In re Layla R. CA1/5 ( 2022 )

Filed 12/19/22 In re Layla R. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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poses of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re LAYLA R., a Person Coming
Under the Juvenile Court Law.
SONOMA COUNTY HUMAN
SERVICES DEPARTMENT,
A164135
Plaintiff and Respondent,
v.
DIANA S. et al., (Sonoma County
Defendants and Respondents; Super. Ct. No. DEP-5732-01)
LAYLA R., a Minor, etc.,
Appellant.
In re LAYLA R., a Person Coming
Under the Juvenile Court Law.
SONOMA COUNTY HUMAN A164492
SERVICES DEPARTMENT,
Plaintiff and Appellant,
v. (Sonoma County
Super. Ct. No. DEP-5732-01)
DIANA S.,
Defendant and Appellant;
DONNY R.,
Intervener.
After a 24-month review hearing, the juvenile court found
that five-year-old Layla R. was at substantial risk of emotional
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detriment if returned to her mother’s custody and that the
Sonoma County Human Services Department (the Department)
failed to provide reasonable reunification services. The juvenile
court ordered six more months of reunification services but also
made a further order that no visitation could occur until Diana S.
(Mother) and Layla began parent-child therapy. In these
consolidated appeals, Layla, the Department, and Mother appeal
from that order, challenging, among other things, the sufficiency
of the evidence to support the juvenile court’s findings. We are
unable to grant effective relief and dismiss the appeals as moot.
BACKGROUND
A.
In 2019, the Department filed a dependency petition, which
alleged then two-year-old Layla came within Welfare and
Institutions Code section 300, subdivision (b)(1),1 due to Mother’s
substance abuse, neglect, and unsafe living conditions. It was
further alleged that Layla was at substantial risk of being abused
or neglected (§ 300, subd. (j)) because Mother failed to protect
Layla’s older sibling from sexual abuse. The juvenile court
sustained the petition, declared Layla a dependent of the juvenile
court, and ordered her removed from Mother’s custody.
During initial supervised visits, Mother and Layla were
observed to be connected and affectionate. Mother maintained
sobriety, found full-time employment, and engaged in her
reunification services (including therapy). Layla was diagnosed
with “educational autism,” as well as post-traumatic stress
disorder and attachment issues. Their visits progressed to
unsupervised.
Then Layla began to struggle with transitions to and from
her visits with Mother. In particular, she complained of injuries,
1Undesignated statutory references are to the Welfare and
Institutions Code.
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nausea, and stomach pain that were not physically explained and
were determined to be psychosomatic stress responses. When in-
person visits resumed, after a period of virtual visits due to the
emergence of COVID-19 in 2020, Layla began to resist visits with
Mother and again experienced somatic stress responses. Layla
was referred to an individual play therapist, Ibitz, but the
Department made no attempt to start joint therapy for Mother
and Layla.
At an 18-month review hearing (that was repeatedly
continued), the juvenile court found that Mother substantially
met her case plan objectives, that returning Layla to Mother’s
custody would be detrimental because of Layla’s severe somatic
responses, and that the Department failed to offer reasonable
services to address those responses. The juvenile court extended
services for six months, ordered the Department to provide
therapeutic visits for Mother and Layla, and temporarily
suspended visitation until appropriate therapeutic supports were
in place.
On Mother’s prior appeal (Sonoma Cty. Human Servs. Dept.
v. Diana S. (In re Layla R.) (March 7, 2022, A162649) [nonpub.
opn.] (Layla R.)), this Division affirmed the 18-month review
order, concluding that substantial evidence supported the
juvenile court’s finding that returning Layla to Mother’s custody
placed her at substantial risk of detriment. In reaching that
conclusion, this Court determined that substantial evidence also
supported an implicit finding that Layla’s anxiety was caused, at
least in part, by early childhood neglect she suffered in Mother’s
home.
B.
In its status report for the 24-month review hearing, the
Department recommended termination of reunification services.
The social worker noted that a family therapist, Stender, began
working with Mother and Layla (individually) within a few
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months of the 18-month hearing. However, after five sessions
with Layla, Stender concluded family therapy would be
emotionally detrimental to Layla—who did not recognize Diana
S. as her mother, did not want to visit her, and displayed
concerning behaviors when the subject was explored. Layla
continued to do well in her foster care placement and identified
her foster parents as her mother and father.
Mother’s therapist had also recently requested termination
of Mother’s individual therapy due to her failure to progress or
demonstrate insight. The therapist believed that Mother’s
avoidance of any depth or trauma work indicated her failure to
recognize Layla’s trauma.
Shortly before the 24-month review hearing date, Layla’s
counsel filed a section 388 petition, requesting termination of
both visitation and family therapy. After a hearing on the
petition, at which Stender testified that continued family therapy
would be counterproductive, the court granted the petition in
part and denied it in part. Specifically, the court temporarily
withdrew its order for family therapy but declined to make a
finding that either visitation or family therapy was detrimental.
The court believed the detriment question was best left for
resolution at the upcoming contested review hearing.
C.
At the conclusion of a contested 24-month review hearing,
the juvenile court ordered an additional six months of
reunification services, specifically joint therapy. The court found
that the Department failed to meet its burden to show it offered
reasonable services; that the case had been significantly
disrupted by the COVID-19 pandemic; and that it was in Layla’s
best interests to order additional services. The court declined the
Department’s request to make a detriment finding on visitation,
ordering “visitation to mother pursuant to parent/child therapy
and if clinically indicated, additional visitation with mother is
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authorized[.]” The court further ordered that the prior
suspension of visitation would remain in place until parent-child
therapy began.
D.
While the instant appeals (A164135 and A164492) from the
24-month review order were pending, the juvenile court found, at
a subsequent review hearing, that Mother made substantial
progress towards mitigating the causes necessitating removal;
that return of Layla to Mother’s custody would nonetheless be
detrimental; that reasonable reunification services had been
provided; and that visitation would be detrimental to Layla’s
emotional health. The juvenile court terminated reunification
services and set a section 366.26 hearing for November 9, 2022.
The Department informed the court of this development in
its briefs, asked us to take judicial notice of this later order, and
conceded that its appeal from the 24-month review order had
become moot.2
In Diana S. v. Superior Court (Oct. 12, 2022, A165684)
[nonpub. opn.] (Diana S.), this court denied (on the merits)
Mother’s petition for writ relief from the order terminating
reunification services and setting a section 366.26 hearing. In
her petition, Mother did not challenge the juvenile court’s finding
that visitation was detrimental to Layla.
The Department then asked us to take judicial notice of
the Diana S. opinion, and filed a motion (which Layla joined) to
dismiss Mother’s instant (A164492) appeal as moot. Although
2 The Department filed a request for judicial notice of this
court’s Layla R., supra, A162649 opinion and the juvenile court’s
subsequent order setting a section 366.26 hearing. Layla joined
in the Department’s request. We originally deferred ruling on
their unopposed request but now grant it. (See Evid. Code, §§
452, subd. (d), 459, subd. (a).)
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Mother and Father oppose the motion to dismiss, they make no
objection to this court taking judicial notice of the Diana S.
opinion. Accordingly, we take judicial notice of that opinion. (See
Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
DISCUSSION
We agree that the consolidated appeals are moot because a
reversal in any of the three appeals would be ineffective now that
the subsequent order—terminating Mother’s reunification
services, setting a section 366.26 hearing, and finding visitation
between Mother and Layla detrimental—is final.
A.
Appellate courts have a duty to decide only actual
controversies via effective judgments and to abstain from giving
opinions on moot questions. (In re N.S. (2016) 245 Cal.App.4th
53, 58-59.) Juvenile dependency appeals frequently raise
mootness concerns because the parties have multiple
opportunities to appeal while the proceedings in the juvenile
court continue. (Id. at p. 59.) We will ordinarily dismiss
dependency appeals if, assuming reversible error is found, we
nonetheless cannot provide any effective relief. (Id. at pp. 58-60.)
However, the question should be decided on a case-by-case basis.
(In re S.G. (2021) 71 Cal.App.5th 654, 664.)
B.
Both the Department and Layla concede that their appeals
are moot. We agree that their appeals are moot because they
have now received the very relief requested—termination of
reunification services, the setting of a section 366.26 hearing, and
a finding that visitation with Mother is detrimental.
The Department and Layla nonetheless ask us to exercise
our discretion to consider their moot appeals. (See In re Yvonne
W. (2008) 165 Cal.App.4th 1394, 1404 [reviewing courts have
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discretion to reach merits of moot appeal if it presents an issue of
public importance that is likely to recur while evading appellate
review].)
Neither appeal presents an issue of broad public interest.
Rather, all three of their arguments raise highly fact-specific
questions: (1) whether the juvenile court’s finding that the
Department had not provided reasonable services (in the six
months preceding the 24-month review hearing) was supported
by substantial evidence; (2) whether the juvenile court abused its
discretion in extending reunification services beyond 24 months;
and (3) whether the juvenile court abused its discretion, at the
24-month review, in declining to find visitation with Mother
detrimental.
We are not persuaded that it is appropriate to address
these moot issues. (See In re Rashad D. (2021) 63 Cal.App.5th
156, 159 [noting similar fact specific issues are frequently
presented to appellate courts and are unlikely to evade review];
accord, In re M.C. (2011) 199 Cal.App.4th 784, 802 [declining to
address sufficiency of the evidence issue because it was “not an
issue of continuing public importance”].)
C.
In Mother’s opening brief, she challenges the juvenile
court’s visitation order, arguing it was an unlawful delegation of
judicial power. She seeks reinstatement of the order for
therapeutic visitation, enforcement of that order, and more time
for reunification.
We agree with the Department that Mother’s appeal is also
moot because, even if we assume (for the sake of argument) that
she is right on the merits, there is no effective relief we could
grant now that the subsequent order—terminating reunification
services, setting a section 366.26 hearing, and finding any
visitation between Mother and Layla detrimental—is final
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(Diana S., supra, A165684). (See § 366.26, subd. (l)(1); In re
Carrie M. (2001) 90 Cal.App.4th 530, 533.)
Mother’s opposition brief does not persuade us it remains
possible to grant effectual relief—by affording her “additional
reunification services and enforcement of visits”—or that the
challenged visitation order has continuing impact after the
juvenile court’s finding that visitation is detrimental. (See In re
Stephanie M. (1994) 7 Cal.4th 295, 317 [when reunification
services have been terminated and section 366.26 hearing has
been set, focus shifts from reunification to child’s interest in
permanence and stability]; In re Hunter S. (2006) 142
Cal.App.4th 1497, 1504 [“[e]ven after family reunification
services are terminated, visitation must continue unless the court
finds it would be detrimental to the child”], italics added.)
We are similarly unconvinced, by Mother’s wholly
conclusory argument, that this is an appropriate case in which to
exercise our discretion to address her moot appeal.
DISPOSITION
The consolidated appeals are dismissed as moot.
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______________________
BURNS, J.
We concur:
____________________________
JACKSON, P.J.
____________________________
WISEMAN, J.*
A164135 / A164492
* Retired Associate Justice of the Court of Appeal, Fifth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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