Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK79555, Randolph Hammock, Referee.
Marissa Coffey, under appointment by the Court of Appeal, for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
FLIER, J.
D.M. appeals from the juvenile court’s denial of his requested order restraining his half brother Mario from harassing him. Because D.M. demonstrates the juvenile court applied the incorrect burden of proof, we reverse the order and remand the case for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
D.M., a 17-year-old, is a dependent child under Welfare and Institutions Code section 300. On July 20, 2010, at D.M.’s request, the juvenile court “reluctantly” issued a temporary restraining order, enjoining his 23-year-old half brother Mario Sanchez from coming within 100 yards of D.M. D.M. alleged that Mario tried to start a fight in the courthouse, punched him, and threatened to kill him. D.M. represented that he had a bloodied lip as a result of an altercation with Mario. D.M. also alleged that Mario followed him when D.M. was driving with his father (father) and “flipped him off during football practice.” A police report taken May 16, 2010, indicated that D.M.’s father reported Mario threatened to kill D.M. The police report further stated that Mario denied threatening D.M.
Undesignated statutory citations are to the Welfare and Institutions Code.
On August 6, 2010, the court held a hearing to determine whether to issue a permanent restraining order. At that hearing, the court accepted D.M.’s above representations as testimony. D.M. further testified that on August 2, 2010, Mario pulled up next to the car in which D.M. was a passenger, extended his middle finger, uttered profanity, and threatened to “get” him. D.M. testified that the Glendora Police Department recommended he seek a restraining order. D.M. also represented that Mario drove past his school in September 2009 and May 2010. According to D.M., his football coach requested Mario stay away from the school after Mario harassed D.M. at football practices. D.M. testified that Mario broke into the house where Mario now lives at a time when D.M. was living there with father.
Mario’s testimony conflicted with D.M.’s. Mario testified that although he pulled up alongside D.M.’s car on August 2, 2010, he said only “I love you.” Mario denied extending his middle finger or uttering anything menacing. Mario also testified he did not attend any of D.M.’s football games in the last year. Mario denied ever punching or attempting to punch D.M.
The juvenile court found that D.M.’s testimony was not credible. The court further found that D.M. was “the instigator” of the “tension” with Mario. The court concluded D.M. “clearly” had not met his burden to show “by clear and convincing evidence... that there’s a credible threat of violence....” The court also did not believe D.M. was in fear of serious physical or substantial emotional harm from Mario. At the end of the proceedings, the court admonished Mario for having “potentially violate[d] the restraining order” when he pulled up alongside the vehicle in which D.M. was a passenger. The court dissolved the temporary restraining order and denied D.M.’s request for a permanent restraining order. This appeal followed.
DISCUSSION
D.M. argues that (1) the court erred in applying a “clear and convincing” burden of proof instead of the lesser preponderance of the evidence standard; (2) the juvenile court was required to investigate whether Mario had a criminal background; and (3) substantial evidence would have supported the issuance of a restraining order. We conclude D.M.’s first and second arguments have merit. Because reversal is required, we need not consider D.M.’s third argument.
1. Standard of Proof
Welfare and Institutions Code section 213.5 governs a dependent child’s procurement of a restraining order. The statute contains no description of the burden of proof necessary to obtain a restraining order. Therefore, by default, the appropriate burden of proof is proof by the preponderance of the evidence. Evidence Code section 115 explains: “Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.” The juvenile court erred in requiring clear and convincing evidence.
Section 213.5, subdivision (a) provides in pertinent part: “the juvenile court may issue ex parte orders (1) enjoining any person from molesting, attacking, striking, sexually assaulting, stalking, or battering the child or any other child in the household; (2) excluding any person from the dwelling of the person who has care, custody, and control of the child; and (3) enjoining any person from behavior, including contacting, threatening, or disturbing the peace of the child, that the court determines is necessary to effectuate orders under paragraph (1) or (2).”
2. Investigation
Section 213.5, subdivision (k) requires a juvenile court to investigate the criminal background of the person to be restrained pursuant to a restraining order. (Cal. Rules of Court, rule 5.630(i); In re Cassandra B. (2004) 125 Cal.App.4th 199, 209.) In evaluating the requested restraining order, the juvenile court must consider whether the person to be restrained suffered a conviction for a serious or violent felony or a conviction for a misdemeanor involving domestic violence, weapons, or other violence, any outstanding warrant, parole or probation status, any prior restraining order, and any violation of a prior restraining order. (§ 213.5, subd. (k)(2).) Pursuant to section 213.5, the juvenile court should have taken into account Mario’s background by conducting or causing a search to be made for the information required in section 213.5.
Section 213.5, subdivision (k) provides: “(1) Prior to a hearing on the issuance or denial of an order under this part, a search shall be conducted as described in subdivision (a) of Section 6306 of the Family Code. [¶] (2) Prior to deciding whether to issue an order under this part, the court shall consider the following information obtained pursuant to a search conducted under paragraph (1): any conviction for a violent felony specified in Section 667.5 of the Penal Code or a serious felony specified in Section 1192.7 of the Penal Code; any misdemeanor conviction involving domestic violence, weapons, or other violence; any outstanding warrant; parole or probation status; any prior restraining order; and any violation of a prior restraining order. [¶] (3) [¶] (A) If the results of the search conducted pursuant to paragraph (1) indicate that an outstanding warrant exists against the subject of the search, the court shall order the clerk of the court to immediately notify, by the most effective means available, appropriate law enforcement officials of any information obtained through the search that the court determines is appropriate. The law enforcement officials notified shall take all actions necessary to execute any outstanding warrants or any other actions, as appropriate and as soon as practicable. [¶] (B) If the results of the search conducted pursuant to paragraph (1) indicate that the subject of the search is currently on parole or probation, the court shall order the clerk of the court to immediately notify, by the most effective means available, the appropriate parole or probation officer of any information obtained through the search that the court determines is appropriate. The parole or probation officer notified shall take all actions necessary to revoke any parole or probation, or any other actions, with respect to the subject person, as appropriate and as soon as practicable.”
3. Remand Is Appropriate
The case must be remanded to the juvenile court to conduct the required investigation and to apply the proper burden of proof. We express no opinion as to whether the restraining order should issue. We hold only that after the required consideration under section 213.5, the juvenile court shall apply to preponderance of the evidence burden of proof to evaluate D.M.’s requested restraining order.
DISPOSITION
The order is reversed and the case is remanded to the juvenile court. The juvenile court should hold a new hearing to determine whether to issue a permanent restraining order.
We concur: RUBIN, Acting P. J. GRIMES, J.