.P.

, s upra

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

Court explained, is generally exercise d only when the case

pres ent s an issue of broad public interest that is likely to rec ur

, when there may be a recurrence of the con troversy between the

pa rties or when a mat erial question remains for the court ’ s

determinatio n. ( Ibid .)

Nevertheless, because features of dependency pr oce edings

tend to make appeals prone to moot ness problems

, the Court

, without intending to be exhausti ve, identified several additional

fac tors f or the courts of appeal to evaluate when deciding

whether discretionary review of a moot case may be warranted

o utside of those instances. ( I n re D.P.

, supra , 14 Cal. 5 th at

pp. 28 4

- 286.) First, a court may analy ze whether the challeng ed

jurisdictio n find ing could potentially impact the current or future

dependency proceedings , for example, by influencing the child

his inclusion in California ’ s Child Abuse Central Index ( CACI )

(Pen. Cod e, § 11170) , which carr ies several le gal consequences

, the Supreme Court not ed that, when a child protecti ve agency

forwards a substantiated report of abuse or neglect to the

California Department of Justice for i nclusion in CACI, it must

provide written n otice to th e person who se conduct was reported.

( In re D.P.

, supra , 14 Cal.5th at p. 279.) Absent evidence in the

re cord that any such report had been submitted or a showing that

the type of neglect allegation a t issue in the case (“general

neglect,” rat her t han “s evere neglec t”) was even r eportable, the

Court held, “Father’ s CACI claim is too speculative to survive a

mootness challenge.” ( Id. at p. 280.)7

protective agency’s decision to file a new dependency p et ition or

the juvenile court’s determination about furt her reunific ation

services . ( I

d

. a t p. 285.) Second, a court may take into account

the nature of the allegations against the parent: “ The mor e

egregious the findings against the parent, the greater t he

parent ’ s interest in challenging such fi ndings

. ” ( Id. at p. 28 6.)

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

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

p erversely incentivize noncompliance if mootness doctrine

r esulted in the availability of appeals from jurisdictional finding s

only fo r par ents w ho are less compliant or for whom the court has

issued additional orders. ” ( Ibid .)

2

. Discretionary Review of T his Moot Appeal Is Not

Warranted

As discussed, when opp os ing the Department ’ s motion to

dismiss the appeal, Magdalena focus ed prim arily o n the stigma

she asserted accompan ied the juvenile court ’ s juri s dic t ion

findings

— a factor the Supreme Court held was i nsufficient to

sustain an ap peal. ( In re D.P.

, supra , 1 4 Cal.5th at p. 277. )

Mag dalena also general ly described several po tential ly nega tive

c onsequences that might flow from adverse jurisdiction findings

, the ty pe of speculative future harm the Court al so hel d w as

insufficient to avoid mootness. ( Id. at p. 27 8.)

Exe rcise of our discretionary authori ty to consider the

meri ts of Magdalen a ’ s m o ot appeal is not warranted

. Although

the misconduct in this case involved the nonaccidental infliction

of physi cal harm (Welf. & Inst. Code, § 300, subd. (a)) , not onl y a

failure to protect ( § 300, subd. (b)), th e findings involving

Ma gdalena were n ot egr egious ; and Mag d a l e na will be able to

explain in any future dependency or family law proceedings that8

the juvenile court release d Luke to her care at th e disposition

he ar ing

, reflec t ing the judgment that Mag d a l ena did not pose a

continu ing risk to he r child

.

N o 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 w he ther a court should exercise

discretionary revie w of a moot appea l ”]. ) Nearly t wo years

elap sed between the filing of the original petition and the court ’ s

order ter minating jurisdiction. This was not a case that became

moot because of the parent ’ s pro mp t compliance wi th a case plan.

Nor does Ma gdale na ’ s f act

- specific appeal presen t an issue of

broad public interest. (See In re Rashad D. (202 1) 63 Cal.App.5th

156, 1 59 [ fact

- specific question whether the mother ’ s current

circumstances created a substan ti al risk of serious physical harm

to her you ng so n is t he type of i ssue presented to appellate courts

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

784, 802 [ same].)

D ISPOSITION

The appeal is dismissed as mo o t.

PERLUSS, P. J.

We co nc ur:

SEGAL , J.

FEUER, J

.