Filed 4/15/22 In re Lyla L. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Michael D. Abzug, Judge. Dismissed.

Janelle B. Price, under appointment by the Court of Appeal, for Defendant and Appellant Gerardo L.

Law Office of Marissa Coffey and Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant A.Y.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.

__________________________

A.Y. (Mother) and Gerardo L. (Father) appeal from the jurisdiction findings and disposition order declaring 13-year-old Lyla L., nine-year-old Aydin L., and four-year-old Aliyah L. dependents of the juvenile court under Welfare and Institutions Code section 300, subdivisions (b)(1), (c), (d), and (j),[1] after the court sustained allegations that the children were at substantial risk of harm because Mother and Father medically neglected and emotionally abused Lyla by failing to address her mental health issues; Father failed to protect Lyla from the paternal grandfather’s sexual abuse; and Father did not believe Lyla’s account of sexual abuse. On March 3, 2022, during the pendency of the appeals, the juvenile court terminated jurisdiction and entered a juvenile custody order granting Mother and Father joint legal and physical custody of Lyla, with Lyla having primary residence with Mother, and Father having unmonitored visitation with Lyla on alternative weekends when Aydin and Aliyah are present. The juvenile court granted Mother and Father joint legal and physical custody of Aydin and Aliyah. We dismiss the appeals as moot.

• FACTUAL AND PROCEDURAL BACKGROUND

1. 1. The Referral and Investigation

Mother and Father are divorced; the family law court entered a custody order granting the parents joint legal and physical custody of Lyla, Ayden, and Aliyah. Father lived in a house owned by the paternal grandparents, Antonio and Maritza. The paternal grandparents moved to Rosarito, Mexico after they retired, but they came to Los Angeles weekly to babysit the children for Father.

On October 16, 2020 the Los Angeles County Department of Children and Family Services (Department) received a referral alleging Antonio sexually abused Lyla. Lyla disclosed she was at Father’s home watching a video on her cell phone when Antonio walked in and asked, “‘What’s so funny?’” Lyla, who was wearing shorts and a shirt but no bra, put her cell phone underneath her left thigh, and Antonio touched her there. Antonio then put his hand inside Lyla’s shirt and caressed her back. When Lyla shrugged off Antonio’s hand, he placed his hand on her chest inside her shirt. Lyla flinched, and Antonio walked out of the room. Maritza, Aydin, and Aliyah were in another room and did not witness the incident.

Antonio denied the allegations. He stated that on October 16 he saw Lyla laughing while looking at her cell phone and tablet. He touched Lyla on her arm and asked, “‘What are you doing?’” Lyla replied, “‘Nothing.’” Antonio left that same day and returned to his home in Mexico. Maritza also denied Antonio inappropriately touched Lyla, generally confirming Antonio’s account. Maritza believed Mother made up the sexual abuse allegations because the family court ordered Mother to pay Father child support after the divorce.

Father stated he did not know what to believe. On October 16 Lyla denied the allegations. The next day, Lyla told Father that Antonio had only rubbed her back and stomach. Then on October 22, in response to Father’s inquiry, Lyla acknowledged that Antonio has touched her breast area. Father asked Lyla why she did not tell him this before, and Lyla answered, “‘[Y]ou did not ask.’” Father was not concerned about Antonio because Antonio had 18 grandchildren and none of them had ever accused Antonio of sexual abuse. Father agreed to a safety plan in which the children continued to stay with Father every other week on the condition Antonio was not in the home while the children were in Father’s custody.

Mother reported Antonio inappropriately touched her when she was 18 or 19 years old. Antonio walked up behind Mother, hugged her, and groped her breast. Father confirmed Mother told him about the incident, but he expressed disbelief because she waited six months to tell him. Mother also reported Antonio inappropriately touched one of her sisters-in-law.

On November 20 Father told the social worker that Antonio would be coming to Los Angeles for doctor appointments. Father agreed Lyla would stay with Mother until Antonio left Father’s home. However, on November 22 Lyla was at Father’s home sleeping on the couch when she woke up and heard Antonio’s voice. Lyla reported she saw Antonio in the hallway, and she went to a neighbor’s house to call Mother. When she returned, Father appeared upset and told Lyla no one else needed to know the family’s business. Father claimed he had planned to bring Lyla to Mother’s home before Antonio arrived on November 22, but he did not know Antonio’s arrival time.

Lyla reported she felt uncomfortable being around Antonio. She felt traumatized by the incident, and if she had a choice, she would no longer visit Father’s home. Lyla stated, “‘I want to live with my mom all the time and only visit my dad when I want to.’” Lyla believed Father doubted the incident occurred.

Following the incident, a mental health clinician spoke with Lyla, who disclosed she had previously cut herself and had suicidal ideations. Mother acknowledged Lyla used to cut herself two years earlier, but Mother denied Lyla cut herself recently. Mother reported Lyla was no longer in therapy because Lyla did not want to participate, and Mother had difficulty finding another therapist. Father stated Lyla previously received therapy, but Mother discontinued the sessions. Antonio reported Lyla had been cutting herself on her thighs for the prior four to five months. Antonio believed Lyla engaged in self-harm because of Mother and Father’s custody battle. The mental health clinician recommended Lyla receive therapy.

The Department recommended the children continue to stay with Father every other week as long as Father did not allow Antonio access to the house while the children were there.

1. 2. The Petition and Detention

On December 7, 2020 the Department filed a petition under section 300, subdivisions (b)(1), (c), and (j), alleging Mother and Father failed to ensure Lyla consistently participated in mental health treatment for her mental and emotional problems, including self-harm. The petition alleged further under section 300, subdivisions (b)(1), (c), (d), and (j), that Antonio, a member of the children’s household, sexually abused Lyla; Father knew of the sexual abuse but disbelieved it had occurred; and Father allowed Antonio to reside in the home and have unlimited access to Lyla.

At the December 10, 2020 detention hearing, the juvenile court released the children to Mother and Father under the Department’s supervision. Following a one-week “cooling off period” in which Lyla would stay with Mother, the family law custody order would be reinstated.

1. 3. The Jurisdiction and Disposition Report

In a January 12, 2021 interview with the dependency investigator, Lyla indicated she was still traumatized by the sexual abuse. When she was at Father’s house, Lyla got flashbacks of the incident and was disturbed by the photographs of Antonio on the wall and his belongings in the house. She felt Father did not believe her and should not have put her in the position of having Antonio in the house. Further, Lyla was uncomfortable in Father’s home because of her strained relationship with Maritza.

Father admitted he was still unsure about the sexual abuse allegations and questioned whether Mother made up the allegations because she was angry about having to pay child support.

Mother reported as to Lyla’s mental health issues that Lyla had a difficult time in sixth grade during Mother and Father’s divorce. Lyla “‘had friends that were into cutting behavior.’” Lyla initially refused to participate in therapy. She later agreed, but it was hard to find a female provider who was on the younger side, which was important to Lyla. Although Mother was not able to arrange consistent therapy for Lyla in elementary school, Mother claimed she had been responsive to the issue, explaining, “‘[W]e removed all sharp items, we removed medication from the cupboards, I was checking her body on a routine basis to make sure she wasn’t cutting herself, and I was consistently having talks with her.’” According to Mother, once Lyla was in middle school, she was no longer depressed and stopped cutting herself.

Father claimed Mother thwarted his efforts to obtain therapy for Lyla. Father stated Lyla’s friend disclosed Lyla was cutting herself, but Mother denied it was true. Father reported he took Lyla for therapy, but Mother cancelled the therapy, asserting Lyla did not need help and only wanted attention. Father said he “‘took all of the knives away, pills, everything, [and] put them away.’”

1. 4. Last Minute Information for the Court Report

As of March 4, 2021, Lyla was enrolled in therapy. Lyla had not seen Antonio since November 22, 2020. But Lyla reported she had “panic attacks” triggered by reminders of Antonio. She continued to believe Father did not support her. Lyla wanted to reside with Mother full-time and visit Father when she wanted; alternatively, Lyla wanted to spend weekdays and every other weekend with Mother and visit Father on the weekends her siblings were there. Mother was comfortable with a 50/50 custody arrangement or with Lyla residing full time with her if that was what Lyla wanted. Father wanted a 50/50 custody arrangement. The Department recommended “Lyla visit her father on the weekends that her siblings are in his care, with permission to liberalize the schedule as appropriate.”

1. 5. The Jurisdiction and Disposition Hearing

At the March 4, 2021 jurisdiction and disposition hearing, Mother’s counsel requested the court dismiss Mother from the petition. Father’s counsel argued all the allegations should be dismissed except for those under section 300, subdivision (d), explaining, “t’s not that [Father] doesn’t believe, it’s simply he didn’t have all the information in front of him and when he specifically talked to Lyla about it, he wasn’t getting the same story that everyone else was. He does understand that he needs to be protective, that Lyla is uncomfortable around the paternal grandfather and that the two of them cannot be together, but I would ask for that count to conform to proof.” When the juvenile court asked Father’s counsel if there is “any count which you contend is supported by adequate evidence,” she responded, “Your Honor, I would argue that the (b), the (j), and the (c) the Department has not preponderated.”

1. 6. [i]Termination of Dependency Jurisdiction

At the March 3, 2022 section 364 hearing, the juvenile court terminated jurisdiction over the children.[3] The court entered a juvenile custody order granting Mother and Father joint legal and physical custody of Lyla, with Lyla having primary residence with Mother. The visitation order provides for Father to have unmonitored visitation with Lyla on alternate weekends when Lyla’s siblings are present. The court granted Mother and Father joint legal and physical custody of Aydin and Aliyah.

We invited the parties to submit supplemental letter briefs addressing whether Mother’s and Father’s appeals have been rendered moot by the March 3, 2022 orders. Mother and Father each submitted a supplemental brief arguing the appeals are not moot. The Department filed supplemental briefs in each appeal in which it stated it did not object to us considering the appeals on the merits.

1. 1. Mother’s Appeal Is Moot

“An order terminating juvenile court jurisdiction generally renders an appeal from an earlier order moot.” (In re Rashad D. (2021) 63 Cal.App.5th 156, 163; accord, In re C.C. (2009) 172 Cal.App.4th 1481, 1488; cf. In re S.G. (2021) 71 Cal.App.5th 654, 663 [appeal from juvenile court’s denial of restraining order was not moot despite termination of jurisdiction because an order directing juvenile court to issue restraining order would provide effective relief].) A dependency appeal “‘“becomes moot when, through no fault of the respondent, the occurrence of an event renders it impossible for the appellate court to grant the appellant effective relief.”’” (In re J.P. (2017) 14 Cal.App.5th 616, 623; accord, In re N.S. (2016) 245 Cal.App.4th 53, 61 [mother’s appeal was moot where juvenile court awarded her custody of minor and dismissed dependency proceedings]; In re Albert G. (2003) 113 Cal.App.4th 132, 134 [maternal aunt’s appeal of child’s removal from her care and denial of her section 388 petition were rendered moot by child’s adoption].)

Mother contends her appeal is not moot because the juvenile court’s findings, if not reversed, could subject her to inclusion in the Child Abuse Central Index (CACI). (See Pen. Code, § 11169, subd. (a) [providing designated agencies, including the Department, “shall forward to the Department of Justice a report in writing of every case it investigates of known or suspected child abuse or severe neglect that is determined to be substantiated, other than cases coming within subdivision (b) of Section 11165.2,” which defines “‘[g]eneral neglect’”].)

Mother’s concern that the juvenile court’s findings would cause her to be included in the CACI database is speculative. Mother does not claim the Department reported her to the Department of Justice for inclusion on the CACI, yet had the Department reported Mother, it was required to provide her notice. (See In re C.F. (2011) 198 Cal.App.4th 454, 462 [“The reporting agency must notify the known or suspected child abuser that he or she has been reported to the CACI.”].)

Further, the jurisdiction findings do not reasonably fall within the definitions of child abuse or severe neglect. Penal Code section 11169, subdivision (a), provides for reporting of substantiated “child abuse or severe neglect.” “[C]hild abuse” includes “sexual abuse as defined in [Penal Code] Section 11165.1.” (Pen. Code, § 11165.6.) “Sexual abuse,” in turn, includes sexual assault. (Id., § 11154.1.) “‘Severe neglect’” includes “those situations of neglect where any person having the care or custody of a child willfully causes or permits the person or health of the child to be placed in a situation such that his or her person or health is endangered, . . . including the intentional failure to provide adequate food, clothing, shelter, or medical care.” (Id., § 11165.2, subd. (a).) The jurisdiction findings that Antonio sexually abused Lyla and Father failed to protect her do not implicate Mother. And the jurisdiction findings of Mother’s medical neglect and emotional abuse of Lyla were based on Mother’s failure to ensure Lyla “consistently participates in mental health treatment,” which findings would not reasonably constitute “severe neglect.” By contrast, in In re Emily L. (2021) 73 Cal.App.5th 1, 4, 15, relied on by Mother, the court concluded the alleged conduct, including physically abusing the child by grabbing her neck, choking her, and forcibly grabbing her, fell within the definition of child abuse, placing the mother at risk of inclusion in the CACI. (Id. at p. 15.)

Because Mother has not shown any collateral consequences from the jurisdiction findings for which we can grant effective relief, we dismiss her appeal as moot.

1. 2. Father’s Appeal Is Moot

Father contends his appeal of the jurisdiction findings and disposition order as to Lyla is not moot because the disposition order reduced his custodial time from 50 percent under the family law order to every other weekend (which Father asserts is a 15 percent custodial share), and thus, reversal of the jurisdiction findings and disposition order can provide effective relief. “We agree an erroneous jurisdiction finding can have unfavorable consequences extending beyond termination of dependency jurisdiction and that termination does not necessarily moot an appeal of such a finding.” (In re Rashad D., supra, 63 Cal.App.5th at p. 164.) But as we explained in Rashad D., “an appeal from the orders terminating jurisdiction and awarding custody is necessary for this court to be able to provide effective relief. Unless the appellate court reverses or vacates the order terminating dependency, the juvenile court has no jurisdiction to conduct further hearings in the now-closed case, including modification of its custody order.” (Id. at p. 164; see In re S.G., supra, 71 Cal.App.5th at pp. 666 to 667 [where the juvenile court issues a final custody (exit) order, “reversing an earlier order on custody and/or visitation could not deliver the desired relief—namely, a change in custody and/or visitation. Even after such reversal, the more recent custody and visitation terms contained in the exit order would govern. To effect an actual change in custody and visitation rights, the appellate court would need to reverse the juvenile court’s last word on custody and/or visitation—the exit order terminating jurisdiction on those terms . . . .”]; see In re C.C., supra, 172 Cal.App.4th at p. 1489 [exit order moots the mother’s appeal].)

Father notes in his supplemental letter brief that he has appealed from the March 3, 2022 final custody order and termination of jurisdiction. That appeal will properly afford Father a remedy. Further, as we observed in In re Rashad D., supra, 63 Cal.App.5th at page 165, footnote 7, “Pursuant to Welfare and Institutions Code section 302, subdivision (d), [a parent] may seek modification of [an exit] order in a proceeding under Family Code section 3021 if [the parent] can demonstrate ‘there has been a significant change of circumstances since the juvenile court issued the order and modification of the order is in the best interests of the child.’”[4]

Father alternatively urges us to consider his appeal because the question whether a significant reduction in custodial time is a removal order “has broad public interest and is capable of repetition.” Father is correct that “a court may exercise its inherent discretion to resolve an issue . . . where a ‘pending case poses an issue of broad public interest that is likely to recur.’” (In re N.S., supra, 245 Cal.App.4th at p. 59.) However, we decline Father’s invitation to exercise our discretion here. Although the subject of whether a significant reduction in custodial time constitutes a removal requiring specific findings is an issue of interest to parents, the specific factual scenario here (a reduction from 50 percent to 15 percent) does not render this otherwise commonplace dependency appeal into a matter of public interest. Moreover, any analysis of whether the lack of removal findings was prejudicial would be specific to the facts of this case. (See In re Diamond H. (2000) 82 Cal.App.4th 1127, 1137 [“Although the court did not state a factual basis for its removal order, any error is harmless because it is not reasonably probable such findings, if made, would have been in favor of continued parental custody.”], disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)

As to Aydin and Aliyah, Father acknowledges that because he was granted joint legal and physical custody of the children, the juvenile court’s orders “were not the basis of any current order adverse to him,” and his appeal of the disposition orders “are moot due to subsequent proceedings.”

We therefore dismiss Father’s appeal as moot.

Mother’s and Father’s appeals are dismissed as moot.

FEUER, J.

We concur:

PERLUSS, P. J.

SEGAL, J.

[1] Further undesignated statutory references are to the Welfare and Institutions Code.

[2] Father timely appealed. Although Mother did not timely appeal, we denied the Department’s motion to dismiss and granted Mother’s motion for relief from trial counsel’s failure to file a timely notice of appeal.

[3] On our own motion we take judicial notice of the March 3, 2022 minute orders, the juvenile custody orders, and the visitation order for Lyla. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)

[4] Father argues he would be in a less favorable position in the family law court because of the need to show a significant change of circumstances. But this does not change the fact that even if we were to reverse the disposition order, we could not provide him effective relief because the order was superseded by the final exit order.