Paint it black

In the early 20th century, automaker Henry Ford quipped that consumers who wanted to buy one of his Model T cars could "have it in any color as long as it's black."

But is a "choice" really a choice if there is only one option?

Jumping from automotive marketing to the law, does a court have discretion to choose if that discretion must be always exercised in a particular way?

This issue is presented by In re D.P., 14 Cal.5th 266 (2023), which deals with the mootness doctrine in California.

California's mootness doctrine is far more malleable than its federal counterpart.

In the federal courts, the Constitution-based "Case or Controversy" requirement mandates that an appeal that has become moot - chiefly, because no further relief can be granted to the parties - must be dismissed; any opinion rendered in a moot case would be purely "advisory" and would thus transgress the Case or Controversy requirement. E.g., Preiser v. Newkirk, 422 U.S. 395, 401-02 (1975); Muskrat v. United States, 219 U.S. 346, 359-61 (1911).

Like the federal courts, California specifies that a case is moot when the appellate court can no longer grant effective relief. Eye Dog Foundation v. State Board of Guide Dogs for the Blind, 67 Cal.2d 536, 541 (1967). But California - which has no "Case or Controversy" limitation in its Constitution - imbues its appellate courts with the discretion to hear an otherwise moot case anyway, and that discretion is typically to be exercised in one of three situations: (1) when the appeal "raises issues of continuing public importance," Lundquist v. Reusser, 7 Cal.4th 1193, 1202 n.8 (1994); (2) when the issue on appeal might recur between the parties or in future cases, such as when it is capable of repetition yet evading review, Conservatorship of Wendland, 26 Cal.4th 519, 524 n.1 (2001); and (3) when "a material question remains for the court's determination." Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga, 82 Cal.App.4th 473, 479-80 (2000). Indeed, the California Supreme Court has indicated that, if there is any "doubt" about "justiciability," the tie goes to appellate review. National Audubon Society v. Superior Court, 33 Cal.3d 419, 432 n.14 (1983).

In re D.P. addresses mootness in the context of California's juvenile dependency law.

Juvenile dependency presents somewhat unique issues of mootness.

In a juvenile dependency case, the juvenile court's first task is to ascertain whether a child has suffered abuse or neglect (within the meaning of California's Welfare and Institutions Code). If so, the court's jurisdiction attaches and the court must issue a dispositional order, which entails deciding (1) whether to remove the child from their parents due to the danger the parents present at that time and (2) whether to order the social services agency to provide the parents with services aimed at remedying the issues that gave rise to the abuse or neglect. Lastly, if those services do not net sufficient progress, the court must decide whether to terminate the parent's rights over the children.

Mootness arises often in dependency cases. Because parents have a right to seek appellate review of nearly all post-jurisdictional orders and because the dependency case is still ongoing during the pendency of such appellate review, otherwise viable appeals are often eclipsed by subsequent orders of the juvenile court.

In In re D.P., a father sought to challenge the jurisdictional findings based on abuse and neglect by him even after the juvenile court had terminated jurisdiction and returned the children to his custody. In deciding whether the appellate courts should entertain such an appeal, the Supreme Court engaged in a two-step inquiry, asking (1) is the appeal moot, and (2) if it is, should the court exercise its discretion to hear it anyway?

When it comes to whether an appeal in a dependency case is moot, In re D.P. sets out the following principles: An appeal is not moot if some order of the juvenile court "continue[s] to impact the parents"; such orders include orders that affect custodial rights, that curtail visitation or contact with the child, or that have resulted in dispositional orders that "continue to adversely affect" the parent. Id. at 276-78. However, an appeal is moot if the appeal challenges a jurisdictional finding that the parent engaged in abuse or neglect; such findings, while "generally stigmatizing," are "alone ... insufficient to sustain an appeal." Id. at 277.

When it comes to whether an appellate court should exercise its discretion to hear a moot appeal, In re D.P. articulates several "broad principles and nonexhaustive factors." Id. at 287. They include: (1) whether the "challenged jurisdictional finding" would "be prejudicial" to the appealing party in the future because it "could potentially impact the current or future dependency proceedings" or "future family law ... proceedings," (2) whether the challenged finding is "based on particularly pernicious or stigmatizing conduct," and (3) whether the reason the case is now moot is due to the parent's "prompt compliance" with the services aimed at reunifying the family or otherwise "laudable behavior" (as it seems unfair to punish good behavior with the loss of an appeal). Id. at 285-87.

At the same time that In re D.P. lays out this framework, it also observes - quite correctly - that "[a] prior jurisdictional finding" against a parent "can be considered [(1)] by [a social services agency] in determining whether to file a [future] dependency petition or [(2)] by a juvenile court in [future] dependency proceedings" in determining whether (a) to sustain a new finding of jurisdiction or (b) to remove a child from that parent's custody. Id. at 285. It can also be used as a basis for denying services. Cal. Welfare and Institutions Code section 361.5(b)(5).

This observation prompts two further questions.

First, if a jurisdictional finding can always be used by an agency or by the juvenile court in future dependency cases, then such a finding would always seem to be "prejudicial" and thus warrant the exercise of discretion in favor of hearing the moot appeal. In this respect, a jurisdictional finding operates like a mark on a parent's "permanent record." To be sure, not all findings by a juvenile court would seem to have that same "permanent record" effect. For instance, a finding (by itself) that a child should be removed from her parent would not have the same potential for adverse use in the future. But for cases appealing a mark on the parent's "permanent record," this factor would seem to inevitably counsel in favor of the exercise of discretion to review. But if a factor mandates the exercise of discretion, does the appellate court really have discretion in that circumstance at all?

Second, if a jurisdictional finding is part of a parent's "permanent record" that will inevitably affect future proceedings, is an appeal of that finding moot at all? Where a party subject to an expired restraining order seeks to appeal the factual findings underlying that order, that appeal is not moot as long as the challenged findings "could have collateral consequences in future proceedings," such as a finding that a party engaged in domestic violence, which may be used to trigger a presumption against having custody of any children. San Diego Police Dept. v. Geoffrey S., 86 Cal.App.5th 550, 564 (2022); Celia S. v. Hugo H., 3 Cal.App.5th 655, 665-66 (2016).

Does this rationale apply with equal force to a "permanent record" - such as jurisdictional findings in dependency cases? If so, those cases would not be moot at all.

Or does In re D.P. displace this prior rationale with a more nuanced principle - namely, that an appeal challenging an order is moot when the order ceases to have an effect, and that the lasting effect that the findings underlying that order have on a parent's "permanent record" does not save the appeal from mootness but nevertheless counsels strongly - and, indeed, mandatorily - in favor of appellate review?

Given that the application of the mootness doctrine is anything but black and white (or even black and black, thank you, Mr. Ford), it is likely to be an issue of continuing public importance for many years.