Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK80492, David Z. Zeidler, Judge.
Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Judith A. Luby, Principal Deputy County Counsel, for Plaintiff and Respondent.
RUBIN, J.
Father, George C., appeals from the restraining order commanding him to stay away from and not contact mother, Stephanie C. We affirm.
FACTS AND PROCEEDINGS
Mother Stephanie and appellant father George married in 1995. They had four children together: E. born in 1996, L. born in 1999, and twins S. and J. born in 2002. Stephanie and George separated in 2007, but appear not to have divorced.
In October 2008, the family court issued a domestic violence restraining order directing appellant to stay away from and not contact mother, the four children, and maternal grandmother. About a year later in September 2009, mother asked the family court to renew the restraining order, which was scheduled to expire in early October 2009. Pending a hearing on renewal of the restraining order, the family court temporarily extended the order to December 21, 2009; the court apparently continued the hearing several times because mother could not serve notice on appellant, whose whereabouts were unknown. In the meantime, on December 15, mother took her three youngest children to a local office of respondent Department of Children and Family Services (DCFS). She told DCFS she wanted to voluntarily surrender all of her children to the custody of DCFS for adoption. She explained that the special needs of the children – three of whom were on psychotropic medication for attention deficit disorder, mental retardation, and autism – overwhelmed her ability to take care of them. Although relatives were willing to care for the children, she wanted to turn the youngsters over to DCFS for foster placement and adoption because she did not want to burden her relatives.
The following week on December 23, mother filed an ex parte application in the family court for a temporary restraining order and request for protective order against appellant, asking that the court issue a new restraining order following the expiration two days earlier of the family court’s original restraining order. Mother asked that the family court expand the order to include her parents and her two adult siblings as protected parties; the court set the hearing on mother’s request for several weeks later in January 2010. The next day, DCFS filed a petition in dependency court under Welfare and Institutions Code section 300. It alleged the four children were at risk of harm from appellant’s history of domestic violence against mother; mother’s failure to protect the children because of her mental illness; including schizophrenia and depression; mother’s attempt to surrender the children for adoption; and appellant’s failure to provide in his absence for the children’s care. The dependency court detained the children, ordered their placement in foster care, and directed DCFS to locate appellant. Additionally, the dependency court notified the family court of the dependency court’s assumption of jurisdiction over the family.
DCFS located appellant in late January, three days before a settlement conference on January 28 in the dependency court. Father appeared at the conference, during which mother submitted to the dependency court her earlier request to the family court for a restraining order against appellant. The dependency court informed the family court that the dependency court intended to rule on mother’s request.
At the dependency court hearing on mother’s request on February 3, appellant opposed renewal of a restraining order. He testified to no history of domestic violence against mother; to the contrary, he claimed she used to hit him while they were living together. He further testified to little contact with mother since issuance of the original restraining order in October 2008. According to him, since October 2008 he had seen mother only twice during exchange of the children’s custody and once during a court proceeding, and at no time did he approach her. Despite appellant’s denials, the court accepted evidence in the record of his history of domestic violence against mother. The court found, “There are statements from the grandmother and the aunt regarding emotional abuse and controlling behavior on [appellant’s] part, that would then seem to lend credence to the mother’s allegations of physical abuse.” The court thus issued a restraining order against appellant to last three years, directing him to stay away from and not contact mother. (Welf. & Inst. Code, § 213.5, subds. (a), (i) [court may issue in dependency matter restraining order related to domestic violence].) Appellant filed a timely notice of appeal from the court’s order. In August 2010, mother died. On September 2, 2010, the dependency court vacated the restraining order because of the death of mother, who was the only person whom the order protected.
Following the dependency court’s vacating of the restraining order, DCFS filed a motion to dismiss the appeal as moot, which we denied. In its respondent’s brief, DCFS renews its request for dismissal, arguing we cannot provide any meaningful relief to appellant because the restraining order is no longer in effect. DCFS is mistaken. (See In re Cassandra B. (2004) 125 Cal.App.4th 199, 209-210 [appeal from order maintaining restraining order moot when order vacated, but appeal from order issuing restraining order not moot because formerly restrained party benefits from appellate court ruling that order never should have issued in the first instance].) The dependency court’s issuance of the February 2010 restraining order may have lingering effects even when the order is no longer in force. For example, various statutes require record keeping and reporting of domestic violence reports (e.g., Pen. Code, §§ 11160 et seq., 13730) may apply. Also, were appellant to prevail on appeal, he would benefit from an appellate court ruling declaring the restraining order was judicial error. (See In re Joel H. (1993) 19 Cal.App.4th 1185, 1193 [order vacated as a matter of law by death of protected person may have different res judicata effect than order found to have been erroneously issued].)
DISCUSSION
Appellant contends the court erred in issuing the February 2010 restraining order against him. He asserts that mother’s self-perceived need for protection was delusional, arising solely from her mental illness. He claims no evidence existed that he was trying to maintain contact or reestablish a relationship with her, making a restraining order unnecessary. Consistent with the purported lack of evidence of his having threatened mother, appellant notes that he had kept his distance from her since issuance of the October 2008 restraining order, and he testified at the February 2010 hearing that he intended to keep staying away from her in the future. In support of his contention that the court erred, he cites Ritchie v. Konrad (2004) 115 Cal.App.4th 1275 for the proposition that a domestic violence protective order may not issue solely on the unsubstantiated request of the party seeking protection, but rather may issue only upon the protected person showing a “reasonable apprehension” of future abuse. (Id. at pp. 1282-1284, 1287 [interpreting Family Code section 6345 covering domestic violence prevention orders].)
Mother denied suffering from mental illness, but the evidence, including statements of her adult relatives and her children, shows otherwise. Mother, for example, had once voluntarily admitted herself into a psychiatric hospital after hearing voices and mutilating herself. Also, DCFS’s petition noted mother suffered from schizophrenia, but refused to take prescribed medication because it made her gain weight. Finally, DCFS staff observed mother suffering symptoms of mental illness, including hearing voices, disorientation, withdrawal, and paranoia.
Appellant’s contention fails because the court did not issue the restraining order solely on mother’s say-so. Indeed, the court was mindful of mother’s psychiatric problems, stating “I do have concern about the mother’s mental health history.” Seeking corroboration of mother’s fear of future abuse from sources other than mother herself, the court credited statements of adult family members and mother’s and appellant’s four children, who witnessed episodes of domestic violence; indeed, the two oldest children wanted no contact with appellant unless he agreed to stop mistreating mother. The court concluded that the family’s evidence substantiated mother’s fears by “lend[ing] credence to the mother’s allegations of physical abuse.” On the record before it, which involved weighing the credibility of father, who denied having ever abused mother, against the credibility of family witnesses who testified to such mistreatment and abuse, we are bound by the dependency court’s findings as to who was more credible. (Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1562; In re B.D. (2007) 156 Cal.App.4th 975, 986.)
DISPOSITION
The dependency court’s February 3, 2010 order is affirmed as of the date it was issued until vacated by the dependency court on September 2, 2010.
WE CONCUR: BIGELOW, P. J., FLIER, J.