In re Baby Girl R.

Filed 11/8/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re BABY GIRL R., a Person Coming
Under the Juvenile Court Law.
H051362
(Santa Clara County
Super. Ct. No. 23JD027536)
COUNTY OF SANTA CLARA
DEPARTMENT OF FAMILY AND
CHILDREN’S SERVICES,
Plaintiff and Respondent,
v.
BABY GIRL R.,
Appellant.
Through counsel, minor child (Baby Girl R.)—abandoned by her mother, S.R.,
days after her birth—appeals the juvenile court’s disposition order granting reunification
services. Baby Girl R. contends the court was required to bypass reunification services
under Welfare and Institutions Code section1 361.5, subdivision (b)(1), because S.R.’s
whereabouts were unknown despite diligent efforts to locate her. Respondent County of
Santa Clara Department of Family and Children’s Services (Department) contends the
appeal is moot due to the court’s subsequent termination of reunification services, and,
even if it were not moot, Baby Girl R. has not established grounds requiring reversal.
Although the appeal is moot, we exercise our discretion to consider the merits.
We conclude that where there is clear and convincing evidence that a parent’s
1 Unless otherwise specified, all undesignated statutory references are to the
Welfare and Institutions Code.

-- 1 of 12 --

2
whereabouts are unknown and proof that a reasonably diligent search has failed to locate
the parent, the juvenile court has the discretion to bypass reunification services but is not
required to do so. Discerning no error, we affirm the juvenile court’s disposition order.
I. FACTUAL AND PROCEDURAL BACKGROUND
S.R. and Baby Girl R. were transported by ambulance to a hospital shortly after
S.R. gave birth in a homeless encampment. The identity of Baby Girl R.’s father is
unknown. S.R. informed hospital staff she was unaware of her pregnancy and was using
methamphetamines daily. Baby Girl R. tested positive for the drug and exhibited
withdrawal symptoms. The hospital placed S.R. on an involuntary psychiatric hold as
she displayed paranoia, delusions, and aggression. When the hospital discharged S.R. a
few days later, she returned to the homeless encampment and left Baby Girl R. at the
hospital. The Department initiated dependency proceedings and the court placed Baby
Girl R. in protective custody due to S.R.’s inability and failure to care for the child.
Despite diligent search efforts, the Department was unable to locate S.R. after she
left the hospital. The Department interviewed several of S.R.’s relatives, including her
father, stepmother, sister, brother, and cousin, none of whom had seen S.R. for several
years. S.R.’s relatives reported that she had a history of substance abuse and mental
health issues.
At the disposition hearing, the Department recommended reunification services
since it was S.R.’s first dependency case and S.R. had relatives who wanted her to
receive help and who hoped to keep Baby Girl R. connected to the family. Counsel for
Baby Girl R. objected, arguing that clear and convincing evidence supported bypassing
reunification services under section 361.5 because S.R.’s whereabouts remained
unknown despite the Department’s diligent search. Counsel for Baby Girl R. expressed
concern that, if and when S.R. was located, S.R. could claim that services ordered in her
absence were not reasonably tailored to her needs, which could cause further delays in

-- 2 of 12 --

3
the proceedings. The Department claimed it had sufficient information concerning S.R.
to tailor services to address her needs (i.e., substance abuse and mental health issues).
The Department informed the court that it would continue to search for S.R. and, if it was
determined that additional services were needed, it would seek a modification of the
court’s order. As to any concern for delay, the Department noted that the relevant
statutes required the court to set a six-month review hearing regardless of whether it
ordered reunification services.
After the hearing, the juvenile court entered the disposition orders which included
findings that “the whereabouts of the parent is unknown and reasonable efforts to locate
them have been unsuccessful[,]” declared Baby Girl R. a dependent of the court, placed
her in foster care, ordered reunification services for S.R., and set the next hearing for a
six-month review.
Counsel for Baby Girl R. filed a timely notice of appeal of the court’s disposition
order granting reunification services to S.R. While her appeal was pending, the juvenile
court terminated reunification services for S.R. at the six-month review hearing, placed
Baby Girl R. with her maternal grandparents, and set the case for a section 366.26
hearing.2
II. DISCUSSION
A. Mootness
Before addressing the merits of Baby Girl R.’s appeal, we first respond to the
Department’s contention that the appeal is moot because subsequent to the reunification
order before us, the juvenile court terminated reunification services for S.R. and ordered
2 We grant the Department’s motion to augment the record to include the post-
appeal order. (In re Damian L. (2023) 90 Cal.App.5th 357, 369 (Damian L.) [granting
augmentation for the limited purpose of determining mootness]; see also In re D.P.
(2023) 14 Cal.5th 266, 287 (D.P.), citing In re Salvador M. (2005) 133 Cal.App.4th
1415, 1421 [record augmented with additional report because the report related to
mootness].)

-- 3 of 12 --

4
Baby Girl R. placed with her grandparents. An appeal is moot when it no longer presents
a justiciable controversy due to post-appeal events, and the appellate court is unable to
grant effective relief. (In re Christina A. (2001) 91 Cal.App.4th 1153, 1158.) We agree
that the matter here has been rendered moot due to the post-appeal termination of S.R.’s
reunification services. However, “[e]ven when a case is moot, courts may exercise their
‘inherent discretion’ to reach the merits of the dispute.” (D.P., supra,14 Cal.5th at
p. 282.) “A reviewing court must decide on a case-by-case basis whether it is appropriate
to exercise discretionary review to reach the merits of a moot appeal,” (id. at p. 287) such
as whether the case presents an issue of broad public interest that is likely to recur. (Id. at
p. 282.)
Here, the fundamental issue on appeal is whether the juvenile court was required,
as a matter of law, to bypass reunification services under section 361.5, subdivision
(b)(1), when clear and convincing evidence established S.R.’s whereabouts to be
unknown despite the Department’s diligent search. Baby Girl R. contends that it is, the
Department contends it is not. Neither party cited a published opinion addressing this
issue, and our research has disclosed none. This is an important question of statutory
interpretation concerning the juvenile court’s authority to order reunification services
when a parent’s whereabouts are unknown after a diligent search, and is likely to recur in
other cases. We thus exercise our discretion to reach the merits of this appeal. (See
Damian L., supra, 90 Cal.App.5th at p. 370 [addressing merits of moot appeal when
issues involve statutory interpretation].)3
B. Section 361.5, Subdivision (b)(1) Bypass Provision is Not Mandatory
We commence with a review of the reunification statutes.
3 Because we decide the case on the merits, we do not address Baby Girl R.’s
argument that the appeal should be considered because its mootness was caused by the
Department’s three-month delay in filing its responding brief.

-- 4 of 12 --

5
When the juvenile court removes a child, the court must order family reunification
services for the parent and child unless a statutory exception applies. (§ 361.5, subd.
(a).)4 Reunification services are generally limited to a period of six months from the
disposition hearing but no longer than twelve months from the date the child entered
foster care for a child under the age of three. (§ 361.5, subd. (a)(1)(B).) After the
disposition hearing, the court must conduct a six-month status review hearing and
ongoing periodic review hearings. (§ 366.21, subd. (e)(1); see also § 366, subd. (a)(1).)
However, section 361.5, subdivision (b), identifies 17 circumstances (commonly
referred to as the “bypass provisions”) in which the court “need not” order reunification
services. (§ 361.5, subd. (b)(1)-(17); In re I.A. (2019) 40 Cal.App.5th 19, 23.) At the
disposition hearing, the juvenile court may deny or “bypass” family reunification services
if any one of the 17 bypass provisions listed in section 361.5, subdivision (b), is
established by clear and convincing evidence. (§ 361.5, subd. (b)(1)-(17).) Section
361.5, subdivision (c), further specifies that absent specific findings, the denial of
reunification services is mandatory with respect to the majority of the 17 bypass
provisions identified in subdivision (b).
Relevant to this appeal, section 361.5, subdivision (b)(1), provides that
“[r]eunification services need not be provided to a parent . . . when the court finds, by
clear and convincing evidence . . . [¶] (1) That the whereabouts of the parent or guardian
are unknown. A finding pursuant to this paragraph shall be supported by an affidavit or
by proof that a reasonably diligent search has failed to locate the parent or guardian. The
posting or publication of notices is not required in that search.” If reunification services
are not ordered under this provision, the juvenile court must set a six-month review
hearing. (§§ 361.5, subd. (d), 366, subd. (a)(1).) Parents whose whereabouts become
known within the six-month time period are entitled to reunification services whereas
4 Section 361.5, subdivision (a), was amended in 2024, but the amendment does
not impact our analysis.

-- 5 of 12 --

6
parents located after the six-month time period are not. (§ 361.5, subd. (d); In re Korbin
Z. (2016) 3 Cal.App.5th 511, 518.)
Here, the juvenile court made express findings that S.R.’s whereabouts were
unknown despite the Department’s diligent efforts to locate her. As a result, Baby Girl R.
asserts that “the juvenile court essentially ha[d] no choice but to bypass services” under
section 361.5, subdivision (b)(1). The Department contends, based on the plain language
of the statute that the court had the discretionary authority to bypass reunification
services in these circumstances.
Whether section 361.5, subdivision (b)(1) required the juvenile court to bypass
reunification services is a question of statutory interpretation. We review de novo the
interpretation and proper application of dependency statutes. (Damian L., supra, 90
Cal.App.5th at p. 372.) “ ‘ “Our primary task in interpreting a statute is to determine the
Legislature’s intent, giving effect to the law’s purpose. [Citation.] We consider first the
words of a statute, as the most reliable indicator of legislative intent. [Citation.]”
[Citation.] We construe the statute’s words in context, and harmonize statutory
provisions to avoid absurd results.’ [Citation.]” (Ibid.)
We observe that appellate courts discussing the bypass provisions generally have
stated that “denial of reunification services is mandatory, not discretionary, with respect
to nearly all of the bypass provisions. . . .” (In re A.E. (2019) 38 Cal.App.5th 1124, 1141,
italics omitted; In re Christopher L. (2020) 56 Cal.App.5th 1172, 1189.) Additionally,
former versions of California Rules of Court, rule5 5.695, which regulated the application
of section 361.5, contained language suggesting that juvenile courts could not order
reunification services if the whereabouts of the parents were unknown despite a diligent
search. (See former rule 1456(f)(7)6 [“the court shall not order reunification services” in
such circumstances]; former rule 5.695(h)(9) [amended language to state “the court may
5 All further rule references are to the California Rules of Court.
6 Rule 1456 was renumbered rule 5.695 and amended, effective Jan. 1, 2007.

-- 6 of 12 --

7
not order reunification services”].) Effective 2017, this language has been removed
altogether and is not reflected in the current version of the rule. (Rule 5.695(f).) The
broad language in the bypass provision opinions, coupled with the various amendments
to rule 5.695, appear to have created some confusion regarding the juvenile court’s
authority to order reunification services when a parent cannot presently be located.
However, applying the well-established principles of statutory construction
applicable to the dependency statutes as described in Damian L., we construe the
language of section 361.5, subdivision (b)(1), to grant the juvenile court discretion to
grant or deny reunification services on clear and convincing evidence that a parent cannot
be located after a diligent search.
Contrary to the language of former rule 5.695, at no time since its enactment in
1986 has section 361.5, subdivision (b)(1), directed the juvenile court that it “may not” or
“shall not” order reunification services to a parent who cannot presently be located.
(Stats. 1986, ch. 1122, § 13, pp. 3972, 3984-3985.) Section 361.5, subdivision (b)(1), has
consistently stated that, in such circumstances, the court “need not” order reunification
services. The Legislature expressed its clear intent in the plain language of the statute to
defer the question of whether reunification services should be provided to the juvenile
court by choosing the phrase “need not” provide reunification services, as opposed to
“shall not” provide such services in section 361.5, subdivision (b)(1). “The word ‘shall,’
when used in a statute, is ordinarily construed as mandatory or directory, as opposed to
permissive. . . .” (Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 551.)
A comparison of section 361.5, subdivision (b)(1) with section 361.5, subdivision
(c), provides further evidence of legislative intent here, as the Legislature chose to
employ the directory phrases “shall” and “shall not” in later sections of the same statute.
Specifically, in the subdivision immediately following section 361.5, subdivision (b)(1),
the Legislature identified other circumstances when reunification services “shall” or
“shall not” be bypassed, none of which apply to a parent who cannot be located under

-- 7 of 12 --

8
section 361.5, subdivision (b)(1). Section 361.5, subdivisions (c)(2) and (c)(3), state that
“[t]he court shall not order reunification” for any parent defined under subdivisions (b)(3)
through (17) unless other countervailing evidence is established. (Id., italics added.)
Subdivision (b)(1) is not included in subdivisions (c)(2) and (3), from which we conclude
that the Legislature did not intend to make the denial of reunification services mandatory
for parents whose location are unknown.
“We must assume . . . that the Legislature’s choice of words was not an idle
act . . . .” (County of Alameda v. Workers’ Comp. Appeals Bd. (Knittel) (2013) 213
Cal.App.4th 278, 284-285.) Had the Legislature intended to make bypass of reunification
services mandatory when the parents’ whereabouts are unknown, it would have simply
employed the phrases “shall’ and “shall not” under section 361.5, subdivision (b)(1), as it
did elsewhere in the statue. That the Legislature did not do so demonstrates its intent to
vest the juvenile courts with discretion to grant or bypass reunification services in that
specific circumstance. (See, e.g., In re J.M. (2020) 44 Cal.App.5th 707, 715-716
[different choice of words within the same statute illustrates Legislative intent].)
We therefore conclude that, subject to the juvenile court’s finding that the
requirements under section 361.5, subdivision (b)(1), were met, Baby Girl R. was not
entitled to an automatic bypass of reunification services for S.R. as a matter of law.
Under the statute, the decision to grant or deny reunification services remained within the
juvenile court’s discretion.
C. The Juvenile Court Did Not Err in Ordering Reunification Services for
S.R.
We next consider whether the juvenile court erred when it ordered reunification
services for S.R. Baby Girl R. contends the order was “not a wise exercise of [the
court’s] discretion.”
Appellate courts disagree on the appropriate standard of review applicable to
appeals considering the bypass provisions under section 361.5. Some cases have applied

-- 8 of 12 --

9
an abuse of discretion standard (In re Baby Boy H. (1998) 63 Cal.App.4th 470), while
others employ a substantial evidence standard (Jennifer S. v. Superior Court (2017) 15
Cal.App.5th 1113, 1121; In re Harmony B. (2005) 125 Cal.App.4th 831, 839).7
Baby Girl R. has not shown that the juvenile court erred in exercising its discretion
to order reunification services, whether under the substantial evidence or abuse of
discretion standard. The evidence established that S.R.’s substance abuse and mental
health issues led to the removal of Baby Girl R. from her care. The Department informed
the court it was able to create a case plan to address these issues for S.R., despite her
absence from the proceedings. The Department was in contact with S.R.’s family
members who wanted S.R. to receive reunification services and who wanted Baby Girl R.
to stay within the family. The Department continued to actively search for S.R., which
meant that if she was found before the six-month review hearing, services could
commence immediately for S.R. without further delay. Accordingly, the court’s order is
supported by substantial evidence; nor has Baby Girl R. shown the juvenile court’s order
to be arbitrary, capricious or whimsical. (See Cahill v. San Diego Gas & Electric Co.
(2011) 194 Cal.App.4th 939, 957; Landry v. Berryessa Union School Dist. (1995)
39 Cal.App.4th 691, 699-700.)8
7 Citing In re I.W. (2009) 180 Cal.App.4th 1517 (I.W.), overruled in part on
another ground in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7 (O.B.), Baby
Girl R. argues that “where the issue on appeal turns on a failure of proof at trial, the
question for a reviewing court becomes whether the evidence compels a finding in favor
of the appellant as a matter of law.” (I.W., at p. 1528.) This standard applies when the
trier of fact finds that the party with the burden of proof did not carry her burden and that
party appeals. (Ibid.) Here, as the party seeking bypass, Baby Girl R. had the burden
proof. (§ 361.5, subd. (b); In re Angelique C. (2003) 113 Cal.App.4th 509, 521,
overruled in part on another ground in O.B., at p. 1010, fn. 7; see Evid. Code, § 500.)
The court found, by clear and convincing evidence, that S.R.’s whereabouts were
unknown despite the Department’s reasonable efforts to locate her, satisfying Baby Girl
R.’s burden of proof. But as discussed, infra, the juvenile court, despite that finding, was
not required to bypass reunification services as a matter of law.
8 Based on our conclusion, we do not reach the Department’s argument that if the
juvenile court erred, such error was harmless.

-- 9 of 12 --

10
III. DISPOSITION
The August 30, 2023 disposition order granting family reunification services to
S.R. is affirmed.

-- 10 of 12 --

__________________________
Greenwood, P. J.
WE CONCUR:
__________________________
Bamattre-Manoukian, J.
_________________________
Wilson, J.
H051362
Santa Clara County Dept. of Family & Children’s Services
v. Baby Girl R.

-- 11 of 12 --

Trial Court: Santa Clara County Superior Court
Superior Court No.: 23JD027536
Trial Judges: The Honorable Rafael A. Sivilla-Jones
Attorney for Appellant
Baby Girl R.: Leslie A. Barry
under appointment by the Court of
Appeal for Appellant
Attorneys for Plaintiff and Respondent Tony LoPresti,
County of Santa Clara County Counsel
Department of Family
and Children’s Services: Kavita Narayan,
Chief Assistant County Counsel
Laura E. Underwood,
Deputy County Counsel
H051362
Santa Clara County Dept. of Family & Children’s Services
v. Baby Girl R.

-- 12 of 12 --