In re L.E. CA2/6 ( 2021 )

Filed 5/20/21 In re L.E. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
In re L.E., a Person Coming 2d Juv. No. B307117
Under the Juvenile Court Law. (Super. Ct. No. 19JV00290)
(Santa Barbara County)
SANTA BARBARA COUNTY
DEPARTMENT OF SOCIAL
SERVICES,
Plaintiff and Respondent,
v.
S.A.,
Defendant and Appellant.
Mother appeals the denial without an evidentiary hearing
of her petition pursuant to Welfare and Institutions Code section
388. 1 We affirm.
All statutory references are to the Welfare and
1
Institutions Code unless otherwise stated.
FACTS
L.E. was born in April 2019. On July 31, 2019, the Santa
Barbara Department of Social Services (DSS) received a call from
Santa Barbara Cottage Hospital. Hospital personnel told DSS
that L.E. had been brought to the emergency room for excessive
irritability on four prior occasions. On each occasion, L.E. had
bruising the parents could not explain. Finally, the child was
admitted to the hospital and tests were ordered. The tests show
L.E. had three fractured ribs in various stages of healing and a
fractured skull. That L.E.’s ribs showed various stages of healing
indicated that the injuries were inflicted over a period of time.
Again the parents could not explain L.E.’s injuries.
Detention Hearing
On August 2, 2019, DSS filed a juvenile dependency
petition. The petition alleged the juvenile court had jurisdiction
under section 300, subdivision (a); the child suffered serious
physical harm nonaccidentally inflicted by the child’s parent; and
failure to protect under section 300, subdivision (b)(1). Later
DSS filed an amended petition alleging severe physical abuse of a
child under five years old under section 300, subdivision (e).
The juvenile court ordered that L.E. be detained out of the
parents’ home and the matter be set for a jurisdictional hearing.
Jurisdictional Hearing
At the jurisdictional hearing, DSS relied on section 355.1,
subdivision (a). The section provides where a court finds that an
injury sustained by a minor would ordinarily not be sustained
except as a result of the unreasonable or neglectful acts or
omissions of either parent, the finding shall be prima facie
evidence of jurisdiction.
2
DSS also filed a jurisdictional report. Mother reported that
she had known Father since she was a child, but they became
romantically involved two years ago. She described their
relationship as good. They were always with L.E. and her
daughter, J.A.2
Father tested positive for methamphetamine. Mother said
she did not think he was using and that things can go wrong with
the test. She never saw him use drugs.
Mother said she never saw Father hurt L.E., and she does
not think he would do something like that. She said she thinks
L.E. was born that way. She said only that she and Father take
care of the child. She is the primary caregiver. She occasionally
leaves L.E. with Father to go to the store or take a shower.
Father is good with kids.
Mother testified that she was a victim of domestic violence
perpetrated against her by J.A.’s father, and that she would
never tolerate violence by Father. She admitted, however, that
she knew before she became romantically involved with Father
that he had at least one conviction for domestic violence.
Father asked a DSS worker why he was ordered to go to a
drug program if he never used drugs. The worker told Father
that he tested positive for methamphetamine. Father said that
no one told him. He had been told in open court. Father insisted
he never used drugs.
Father stated multiple times that he does not know how
L.E. was injured. He said Mother is a good mother and takes
good care of L.E.
2DSS originally detained J.A., who was eight years old,
along with L.E. J.A. was subsequently returned to Mother’s
custody and is not a party to this appeal.
3
Father has a criminal history of multiple convictions for
battery on a spouse. He confirmed that he is on probation and
that his ex-girlfriend has a restraining order against him.
Dr. Drew Kelts told a DSS worker that he is very concerned
about L.E.’s safety. If he had not caught L.E.’s injuries when he
did, it is likely L.E. would be dead. He said, “[T]he kid had been
beaten up quite a bit.”
The juvenile court found that the allegations of the
amended petition to be true, and that L.E. is a child described in
section 300, subdivisions (a), (b)(1), and (e). The matter was set
for a disposition hearing.
Disposition Hearing
The juvenile court held a disposition hearing in March
2020.
DSS reported that it had received a copy of a police report.
Mother told the police that she had been battered by Father on
December 24, 2019. Mother told the police that she and Father
spent the day together. When they got to her home, Father
became angry because he thought she was looking at another
man. Father grabbed her hair and pulled her down, striking her
head on a table. He then choked her and tried to rape her before
fleeing her home. Mother said she was no longer in a
relationship with Father, but they were sexually active. She told
the police that L.E. had been detained by DSS due to injuries
caused by Father. The police located Father and arrested him.
Mother did not volunteer information about the December
24, 2019, incident when she met with a DSS worker in January
2020. It was only when the DSS worker told Mother she was
aware of the incident that Mother admitted it occurred.
4
Mother testified that she took L.E. to the doctor on multiple
occasions because he was fussy, not eating, and bruised. It was
not until L.E. was finally hospitalized that Mother learned he
had sustained fractures to his ribs and skull.
Mother testified she ended her relationship with Father in
October 2019, in part because of the allegations in this case. But
she resumed a physical relationship with him in December
because she was lonely and sad.
The incident of December 24 changed her view of Father,
and she has accepted that Father was responsible for the injuries
to L.E.
The juvenile court found that L.E. suffered severe physical
abuse inflicted by Father, and that Mother knew or should have
known of the abuse. The court found by clear and convincing
evidence that reunification services need not be provided
pursuant to section 361.5, subdivision (b)(5). The court further
found that Mother had not shown that services would prevent
re-abuse or that it would be detrimental to L.E. if Mother was not
provided services. The court ordered that services would not be
provided to Mother, and set the matter for a hearing pursuant to
section 366.26.
Section 388 Petition
In June 2020, Mother filed a petition pursuant to section
388, requesting that the juvenile court modify its order denying
reunification services. Mother’s petition alleged that there had
been a change of circumstances. She had completed courses on
parenting and domestic violence. She was also in counseling and
had worked through hurdles to become more assertive in
relationships.
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Mother attached to her petition certificates of completion
for the parenting and domestic violence courses. She also
attached a letter from her therapist. The letter stated in part:
“In treatment, [Mother] has been working on identifying
patterns of abuse throughout her life, understanding the cycle of
abuse in relations to domestic violence, strengthening parenting
skills, increasing insight around how her culture has impacted
her relationship choices, and learning assertiveness skills in
order to set effective interpersonal boundaries. Through
Cognitive Behavioral Therapy (CBT), [Mother] is learning to
restructure destructive cognitive distortions that have led to poor
decision making in terms of choosing romantic partners. CBT
has allowed [Mother] to recognize how her thinking patterns can
be harmful at times and she has made significant progress in
reframing these in order to make healthier decisions in the
future.
“It is worth noting that [Mother’s] culture also plays a
significant role in her psychology. In many Latino cultures,
males are seen as the head of the household and are rarely
questioned, making it difficult for [Mother] to assert herself in
her relationship. [Mother] has been exploring how her cultural
upbringing influenced her view of relationships and her role in
them. She is learning effective assertiveness skills on order to
recognize her rights as a partner, and human being in general,
and communicate these in a productive way.”
Mother alleged in her petition that L.E. will benefit in the
long term by preserving a relationship with his natural parent
and sibling, and that Mother can now provide a safe and
nurturing environment for L.E. Mother requested that L.E. be
placed with his maternal aunt and uncle while reunification
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services are provided, or permanently if the request for
unification is denied.
The juvenile court denied Mother’s section 388 petition.
The court found that the petition shows only changing
circumstances, not changed circumstances required for relief
under section 388. The court denied Mother an evidentiary
hearing on her petition.
The juvenile court later denied the maternal aunt’s section
388 petition requesting custody of L.E. Mother appealed from
the denial of both her section 388 petition and the maternal
aunt’s petition. Mother raises no issues relating to the denial of
the maternal aunt’s section 388 petition.
DISCUSSION
Mother contends the juvenile court abused its discretion in
denying her section 388 petition without an evidentiary hearing.
Section 388, subdivision (a)(1) allows a parent of a child
who is a dependent of the juvenile court to petition to change,
modify, or set aside any order of the court on the grounds of
changes of circumstances or new evidence.
A parent’s petition must show a prima facie case before she
is entitled to an evidentiary hearing. (In re G.B. (2014) 227
Cal.App.4th 1147, 1157.) In determining whether the petition
makes the necessary showing, the court may consider the entire
factual and procedural history of the case. (In re Jackson W.
(2010) 184 Cal.App.4th 247, 258.) The parent must show both a
change of circumstance and that the order being sought is in the
best interest of the child. (In re Zachary G. (1999) 77 Cal.App.4th
799, 806 [no evidentiary hearing required unless parent makes
prima facie showing of both change of circumstances and best
interest of the child].)
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(a) Change of Circumstances
Here Mother’s petition alleged a change of circumstances
due to completion of domestic violence and parenting courses and
participation in behavioral therapy.
The juvenile court found Mother’s petition did not show a
change of circumstances, only changing circumstances. Her
therapist’s letter uses such terms as “working on,” “increasing
insight,” “learning,” and “significant progress.” The letter refers
to “patterns of abuse throughout [Mother’s] life” and that her
“culture plays a significant role in her psychology.” The tenor of
the letter is that Mother is in the process of becoming a person
who is capable of protecting herself and her child, but the process
is not complete. Indeed, it would be naïve to conclude that a life-
long pattern of thinking supported by cultural factors can be
reversed by a handful of courses and a few months of therapy.
(b) Best Interest of the Child
When, as here, the juvenile court bypasses reunification
services due to a finding that the child suffered severe physical
abuse (§ 300, subd. (e)), the presumption is that services are not
to be provided to a parent. (In re G.B., supra, 227 Cal.App.4th at
p. 1157.) When that presumption applies, a juvenile court may
modify an order denying reunification services, only if there is
clear and convincing evidence that the services would be in the
child’s best interest. (Ibid.)
In assessing the best interest of the child, the juvenile court
looks to three factors: (1) the seriousness of the reason for
detention, (2) the strength of the existing bond between the
parent and child, and (3) the degree to which the problems that
led to detention can be and have been addressed. (In re
Kimberly F. (1997) 56 Cal.App.4th 519, 530-532.)
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The reason for L.E.’s detention was most serious. He had
fractured ribs and a fractured skull. L.E.’s doctor told a DSS
worker that L.E. would have died had he not intervened. The
seriousness of L.E.’s injuries alone militates strongly against the
provision of services aimed at returning him to Mother.
As to the bond between Mother and child, DSS removed
L.E. from Mother’s custody when L.E. was three and one-half
months old. Since then, Mother has had supervised visits with
L.E., but he has not been returned to her custody. Any bond that
may still exist between Mother and child is overwhelmed by the
need to protect L.E. from Mother’s demonstrated inability to
provide protection from severe physical injury.
Finally, although Mother is addressing the problem that
led to L.E.’s detention, the process is incomplete. When, if ever,
it will be complete is uncertain. Mother’s history of abusive
relationships and her willful blindness to Father as the source of
her child’s injuries suggest that the journey will be neither easy
nor brief. In the meantime, childhood is short. L.E. is entitled to
spend his in a safe and stable home.
There is nothing in Mother’s section 388 petition that
indicates she can meet her burden of proving by clear and
convincing evidence that the provision of reunification services is
in the best interest of the child. Her petition fails to state a
prima facie case. The juvenile court did not err in failing to grant
an evidentiary hearing.
9
DISPOSITION
The judgment (order) is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
PERREN, J.
TANGEMAN, J.
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Jean M. Dandona, Arthur A. Garcia, Judges
Superior Court County of Santa Barbara
______________________________
Paul A. Swiller, under appointment by the Court of Appeal,
for Defendant and Appellant.
Michael C. Ghizzoni, County Counsel, and Lisa A.
Rothstein, Deputy County Counsel, for Plaintiff and Respondent.
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