In re Xavien D. CA2/2

Filed 9/23/20 In re Xavien D. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
In re XAVIEN D., a Person Coming B302820
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. 18CCJP06637A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Plaintiff and Respondent.

v.

BRANDI D.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles
County. Sabina A. Helton, Judge. Affirmed.
Jamie A. Moran, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and Melania Vartanian, Deputy County Counsel
for Plaintiff and Respondent.
 Appellant Brandi D. (mother) appeals from the juvenile
court’s dispositional orders removing her son Xavien (born 2015)
from her custody and requiring her to obtain mental health
services. We affirm the orders.
BACKGROUND
Detention and section 300 petition
In May 2018, the Los Angeles County Department of
Children and Family Services (the Department) received a
referral alleging that mother abused drugs and alcohol, and that
Xavien witnessed ongoing and escalating violence between
mother and her boyfriend, Ronald C. The referral was deemed
inconclusive; however, mother agreed to a safety plan barring her
from living with Ronald and prohibiting contact with him.
Pursuant to the safety plan, mother and Xavien moved into the
home of a maternal aunt.
The Department received another referral in August 2018
for general neglect and emotional abuse of Xavien by mother and
Ronald. According to the reporting party, drug paraphernalia
was in open view in the home, which was littered with trash and
dirty clothes.
Mother told the responding social worker during an August
6, 2018 interview that Ronald had been arrested for violating a
condition of his parole prohibiting him from residing with mother
or having contact with her. Ronald’s parole agent had found a
methamphetamine pipe in the home and Ronald admitted using
methamphetamine. Mother said she was aware of Ronald’s
methamphetamine use but claimed he did not do so when she
and Xavien were present.

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 Mother identified Xavien’s father as Christian G. (father).1
A criminal history search showed that father had convictions for
inflicting corporal injury on a spouse or cohabitant and for
firearm violations.
Ronald’s parole agent informed the social worker that
Ronald wore a GPS monitor and was considered a member of a
dangerous street gang. The parole agent said a no contact order
with mother was a condition of Ronald’s parole given their
history of domestic violence. Ronald was arrested in January
2018 for violating that condition. Ronald was again arrested in
August 2018 when the parole agent found methamphetamine and
methamphetamine pipes in the home.
Mother’s and Xavien’s whereabouts became unknown in
mid-August 2018. The Department recommended that Xavien be
detained at large.
On October 15, 2018, the Department filed a petition on
Xavien’s behalf under Welfare and Institutions Code section 300,
subdivision (b),2 alleging that mother failed to protect Xavien by
allowing Ronald to be under the influence of drugs in the child’s
presence and to possess drugs and drug paraphernalia in the
home within Xavien’s access.
Xavien’s whereabouts and that of both parents remained
unknown at the time of the October 16, 2018 detention hearing at
which the juvenile court ordered Xavien detained from parental
custody. The juvenile court issued a protective custody warrant

1 Father is not a party to this appeal.

2 All further statutory references are to the Welfare and
Institutions Code.

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for Xavien, an arrest warrant for mother, and due diligence
searches for both parents.
Jurisdiction and disposition
Mother’s, father’s, and Xavien’s whereabouts remained
unknown at the time the Department filed its December 2018
jurisdiction/disposition report. Ronald’s parole agent informed
the Department that Ronald was an active gang member and was
considered armed and dangerous. The parole officer reaffirmed
that Ronald was prohibited from contacting mother.
In June 2019, the Department reported that Ronald had
been arrested on April 17, 2019, near the apartment building
where he and mother had last resided. Law enforcement officers
subsequently found and arrested mother in the same building.
The officers took Xavien into protective custody and released him
to the Department.
In its June 2019 detention report, the Department
explained the need for Xavien’s continued detention because
mother presented a flight risk. Mother’s whereabouts had been
unknown since August 2018, and she had failed to appear at
scheduled court hearings or to respond to the Department’s
attempts to contact her. Maternal aunt Jennifer C. told the
Department’s social worker on June 20, 2019, that mother had
been hiding from the entire family until she telephoned the
maternal grandmother from jail.
Mother was present in custody at a June 24, 2019 hearing
at which time the juvenile court ordered that Xavien remain
detained. Mother informed the juvenile court that father was
incarcerated in Orange County, and the court issued a statewide
removal order for father’s transportation to the next hearing.
The court ordered the Department to provide mother with

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housing referrals and transportation assistance and granted
mother monitored visitation.
In its July 2019 jurisdiction/disposition report, the
Department reported that both mother and father had criminal
histories that included inflicting corporal injury on a spouse or
cohabitant. A dependency investigator interviewed father, who
was in federal custody, by telephone on July 8, 2019. Father said
that mother had a history of drug use and had been unstable
most of her life. He said mother had accused him of domestic
violence and that he believed domestic violence was an issue in
all her relationships. Father said he wanted to be involved in
Xavien’s life, but mother had not allowed him to do so. Father
was scheduled to be released from custody in October 2019.
The Department reinterviewed maternal aunt Jennifer C.
by telephone on July 8, 2019. When asked about mother’s mental
health, the maternal aunt reported that mother became
depressed when the social worker told her to avoid contact with
her boyfriend. She said mother was scared, crying
uncontrollably, and might need therapy.
The social worker met with mother on July 19, 2019, and
provided her with copies of the section 300 petition, the
Department’s reports, the juvenile court’s minute orders, and a
packet of resources for services including housing, food banks,
and programs for parenting and substance abuse. Mother
admitted to an incident of domestic violence with father in the
past and disclosed she had been sexually molested as a child.
A multidisciplinary assessment team (MAT) report
prepared in August 2019 indicated that the Department had
referred mother to Tri-City Mental Health Services, where
treatment modalities included intensive psychiatric assessment,

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individual, group, and family therapy, case management services,
and housing options.
In a last-minute information for the court filed in
September 2019, the Department reported on information it had
obtained from the Buena Park Police Department regarding
domestic violence between mother and father. In 2013, police
officers reported that mother had sustained bruising and swelling
around her right eye and cuts and scratches on her chin and
neck. Mother told the officers that father had punched her
multiple times until she fell to floor and “blacked out.” Father
was arrested in 2014 for violating a restraining order protecting
mother from him and prohibiting him from purchasing firearms.
Mother met with the Department’s dependency
investigator and social worker on October 3, 2019. She had not
enrolled in any services but said she was trying to obtain housing
and to enroll in a substance abuse program. The social worker
said she could arrange a meeting between mother and a
substance abuse coordinator at the Department’s office to
facilitate mother’s enrollment in a drug program. The
dependency investigator asked to meet with mother at the
Department’s office on October 8, 2019. Mother agreed to attend
both meetings and to submit to a drug test on October 4, 2019.
Mother did not appear for the scheduled drug test, the
appointment with the dependency investigator, or the meeting
with the substance abuse coordinator.
The social worker spoke with mother by telephone on
October 22, 2019. Mother said she had not contacted the
Department because she had been ill and had not enrolled in
services because she was focusing on obtaining housing and
employment.

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 The Department filed a first amended petition on October
25, 2019 adding allegations under section 300, subdivisions (a)
and (b), that mother and father had a history of engaging in
violent altercations and that father had violated a restraining
order prohibiting contact with mother. Father was present at the
October 28, 2019 hearing at which the juvenile court found him
to be Xavien’s presumed father.
In a last-minute information for the court filed in
November 2019, the Department reported on an October 29, 2019
interview with father, who had been released from custody.
Father told the social worker that the violence between him and
mother was “long ago,” and that the restraining order against
him was no longer active. Father said he and mother were on
good terms and they had spoken over the weekend. He denied
the violent incident with mother described in police reports and
said mother had falsely accused him. Father’s state parole officer
confirmed that there was no current restraining order against
him but that no contact with mother was a condition of father’s
parole.
The Department reported that Xavien had disclosed an
incident of domestic violence to his foster caregiver. Xavien said
that while he was seated in the backseat of mother’s car, a male
passenger broke the car windshield and began hitting mother
repeatedly, asking her if she had money. Xavien said the male
passenger lived with them but had never hit him.
Xavien’s foster mother expressed concerns about mother’s
interactions with the child. Mother gave Xavien a stuffed animal
which she referred to as Xavien’s “baby brother.” She told Xavien
to sleep with it and keep it in his sight, and during telephone
calls asked him whether he was taking care of it. Mother told the

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foster parents that “Xavien lives for me.” She also said that
Halloween was a difficult time for her, and that she relied on
Xavien to help her through the pain. Mother told the social
worker that she was unable to work because she no longer had
Xavien with her. The Department recommended an Evidence
Code section 730 evaluation for mother.
Adjudication and disposition
Father testified at the December 3, 2019 combined
adjudication and disposition hearing. Father said the domestic
violence with mother occurred in 2013 and that he had no other
incidents of domestic violence with anyone since then. He
confirmed that no contact with mother was a condition of his
parole and denied telling the social worker that he had recently
spoken with mother.
Mother testified that a violent incident with father
occurred in 2013 and there had been no altercations or
communications between them since then. She said father had
not contacted her in violation of the restraining order and that
she had sent a letter to father’s parole officer asking that the no
contact condition be removed.
After hearing argument from counsel, the juvenile court
sustained the allegations under section 300, subdivision (b), that
mother failed to protect Xavien by allowing Ronald to be under
the influence of drugs in the child’s presence, placing Xavien at
risk of physical harm; and that domestic violence between mother
and father, including father’s 2014 violation of an active
restraining order prohibiting contact with mother, placed Xavien
at risk of harm. The court ordered Xavien removed from
mother’s custody and placed with father. The juvenile court
ordered mother to complete a domestic violence support group for

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victims; drug and alcohol services with random or on-demand
testing; parenting classes; individual counseling to address case
issues, including child safety and childhood trauma; and mental
health counseling, including a psychiatric evaluation. The court
accorded mother monitored visits, not to be monitored by father
or to take place in father’s home.
This appeal followed.
DISCUSSION
I. Removal order
Section 361, subdivision (e) requires the juvenile court,
before removing a child from parental custody, to determine
whether reasonable efforts were made to prevent or to eliminate
the need for removal and to “state the facts on which the decision
to remove the minor is based.” (§ 361, subd. (e).)
Mother contends the removal order must be reversed
because the juvenile court made no factual findings regarding the
need to remove Xavien from her custody or the lack of available
alternatives to removal. The juvenile court’s removal order
states:
“The Court finds by clear and convincing evidence,
pursuant to Welfare and Institutions Code sections
361(a)(1), 361(c), 361(d) and 362(a), and additionally
applying to noncustodial parent(s)/legal guardian(s)
the constitutional and statutory safeguards available
to custodial parents.”

“It is reasonable and necessary to remove the child
from the mother, as such removal is defined in 45
CFR 1356.21(k)(1)(ii), and the care, custody, and
control of the parent(s)/legal guardian(s) from whom
the child is being removed because there is a
substantial danger to the physical health, safety,
protection, or physical or emotional well-being, and

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 special needs, if applicable, of the child, and there are
no reasonable means by which the child’s physical
health can be protected, without removing the child
from the home and the care, custody, and control of
that or those parent(s)/legal guardian(s).”

“The Court further finds that it would be detrimental
to the safety, protection, or physical or emotional
well-being, and special needs, if applicable, of the
child to be returned to or placed in the home or the
care, custody, and control of that or those
parent(s)/legal guardian(s).”

“The Department of Children and Family Services
made reasonable efforts to prevent removal but there
are no services available to prevent further
detention.”

“The agency has complied with the case plan by
making reasonable efforts to return the child home or
taken whatever steps necessary to finalize the
permanent plan.”

“The Court orders the child removed from home and
the care, custody and control of the parent(s)/legal
guardian(s) from whom the child is being removed
and placed in the care, custody and control of the
Department of Children and Family Services.”

The reporter’s transcript of the disposition hearing contains no
additional factual findings by the juvenile court.3

3 Although the Department claims the juvenile court made
the factual findings necessary to support the removal order, it

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 One appellate court has agreed with mother’s contention
that the juvenile court erred by failing to expressly “state the
facts on which the decision to remove the minor is based” as
required by section 361, subdivision (e), and that the juvenile
court’s written disposition order fails to satisfy the statutory
requirement. (In re D.P. (2020) 44 Cal.App.5th 1058, 1066.) We
conclude, however, that any error by the juvenile court was
harmless under the circumstances presented here. Failure to
make required findings under section 361, subdivision (e) will be
deemed harmless when “‘it is not reasonably probable such
finding, if made, would have been in favor of continued parental
custody.’ [Citations.]” (In re Jason L. (1990) 222 Cal.App.3d
1206, 1218.) Such is the case here.
After the initial referral that brought Xavien to the
Department’s attention, the Department implemented a safety
plan in which mother agreed to move into the home of a maternal
aunt and to avoid contact with Ronald. Mother failed to comply
with that plan. Instead, she moved back in Ronald where drugs
and drug paraphernalia were accessible to Xavien. Despite a no
contact order, mother maintained a relationship with Ronald and
continued to live with him, knowingly exposing Xavien to
domestic violence and drugs within the home. After Ronald’s
arrest in August 2018, mother absconded with Xavien and their
whereabouts were unknown for nearly a year. She and Ronald
were subsequently arrested in or near the same apartment
building where they had previously resided.
After Xavien was detained, mother remained
uncooperative, failing to enroll in any services or to maintain

fails to identify where in the record these express findings were
made.

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consistent contact with the Department’s social worker and
dependency investigator.
In re Ashly F. (2014) 225 Cal.App.4th 803, on which mother
relies, is inapposite. In that case, the juvenile court’s failure to
state the basis for its removal order and the Department’s failure
to discuss its reasonable efforts to prevent removal constituted
prejudicial error when there was “ample evidence” of reasonable
means to protect the children in the home -- including removing
the offending parent. (Id. at pp. 809-811.) The offending mother
admitted abusing the child and was willing to move out of the
home so the children could remain in the home with the non-
offending father, who had completed a parenting program. (Ibid.)
Here, in contrast, mother failed to comply with a safety plan that
required her to live apart from Ronald and to have no contact
with him. Despite their history of domestic violence, mother
continued to share a residence with Ronald, in violation of court
orders prohibiting contact between them. She knew of Ronald’s
methamphetamine use but continued to reside with him in a
home where drugs and drug paraphernalia were accessible to
Xavien. The record discloses no prejudicial or reversible error.
II. Order for mental health services
We reject mother’s challenge to the order requiring her to
obtain mental health services based on the absence of any mental
health allegations in the petition sustained against her. Under
section 362, subdivision (d), “[t]he juvenile court may direct any
and all reasonable orders to the parents or guardians of the child
who is the subject of any proceedings under this chapter as the
court deems necessary and proper to carry out this section.” “A
jurisdictional finding involving the conduct of a particular parent
is not necessary for the court to enter orders binding on that

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parent, once dependency jurisdiction has been established.
[Citation.]” (In re I.A. (2011) 201 Cal.App.4th 1484, 1492.) When
a court becomes aware of parental deficiencies that may impede
the parent’s ability to reunify with a child, the court may address
them in the reunification plan. (In re Christopher H. (1996) 50
Cal.App.4th 1001, 1008.) An appellate court will not disturb a
discretionary decision unless it was arbitrary, capricious, or
patently absurd. (In re Raymundo B. (1988) 203 Cal.App.3d
1447, 1456.)
The record discloses no abuse of discretion. There was
substantial evidence that mother had unresolved mental health
issues. Maternal aunt Jennifer C. told the social worker that
mother was depressed, crying uncontrollably, and appeared in
need of therapy. Mother expressed dependence on Xavien to help
her cope with difficulties. The Department recommended an
Evidence Code section 730 evaluation for her.
In re Jasmin C. (2003) 106 Cal.App.4th 177 does not
support mother’s position. The appellate court in that case
reversed an order requiring a non-offending mother to attend
parenting education classes when there was no evidence she had
abused her children or failed to protect them. The Department’s
intervention was prompted by a single incident in which the
father engaged in physical conflicts with his two teenaged
daughters, the mother intervened, restrained him, and directed
that the police be called. The father was arrested and ordered to
move out of the home and the children remained placed with
their mother. (Id. at pp. 179-180.) Here, in contrast, the
sustained allegations against mother and the evidence in the
record amply support the juvenile court’s order for mother to
participate in mental health services.

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 DISPOSITION
The juvenile court’s orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________, J.
CHAVEZ
We concur:

__________________________, P. J.
LUI

__________________________, J.
HOFFSTADT

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