Filed 4/6/22 In re Xavier M. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEAL from an order of the Superior Court of Los Angeles County, Debra R. Archuleta, Judge. Affirmed.

Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and Appellant.

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

_________________________

Brittany H. (mother) appeals from a juvenile court order denying her Welfare and Institutions Code[1] section 388 petition seeking the return of her son, Xavier M., to her care or, alternatively, the reinstatement of her reunification services. Mother contends the juvenile court abused its discretion by denying her petition; she further contends the court erred by denying her requests for a contested section 366.26 hearing and for a bonding study.

We conclude the juvenile court did not abuse its discretion by denying the section 388 petition because the evidence before the juvenile court did not compel a finding that mother’s circumstances had changed materially or that granting the petition was in Xavier’s best interests. We further conclude that even if the juvenile court erred by denying mother’s request for a contested hearing and a bonding study, any error was not prejudicial. We therefore will affirm the juvenile court’s order.

FACTUAL AND PROCEDURAL BACKGROUND

I. Background.

Xavier was born in May 2011.[2] He initially came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) in September 2014 because of a domestic violence incident between mother and her boyfriend, Benedicto A. DCFS closed the 2014 referral after mother obtained a restraining order against Benedicto and assured DCFS she would not resume a relationship with him. DCFS received a second referral in December 2015, alleging that Xavier had been present during a subsequent violent incident between mother and Benedicto. Mother reported that Benedicto hit her on her face and neck, and Xavier said Benedicto pushed and shoved mother. Benedicto was arrested for violating the 2014 restraining order.

Mother said she had been in contact with Benedicto for about six months because she was trying to work things out with him. She claimed there had been only two incidents of domestic violence between them. Four‑year‑old Xavier confirmed he had been present during the most recent incident, and he said he had been scared but not hurt. Xavier also said that when he misbehaved, mother hit him with a belt or a hanger. Mother denied hitting Xavier with a hanger and said she had not hit him with a belt recently.

DCFS filed a juvenile dependency petition on February 4, 2016. As subsequently amended, the petition alleged that Xavier was a juvenile court dependent pursuant to section 300, subdivision (b) because (1) in December 2015, mother’s boyfriend struck mother in the face and neck in Xavier’s presence, and mother subsequently violated a criminal protective order prohibiting contact between mother and her boyfriend (count b‑1), and (2) on prior occasions, mother used inappropriate discipline by striking Xavier’s buttocks with a belt (count b‑2).

The juvenile court ordered Xavier detained from mother and placed in foster care. He subsequently was placed in the home of his maternal grandmother, who lived with the maternal great‑grandmother and maternal aunts (mother’s younger sisters).

II. Jurisdiction and disposition.

On May 26, 2016, mother pled no contest to the amended allegations of the petition, and the juvenile court sustained the allegations of the petition as amended. The court declared Xavier a juvenile court dependent and found, by clear and convincing evidence, that Xavier could not safely be returned home. The court ordered Xavier removed from mother and placed in DCFS custody. Mother was ordered to participate in a support group for victims of domestic violence, complete a parenting class, and participate in individual counseling to address case issues. She was permitted monitored visits with Xavier.

III. Six and 12-month review; termination of mother’s family reunification services.

In November 2016, DCFS reported that Xavier was thriving in his grandmother’s home. Mother visited Xavier regularly but had not yet enrolled in any court‑ordered services and was not in regular contact with DCFS. She was evasive about where she was living and would not allow DCFS to visit her at home. DCFS thus recommended that mother’s reunification services be terminated.

At the six‑month review hearing on November 16, 2016, the juvenile court ordered DCFS to provide mother with an additional six months of reunification services.

In May 2017, DCFS reported that Xavier continued to do well in his grandmother’s home, but he was performing below grade level at school and was not seeing a doctor or dentist regularly. Mother had enrolled in parenting classes and had attended two classes. She continued to visit Xavier regularly. DCFS again recommended that mother’s reunification services be terminated.

At the 12‑month review hearing in May 2017, the juvenile court found that mother had not made significant progress in resolving the problems that led to Xavier’s removal and had not demonstrated the capacity to complete the objectives of the case plan. The court therefore terminated mother’s reunification services, set a section 366.26 hearing for November 2017, and ordered DCFS to conduct an adoption home study. Mother was granted monitored visitation with Xavier twice per week.

IV. Attempts to finalize Xavier’s adoption; removal of Xavier from maternal grandmother’s home.

In September 2017, DCFS advised the court that the maternal grandmother wished to adopt Xavier and that additional time was needed to collect the necessary documentation and finalize the adoption paperwork. The court continued the hearing to January 2018. It thereafter continued the section 366.26 hearing five more times, (to May 2018, September 2018, January 2019, April 2019, and August 2019) due to the maternal grandmother’s health issues, her failure to provide DCFS with required documentation, and the failure of the maternal aunts, who lived in the home, to Live‑Scan. Further, DCFS increasingly expressed concerns about the cluttered and dirty condition of the maternal grandmother’s home, grandmother’s failure to ensure that Xavier received regular medical and dental care, and domestic violence between grandmother and her boyfriend.

V. Xavier’s placement with Tamara T.

In June 2019, Xavier was removed from the maternal grandmother’s home and placed in foster care. In July 2019, he was placed with his godmother, Tamara T., who was living with her boyfriend, his sisters, and his parents.

Shortly before Xavier was removed from his grandmother’s home, mother told the children’s social worker (CSW) that she had not reunified with Xavier because she was struggling to pay rent, had a demanding job, and had been struggling to find a purpose to comply with court orders. However, she said she had never missed a visit with Xavier except when she was sick. She claimed to have been living with Tamara, and while she said she remained in contact with Benedicto, she said they were “just friends.” Tamara, however, said mother had never stopped seeing Benedicto and was living with him.

In July 2019, mother told DCFS that she and Benedicto had married and had moved into the maternal great‑grandmother’s home.

In November 2019, DCFS reported that Xavier had adjusted well to his new placement, and Tamara was willing to adopt him if he did not reunify with mother. Xavier continued to work well below grade‑level, but Tamara had gotten him a tutor and was working with him on reading.

In May 2020, DCFS said mother continued to visit Xavier regularly, but she did “not utilize the entire time she is approved to visit the child.” Xavier understood he was going to be adopted and said he was okay with that. He was described as generally well adjusted, but he was struggling academically and had tantrums when doing homework.

In August 2020––three years after the juvenile court terminated her reunification services––mother told the CSW she was completing court‑ordered services in order to reunify with Xavier. Mother’s service provider confirmed that mother had completed a parenting class and had enrolled in a 12‑week domestic violence program. However, mother had not disclosed to the provider her history of domestic violence with her new husband. Because of mother’s and Benedicto’s on‑going relationship, the service provider said mother should complete a 52‑week domestic violence program.

In November 2020, DCFS reported that Tamara’s boyfriend and his family had become resentful of Xavier’s presence in their home, and Tamara and Xavier therefore had moved out and were living with Tamara’s mother. Tamara ensured that Xavier had regular medical and dental care, and she had initiated an evaluation of Xavier by the Regional Center. In December 2020, Tamara enrolled Xavier in a new school that offered in‑person instruction and small classes to address his educational needs.

VI. Mother’s section 388 petition; DCFS’s response.

Mother gave birth to a baby girl in November 2020. The same month, she filed a section 388 request to change court order. She asserted that she had completed a parenting class in June 2020 and a domestic violence program in September 2020. She was currently enrolled in individual counseling and visited regularly with Xavier. Her husband, Benedicto, had also enrolled in and completed a domestic violence program. Mother and Benedicto had a stable income and housing. Mother therefore requested that Xavier be returned to her care or, in the alternative, that her reunification services be reinstated.

The CSW made an unannounced visit to mother’s and Benedicto’s home on December 29, 2020. The CSW observed three oval shaped bruises on mother’s neck and smelled marijuana in the home. The house was cluttered and dirty. Mother was upset that the visit had not been scheduled and said she was not willing to permit a home assessment because she was angry that the CSW had reported her to the court and had spoken to her service providers. Mother refused to allow the CSW to check inside the bedrooms or garage. When the CSW said she would need to access the entire home, mother said she needed the permission of the maternal great‑grandmother, who owned the home. Mother then reported that the great‑grandmother would not allow the CSW to enter the home because she disliked her.

The CSW told mother that if she was attempting to reunify with Xavier, DCFS would be required to supervise her and anyone else living in the home, and to assess her newborn daughter. Mother was upset to receive this information and said she would have to talk to her husband.

On January 7, 2021, the CSW called mother and offered to conduct an assessment of the home that afternoon. Mother said she was not available that day because the maternal grandmother had died of Covid‑19 several days earlier. Mother and the CSW had a lengthy conversation, during which the CSW told mother she was concerned that mother had waited four years before attempting to reunify. Mother said she had not completed programs sooner because she could not afford to pay for classes and because the maternal grandmother and aunts had told her she no longer had any rights to Xavier.

On January 8, 2021, DCFS received a general neglect referral as to mother’s newborn baby girl. A social worker came to the home and observed many cars parked outside, but no one answered the door. When the social worker called mother, she said she was not at home.

On January 15, 2021, Tamara said mother’s communication with Xavier had diminished over time; mother did not call regularly, was late for visits, and had to be reminded to attend visits. Since the last court hearing, however, mother had been consistent with her visits. Xavier said he liked living with Tamara and did not want to leave her home. He said he loved both Tamara and his mother.

Benedicto told the CSW that he had not used marijuana in over a year, but on January 15, 2021, he tested positive for marijuana. When confronted with the results, Benedicto said he had not been truthful, and that he smoked at night before going to bed. Mother also drug‑tested; she initially provided a diluted urine sample, and subsequently tested positive for marijuana.

DCFS interviewed Benedicto on February 2, 2021. He said he and mother had been in a committed relationship on and off for over 10 years. He said he and mother used to fight due to accusations of infidelity, but they had learned to walk away. He recently had been hired as an apprentice trainee electrician. He said he and mother planned to reside permanently with the maternal great‑grandmother, with whom they lived rent‑free.

The Sheriff’s Department reported that Adult Protective Services had received reports concerning mother’s home four times between June 2018 and July 2019. In July 2019, the maternal great‑grandmother had reported that her granddaughter was yelling at her and banging on her bedroom door.[3] Law enforcement call logs further indicated that law enforcement had been called to the home five times between May and October 2020 because men reportedly were “hanging out” and smoking marijuana.

Based on the foregoing, DCFS recommended that mother’s section 388 petition be denied. It noted that mother had not been forthcoming with DCFS about her relationship with her husband, her marriage, and her pregnancy, and although mother claimed to want to have Xavier returned to her, she refused to allow her home to be assessed. Further, Xavier “has been out of his mother’s care for just about 5 years . . . . He has sadly gone through so much misfortune at such a young age at the hand of others. Currently, [Xavier] will be turning 10 years old in a couple of months and finally in a stable and safe environment. . . . Xavier has expressed [and has been observed to be] bonded to [Tamara]. Fortunately, [Tamara] has been all around honest and forthcoming with the Department. She has taken it upon herself to make it her mission to ensure [Xavier] is well treated, protected, and his needs are met. [Tamara] has also taken the initiative to restore her relationship with Xavier’s biological mother . . . [to] preserve [Xavier’s] relationship [with mother] while nurturing and protecting his safety to eliminate any worry of re‑exposure to trauma. [¶] Therefore, the Department cannot support [mother’s] petition for release of [Xavier] to [mother’s] care or further Family Reunification Services. The Department continues to recommend adoption as the most appropriate alternative plan for [Xavier].”

VII. Section 388 hearing.

A. Mother’s testimony.

Mother testified at the section 388 hearing on February 4 and 5, 2021. She said she had not enrolled in services earlier because she had believed she did not have parental rights after her reunification services were terminated. When Xavier was removed from the maternal grandmother, mother found out she could still engage in reunification services, and so she enrolled. She learned about her eligibility for services in about June 2019, and she enrolled in a parenting class in November 2019. She completed the parenting class in April 2020, and a domestic violence class in October 2020. When she was told the 12‑week domestic violence class was insufficient, she reenrolled in another 12‑week program in January 2021. Her husband also completed a 12‑week domestic violence class and had just reenrolled in another 12‑week class. Mother said she visited Xavier twice per week for four hours each time.

Mother said the last domestic violence incident between herself and her husband was in 2015. She did not agree that she had any bruising on her neck when the CSW came to the home in December 2020. Mother said she had not allowed the CSW to assess her home in December 2020 because she had just found out her mother had Covid and likely would not live longer than a week. Mother said the great‑grandmother asked the CSW to leave because she “was not prepared or ready to deal with that situation at that time.” Mother said the CSW made only one attempt to conduct a home visit and had refused to schedule a visit at a different time.

Mother believed it was in Xavier’s best interests to be returned to her care because things “are completely different than when they were back in 2015.” She and her husband had rehabilitated as a couple, had a family, and had a safe place to live. Her husband was employed as an electrician. Mother therefore believed they could give Xavier stability and a loving home.

On cross‑examination, mother agreed that although she had learned in 2019 that she still could reunify with Xavier, she did not complete her programs until 2020. She also agreed that on the day the CSW attempted to do a home visit, she had not disclosed that her mother had Covid. To the contrary, when asked whether anyone in the family had tested positive for Covid, mother said no. Mother claimed the CSW said she would call later in the day if she had time to do a home visit, but she never did.

Mother conceded that she had not told the CSW in May 2019 that she and her husband continued to be involved romantically, but she said she had revealed they were still friends and were in communication. They were married in June 2019. Mother agreed that the domestic violence program director was of the opinion that mother should attend a 52‑week domestic violence program.

Mother began therapy in July 2020, and completed it in November 2020. She attended 11 sessions. At the end of the eleventh session, the therapist recommended that mother continue to engage in therapy, but she was not currently enrolled.

Mother did not agree that law enforcement had been called out to her house at least five times due to men hanging out drinking and smoking marijuana. Mother claimed law enforcement had been called out to her neighbors’ residences, not to hers.

B. Court’s order denying section 388 petition.

At the conclusion of mother’s testimony, the court denied her section 388 petition. The court noted that mother and Benedicto had been involved in two DCFS cases involving domestic violence, the first in 2014 and the second in 2015. Xavier was only four years old when he was placed in foster care, and he therefore had been out of his mother’s care for half his life. Further, mother had tried to cover up her relationship with Benedicto, her pregnancy, and her daughter’s birth. The court also expressed concerns about the law enforcement calls to mother’s home.

Based on these facts, the court said it did not believe that circumstances had changed sufficiently to have Xavier return to mother’s care or that doing so would be in his best interests. The court noted that mother continued to be in a relationship with her former abuser, and that Xavier seemed to be stable and happy in his current placement. Further, the court said, it believed circumstances had gotten worse over time, and any change in circumstances had not inured to the benefit of mother or Xavier. The court thus denied the section 388 petition.

Mother’s counsel objected to the court’s findings. Counsel then requested that the pending section 366.26 hearing be set for contest, and that the court order a bonding study. DCFS’s counsel objected to mother’s request for a contested section 366.26 hearing, arguing that the request was not timely and mother had not made an offer of proof. Mother’s counsel stated that the offer of proof was based on mother’s testimony and her regular visitation with Xavier.

The court found that the beneficial parental relationship exception was not sufficiently fleshed out to warrant a contested hearing. It said: “I found mother deceptive during the hearing, I found her evasive during the hearing, I found her withholding information from the court during the hearing. I understand she might have been nervous, but there was a lot more going on than her being nervous. I do not believe necessity for [a] contested hearing has been met. . . . I find the offer of proof is insufficient. And I’m declining to hold the contest for the next court date.”

Mother timely appealed from the February 5, 2021 order.

DISCUSSION

Mother contends the juvenile court erred in denying her section 388 petition because she demonstrated that her circumstances had changed and that it was in Xavier’s best interests to be returned to her care. She further contends the juvenile court erred in denying her requests for a contested section 366.26 hearing and for a bonding study.

I. The juvenile court did not abuse its discretion by denying mother’s section 388 petition.

A party may petition the court under section 388 to change, modify, or set aside a previous court order. The petitioning party has the burden to show, by a preponderance of the evidence, that (1) there is a change of circumstances or new evidence, and (2) the proposed change is in the child’s best interests. (§ 388.)

“Whether the juvenile court should modify a previously made order rests within its discretion, and its determination may not be disturbed unless there has been a clear abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318).) ‘. . . “[‘]The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ ” ’ (Id. at pp. 318–319.)” (In re J.C. (2014) 226 Cal.App.4th 503, 525–526.)

Mother contends the juvenile court erred in finding no new evidence or changed circumstances because she had completed a parenting program and individual counseling, she and Benedicto had completed domestic violence programs, and there was no evidence of recent domestic violence between her and Benedicto. DCFS disagrees, noting that mother had married a man who had physically abused her, prioritized her relationship with her husband over Xavier, and continued not to be forthcoming with DCFS.

We agree with mother that she demonstrated some changed circumstances––namely, she had completed a parenting program, a domestic violence program, and had attended individual therapy. Thus, mother appeared to have made some meaningful efforts to address the issues that led to Xavier’s removal from her custody. However, “ ‘[n]ot every change in circumstance can justify modification of a prior order.’ (In re S.R. (2009) 173 Cal.App.4th 864, 870.)” (In re N.F. (2021) 68 Cal.App.5th 112, 120.) Instead, the change in circumstances supporting a section 388 petition must be “material.” (In re N.F., at pp. 120–121.)

Here, the evidence was insufficient to compel a finding of materially changed circumstances as a matter of law. (See In re I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved on other grounds in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1003, fn. 4 [“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”].) As the juvenile court noted, mother remained in a relationship with Benedicto, with whom she had a history of domestic violence, and the bruising the CSW observed on mother’s neck during an unannounced home visit in December 2020 suggested that domestic violence may still have been an issue in their relationship. Further, while mother is correct that there had been no documented domestic violence between mother and Benedicto since 2015, mother had had little contact with DCFS after 2017, and thus it is not clear that DCFS would have been able to discern any ongoing violence in the relationship. Indeed, mother’s reluctance to allow DCFS to assess her home suggests that mother had something to hide. We therefore cannot conclude that the evidence compelled a finding of materially changed circumstances.

The juvenile court also did not err in concluding that granting mother’s section 388 petition was not in Xavier’s best interests. At the time of the section 388 hearing, Xavier had been in a stable placement with Tamara for more than a year. Tamara provided a loving home for Xavier, was addressing his educational challenges, and wanted to adopt him. Xavier said he loved Tamara and wanted to continue living with her. While Xavier also loved his mother and looked forward to spending time with her, it is far from clear mother could have provided him with permanency. DCFS had not been able to assess mother’s home due to mother’s intransigence, and the frequent calls to law enforcement and the indications of possible continuing domestic violence between mother and Benedicto suggested that mother’s home may not have been a safe place for Xavier. For all of these reasons, the juvenile court did not abuse its discretion in concluding that returning Xavier to mother or reinstating her family reunification services was not in Xavier’s best interests.

We recognize that an August 16, 2021 minute order of which mother seeks judicial notice reveals that about six months after the juvenile court denied mother’s section 388 petition, Tamara told DCFS she no longer was willing to offer Xavier a permanent home, and the court directed DCFS to investigate an alternative placement for Xavier. These facts may support a subsequent section 388 petition, but they do not provide a basis for reversing the February 5, 2021 order. (See In re Zeth S. (2003) 31 Cal.4th 396, 405–414 [Court of Appeal may not look to postjudgment evidence outside appellate record to reverse juvenile court’s order].) We therefore will deny mother’s request for judicial notice of the August 16, 2021 minute order. We express no opinion on the propriety of granting a future section 388 petition in light of these and other facts.

II. Any error in denying mother’s requests to set the pending section 366.26 hearing for contest and for a bonding study was harmless.

Mother contends that the juvenile court erred in refusing to set the pending section 366.26 hearing for contest because she made a sufficient offer of proof. (§ 366.26, subd. (c)(1)(B)(i).) We decline to consider this issue because any error in denying mother’s request was harmless. The juvenile court’s refusal to set the April 12, 2021 hearing for contest could have been prejudicial only if the court terminated mother’s parental rights at that hearing. There is no evidence in the appellate record that it did so. To the contrary, subsequently‑issued minute orders suggest that the court continued the section 366.26 hearing scheduled for April 12, 2021 to August 16, 2021, and then to December 13, 2021 and April 8, 2022.[4] We do not know whether the April 8 hearing will go forward as scheduled or if DCFS will request termination of mother’s parental rights. If DCFS does recommend termination of parental rights in advance of the April 8, 2022 hearing, mother will have an opportunity to request that the matter be set for contest at that time.

We reach a similar conclusion with regard to mother’s request for a bonding study. If DCFS recommends that mother’s parental rights be terminated at some point in the future, then a bonding study may be relevant to mother’s contention that the beneficial parental relationship exception to adoption applies. (§ 366.26, subd. (c)(1)(B)(i) [parental rights should not be terminated if the court finds that termination would be detrimental to the child because a parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship].) However, a section 366.26 hearing has not yet occurred, and it is not known whether DCFS will recommend that mother’s parental rights be terminated in the future. Accordingly, mother cannot demonstrate that she was prejudiced by any error in denying her request for a bonding study.

DISPOSITION

The February 5, 2021 order is affirmed. Mother’s request for judicial notice is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

EGERTON, J.

LIPNER, J.*

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

[2] Xavier’s father is unknown.

[3] It is not clear whether the granddaughter referenced in the report is mother or another family member.

[4] On its own motion, the court takes judicial notice of minute orders issued by the juvenile court on April 12, 2021, August 16, 2021, and December 13, 2021.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.