Case of the Month Archive

Court of Appeal erred in determining that it lacked discretion to review appeal despite its mootness. . .

In a reversal, the California Supreme Court held the Court of Appeal erred by concluding that in the context of dependency proceedings, discretionary review is appropriate only when the parent has demonstrated specific legal or practical negative consequences that will result from the jurisdictional findings they seek to reverse; instead, reviewing courts 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 broad principles and nonexhaustive factors.

On February 5, 2019, mother and father brought their two-month-old son (D.P.) to the hospital because he was having trouble breathing. A chest X-ray showed that D.P. had a single healing fractured rib. A nurse practitioner who treated D.P. and performed a skeletal survey found no other injuries to D.P. However, since D.P.'s parents could not explain how the injury occurred, hospital staff notified the Los Angeles County Department of Children and Family Services (DCFS) that D.P. was the victim of physical abuse and that his five-year-old sister may be at risk.

The parents lived with D.P., his sister, and the maternal grandparents. The family had no prior child welfare history or criminal history. A social worker interviewed D.P.'s sister who stated she felt happy and safe at home. The parents were cooperative and participated in pre-disposition services, including parenting classes and individual counseling. Despite this, DCFS filed a petition alleging D.P. was the subject of "'deliberate, unreasonable, and neglectful acts'" at the hands of his parents.

At the jurisdictional hearing, DCFS presented testimony from Dr. Karen Imagawa, an expert in forensics and suspected child abuse. Dr. Imagawa stated that the type of rib fracture D.P. had is uncommon in healthy infants and has a "'high degree of specificity for non-accidental/inflicted trauma.'" Meanwhile, parents presented testimony from Dr. Thomas Grogan, a pediatric orthopedic surgeon and expert in child abuse forensics. Dr. Grogan explained that the rib fracture that D.P. suffered is typically caused by compressive force and that if a fist or other object had been used to strike D.P., then D.P. likely would have had multiple broken ribs as well as some external marks or bruising, neither of which he had. Both experts agreed that without bruising, a caregiver would have no way of knowing D.P. had a broken rib.

At the conclusion of the jurisdictional hearing, the juvenile court dismissed the allegations relating to D.P.'s sister, noting that they were not supported by sufficient evidence. With regard to D.P., the juvenile court sustained a modified version of DCFS's allegations. The juvenile court concluded that D.P.'s injury was of the sort that would generally not occur without some neglect or harm to D.P. and, thus, found a prima facie case under W&;I C §355.1 [evidence that child sustained injury or detrimental condition from parent's acts or omissions is prima facie evidence that child needs court protection]. The juvenile court struck the words "'deliberate'" and "'unreasonable'" from the sustained allegations, explaining "'What I have is an unanswered explanation as to how this fracture occur[red] …, but I don't lay [it] at the parents' feet because I don't think they affirmatively through a deliberate act or some act on their part or omission on their part caused the injury. And it may, in fact, be that while the child is in the care of the maternal grandmother or some other event occurred that was outside of their view that a compressive force was applied.'" The juvenile court nevertheless found that D.P.'s injury "'would ordinarily not occur [except] as the result[] of neglectful acts by the child's mother and father.'" Finding jurisdiction over D.P., the juvenile court (Los Angeles County's Barnes) ordered D.P. to remain with the parents under DCFS's informal supervision for six months.

Juvenile court terminated jurisdiction before completion of the appeal. . .
Parents appealed the juvenile court's jurisdictional finding, arguing that the elements of failure to protect and causation had not been established and that no substantial evidence supported the juvenile court's finding that D.P. faced a substantial risk of harm in the future. While the appeal was pending, the parents fully complied with their case plan and the juvenile court ultimately terminated jurisdiction before completion of the appeal. As a result, the Second District Court of Appeal found the appeal moot and declined to exercise discretionary review on the ground that the parents "'have failed to identify a specific legal or practical negative consequence resulting from the jurisdiction finding.'"

Parents appealed, and the Supreme Court of California reversed. On appeal, father sought both to have jurisdiction terminated and the jurisdictional finding reversed as unsupported by the evidence. He argued the appeal is not moot because the jurisdictional finding is stigmatizing and has resulted or will result in his inclusion in the California Child Abuse Central Index (CACI).

The justices first discussed the matter of mootness, noting that reviewing courts must decide "'actual controversies'" and not give opinions as to moot questions. A matter is moot when a court cannot provide effective relief to the plaintiff. For relief to be "'effective'" the plaintiff must complain of an ongoing harm and the harm must be redressable or capable of being rectified by the outcome the plaintiff seeks.

Stigma alone is insufficient to avoid mootness. . .
Turning to the dependency context, the justices noted that mootness is generally not a question where the juvenile court terminates jurisdiction while issuing an exit order that continues to impact the parents in question. But when the juvenile court terminates jurisdiction without issuing any such order, as occurred here, "the question of whether an appeal can grant the parents effective relief becomes more difficult." Courts of Appeal that have had to answer this question are split. In In re I.A. (2011) 201 Cal.App.4th 1484, 134 Cal.Rptr.3d 441, the First District held that "a parent must identify a 'legal []or practical consequence' arising from a dependency court's jurisdictional finding to avoid mootness." In contrast, the Second District in In re Daisy H. (2011) 192 Cal.App.4th 713, 120 Cal.Rptr.3d 709, held that the mere possibility that a jurisdictional finding will have a negative impact for the parent is enough to avoid mootness. The justices here resolved this split by concluding that complaining of stigma alone is insufficient to avoid mootness. Instead, the stigma must be "paired with some effect on the [parent's] legal status that is capable of being redressed by a favorable court decision." In so holding, the Supreme Court disapproved In re Daisy H. "to the extent it held…that speculative harm is sufficient to avoid mootness."

Father next argued that the appeal is not moot since the jurisdictional finding will result in his inclusion in the CACI. Specifically, the California Child Abuse and Neglect Reporting Act (CANRA) requires DCFS to forward substantiated reports of child abuse or neglect to California's Department of Justice (DOJ) for inclusion in the CACI. Several consequences arise from inclusion in the CACI. For example, some governmental employers require a CACI check as part of their general background check of prospective employees. And although other employers may not be required to perform a CACI check, some may do so as a matter of policy.

The appeal was moot. . .
But the justices held that father failed to show the general neglect allegation against him was reported to DOJ for inclusion in the CACI or that the allegation is even reportable. First, father did not assert the allegation was actually reported and, in fact, DCFS submitted a sworn declaration that the allegation was not forwarded to DOJ. Moreover, DCFS's counsel stated during oral argument that "'We don't want to report these parents. We did not report these parents. And we're not going to unless this court orders us to.'" The justices further noted that father failed to show that general neglect is eligible for inclusion in the CACI. CANRA distinguishes between severe and general neglect, and only the former must be forwarded for inclusion to the CACI. In fact, DCFS takes the position in this case that it cannot forward the allegation against parents to DOJ for such inclusion because general neglect allegations are not reportable. For these reasons, the justices concluded that father's appeal was rendered moot by the juvenile court's termination of jurisdiction.

The justices next turned to the issue of when discretionary review of moot cases in the dependency context is warranted. Again, Courts of Appeal have been split on this question, with some courts using their discretion broadly. In contrast, the Second District in In re Drake M. (2012) 211 Cal.App.4th 754, 149 Cal.Rptr.3d 875, found that discretionary review is appropriate when the jurisdictional finding involves dispositional orders that may be prejudicial to the appellant in current to future proceedings. But, as the justices noted, where jurisdictional finding in a dependency case serves as basis for dispositional orders that are also challenged on appeal, the appeal is not moot. As a result, the justices disapproved In re Drake M. to the extent that it suggests such a finding is insufficient to avoid mootness and supports only discretionary review.

Discretionary review must be decided on a case-by-case basis but does not require parents to show a specific legal or practical negative consequence. . .
The justices held that the Court of Appeal here erred by concluding that discretionary review requires the parent to "demonstrate specific legal or practical negative consequences that will result from the jurisdictional findings they seek to reverse." In elaborating on this error, the justices noted that the Court of Appeal actually articulated the test to determine whether a case is moot or not moot.

Finally, the justices concluded that courts must decide on a case-by-case basis whether it is appropriate to exercise discretionary review to reach the merits of an otherwise moot appeal. In evaluating whether to use its inherent discretion, a court should keep in mind that dependency proceedings are prone to mootness, that "dismissal of an appeal for mootness operates as an affirmance of the underlying judgment or order," and "such dismissals may 'ha[ve] the undesirable result of insulating erroneous or arbitrary rulings from review.'" The justices also canvassed some of the proper factors that courts have considered when determining whether discretionary review is appropriate, including, but not limited to: (1) whether the challenged jurisdictional finding could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings or have consequences for the appellant beyond jurisdiction; (2) whether the jurisdictional finding is based on particularly pernicious or stigmatizing conduct; and (3) the reason the appeal became moot (e.g., prompt compliance by parents with their case plan). For these reasons, the Supreme Court reversed the Court of Appeal's judgment dismissing the appeal and remanded the matter for the court to reconsider discretionary review in light of the principles and factors discussed in its opinion.