Opinion
B313263
04-27-2023
In re A.K., a Person Coming Under the Juvenile Court Law. v. G.K., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
John L. Dodd & Associates and John L. Dodd, by appointment of the Court of Appeal, for Defendant and Appellant. Law Office of Marissa Coffey and Marissa Coffey for Respondent mother. Janette Freeman Cochran, by appointment of the Court of Appeal, for minors.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 20CCJP04613A-B Pete R. Navarro, Judge. Affirmed.
John L. Dodd & Associates and John L. Dodd, by appointment of the Court of Appeal, for Defendant and Appellant.
Law Office of Marissa Coffey and Marissa Coffey for Respondent mother.
Janette Freeman Cochran, by appointment of the Court of Appeal, for minors.
STONE, J. [*]
INTRODUCTION
G.K. (father) appeals from a restraining order entered against him under Welfare and Institutions Code section 213.5. Father contends there is insufficient evidence to support the restraining order. In addition, father argues the firearm prohibition component of the restraining order should be vacated in light of the recent United States Supreme Court decision in New York State Rifle &Pistol Association, Inc. v. Bruen (2022) 597 U.S., , 213 L.Ed.2d 387 (Bruen). We conclude the restraining order was supported by substantial evidence. We also find father's "as applied" constitutional challenge to the firearm restriction was forfeited, and we decline to nevertheless exercise our discretion to consider the issue given it would not present a pure question of law. Therefore, we affirm.
All further statutory references are to the Welfare and Institutions Code, unless otherwise stated.
FACTUAL AND PROCEDURAL HISTORY
The family consists of father, D.K. (mother), and their two children, Amanda K. (born May 2004) and Marcella K. (also known as "Mars," born June 2006). The family had a history of referrals to DCFS dating back to 2012, including, but not limited to, emotional and physical abuse allegations against father.
Marcella was born a biological female but identified as a transgender male. Marcella preferred male pronouns and the name "Mars." Therefore, all further references to the child will be to "Mars," with male pronouns.
On August 4, 2020, DCFS received a referral that Amanda had been taken to the hospital and initially reported that she had fallen off her skateboard and hit her head. Amanda had multiple bruises on her arms, legs, and forehead. The doctor was concerned she could also have a head injury, as she was experiencing blurry vision, dizziness, and nausea. Mother later informed the doctor that Amanda had not fallen off her skateboard; rather, father had pushed her into a wall. Amanda's boyfriend witnessed and confirmed the incident.
Mother reported to DCFS that father lived in a downstairs family room and was "not supposed to come upstairs to [the] bedrooms." She further reported father was "paranoid," collected guns and martial arts weapons, and had an "explosive" temper. Mother and the children were terrified of him and believed he could "flip out." Mother had asked father to leave the home, but he refused. She disclosed that some time ago, father grabbed her by the neck. Another time, he was working with a blow torch in the garage and pointed it at her in a threatening manner.
Regarding the referral incident, Amanda reported that father had pushed her, so she pushed him back, and then he "socked" her. Mars tried to intervene. Amanda's boyfriend and friend were in the room and witnessed the incident. Amanda said she had never reported father's behavior in the past to social workers because father told her that "no one likes a snitch." When asked about other incidents of abuse by father, Amanda "began to cry hysterically and said there has been so much." Mars similarly reported that father had punched him in the past. He also said that father had always told him that "[l]esbians are evil." Amanda's boyfriend reported he saw father push Amanda twice and punch her twice.
Father asserted that the referral incident arose over a disagreement about the family's rabbits. Amanda became irate and began punching the door. When father went upstairs, both children came at him, so he had to defend himself against them. Father denied hitting the children. He disclosed that Amanda had been placed on a psychiatric hold earlier in the year because of drug use and that she was verbally abusive towards mother.
On August 20, 2020, a social worker visited the family home and spoke to mother. Mother reported she was "uncomfortable" and "unsafe" in the home since father refused to leave. Father continued to be verbally aggressive. The night before, father had threatened to physically kick Amanda's boyfriend out of the house and then challenged the boyfriend's father to come over to fight. That same night, father was mad at Mars and pushed him onto the couch. Father continued to not accept Mars identifying as transgender and kept calling him a "faggot." Father called Amanda fat, which affected her already low self-esteem. Mother and the children were participating in family therapy and father refused to attend.
When the social worker spoke to the children, they appeared fearful. They asked that the bedroom door be shut and spoke in low voices to avoid alerting father to the social worker's presence. The children indicated that father had become very paranoid after the last visit and warned them not to "snitch." Amanda reiterated the reports about father's aggressive behavior the night before.
Amanda also disclosed that she struggled with suicidal thoughts several years ago, and when father learned about her suicidal ideation, he placed guns around the house. Father even challenged her to hurt herself. Amanda had been in several treatment programs and received a significant amount of therapy. She was diagnosed with post-traumatic stress disorder (PTSD) and attributed it to living with father's erratic and angry behaviors, in addition to past unrelated traumas, including sexual assault. Amanda struggled with body image and eating disorders. Father would constantly pinch her body and call her fat. He also called her a "slut" and told her she was "asking to be raped" based on her attire. Amanda was afraid father would hit her or say inappropriate things to her, as he did not care about her.
Mars reported that father was verbally abusive towards him, particularly about his transgender identity. Father stated that Mars and the LGBT community would "burn in Hell," and he would call Mars a "faggot." Father would "play fight" with Mars and punch and push him, even when Mars told him it hurt. Mars stated he was in therapy and that father refused to participate. Mars believed father needed to leave the family home in order for them to be safe.
On August 21, 2020, Amanda's therapist reported a history of issues involving father's behavior towards the children. The therapist had been working with Amanda for three years. The therapist was surprised about the referral and reported that Amanda had been doing well in therapy. Amanda's most recent diagnosis was her eating disorder, and their last session had been several months earlier. The therapist met father for one session and found him to be "old school and rigid." Amanda told her that father had a temper and could be verbally "awful." He would play in a physically aggressive manner and did not appear to know his own strength. The therapist reported mother was slow to act and had her own mental health issues. The therapist would believe Amanda's disclosures of any safety concerns.
Mother contacted the social worker and reported there was another altercation on August 20, 2020. The children started arguing with father and Mars got "socked in [the] face," turning his face red. Amanda tried to protect Mars and got kicked. Mother did not contact the police out of fear father would get upset and make things worse. Mother provided the social worker with photos of the bruises on the children's bodies.
On August 28, 2020, DCFS applied for and received an order removing the children from father but releasing them to mother. DCFS filed a petition on behalf of Amanda (then 16 years old) and Marcella (then 14 years old) under section 300, subdivisions (a), (b)(1), (c) and (j). The petition alleged father had physically abused both Amanda and Mars on numerous occasions, placing them at risk of serious physical harm. In addition, the petition alleged Amanda suffered from a variety of psychological and psychiatric problems, and the parents failed to ensure she took her medication. Finally, the petition alleged Father emotionally abused both Amanda and Mars by calling both of them derogatory and demeaning names, including denigrating Mars based on his sexual identity. DCFS alleged that as a result of father's emotional abuse, both children were at substantial risk of suffering serious emotional damage, as evidenced by severe anxiety, depression, withdrawal, and aggressive behavior towards themselves and others.
At the September 4, 2020 detention hearing, the juvenile court found a prima facie case that the children came within section 300 and ordered them detained from father and placed with mother. Father was not present.
On September 16, 2020, the court ordered that the children remain with mother and father's visits be monitored. In response to mother's request, the court issued a temporary restraining order (TRO) against father, protecting mother and the children. The TRO allowed contact between the parties only during monitored visitation.
During a September 29, 2020 interview, Amanda explained that on the night of the referral incident, she was depressed because her pet rabbit died. Father asked her if she needed him to call the mental hospital or police. Amanda said he liked to threaten and taunt her instead of deescalating the situation. Father got really close to her and she pushed him away. Father then pushed her into the doorway and hit her. Mother was not home during the altercation.
Amanda stated that father would fight with her and Mars when mother was not at home. Father called Amanda derogatory names, and he called Mars a "stupid little faggot girl." Amanda intervened to protect Mars from father's discipline, and father spanked her for intervening.
Mars reported that when mother was not present, father was abusive. Mars did not remember much about the night of the referral incident except that he saw father hitting Amanda, so Mars hit father in the face. Mars usually hit father in the stomach. Father also liked to wrestle almost daily, causing many injuries. There were instances when father kicked him for no reason or grabbed his neck if he was in the way. Mars stated that father enjoyed going after him for being transgender and going after Amanda for the simplest things. Mars had observed father escalate Amanda's mental health episodes. Father threw Amanda to the floor "all the time." Mars stated father locked him in a room with the lights off as a form of punishment and spanked him really hard as a little child. Mars was unsure whether he wanted to work on a relationship with father due to all the psychological damage.
Father reported that on the night of the referral incident, he heard pounding and saw Amanda smashing her bedroom door. The children both came at him. He denied kicking Amanda, claiming instead that he pushed her one time before he and Amanda "clashed bodies." Father felt he was the victim in the situation and maintained that the children are liars. He also denied he previously hit Mars, and stated Mars initiated the "play" wrestling. He also denied using derogatory names toward the children but did recall telling Mars to "shut up faggot." Father did not think therapy was effective for his children. Father admitted to having 60 registered guns in three safes to which no one else had access. Father also admitted that after the detention hearing, he met the children at a park despite court orders in place.
Mother reported that although she was not at home at the time of the referral incident, she observed bruises on Amanda's and Mars' bodies, as well as a scratch near father's lips when she returned home. She had witnessed prior physical altercations between father and the children, including father grabbing the children by the back of their necks, and father practicing karate on Mars even though he cried during the activity. Mother believed the children were afraid of father. Mother also heard father tell Amanda she was going to get raped if she wore certain clothing. She had also heard father calls Mars a "faggot." Mother also disclosed father had grabbed mother by her neck several times.
Amanda began participating in therapy again at the end of September 2020. Amanda's therapist expressed concerns about Amanda's enmeshment with her parents as well as the levels of trauma she had experienced. The therapist also expressed concerns about father's influence over Amanda and stated it appeared "excruciating to live with that man." Amanda was no longer acutely suicidal as she had been when she originally entered therapy. Since father had been out of the home, there had been a reduction in the level of chaos.
At the October 16, 2020 jurisdictional hearing, father pled no contest to the allegations of an amended petition under section 300, subdivisions (b)(1) and (c). The petition, as amended, alleged that on numerous occasions, father acted in self-defense, resulting in Amanda suffering excessive harm, including a concussion and bruising to her foot, knee, elbow, and head. Similarly, on numerous occasions father harmed Mars while acting in selfdefense, causing redness to Mars' face, bruising to his buttocks area, and scratches on his back. In addition, Amanda suffered from a variety of psychological and psychiatric problems, including self-harming behavior and suicidal ideations, and father was medically neglectful in failing to ensure she took her medication. Father had also emotionally abused the children by referring to them by "derogatory and demeaning names," placing the children at substantial risk of harm.
The court sustained the petition as amended by interlineation and ordered the children to remain in mother's custody and removed from father's custody. Father's visits were to remain monitored, for two hours twice a week.
Over father's objection, the court granted the permanent restraining order, prohibiting father from contacting mother or the children except in connection with monitored visitation. Father was prohibited from coming within 100 yards of the protected parties or the family home. He was ordered not to "[m]olest, attack, strike, stalk, threaten, sexually assault, batter, harass, destroy the personal property of, or disturb the peace" of mother and the children. The order also stated father could not possess firearms or ammunition. The order was to expire on April 14, 2021.
On March 21, 2021, DCFS received a referral regarding father's violation of the restraining order. The caller reported that father continuously harassed and attempted to contact Amanda. He had been going to the family's home and knocking on Amanda's window in order to speak with her privately. It was further expressed that Amanda was fearful of father and felt that law enforcement was not enforcing the restraining order.
Amanda's therapist submitted a progress report, dated March 22, 2021, noting that Amanda had been engaged in weekly therapy and was diagnosed with PTSD and recurrent major depressive disorder with anxious distress. The therapist reported Amanda had begun to reveal details about father's past behaviors as well as her need to keep secrets and fabricate stories to protect him. Amanda told her therapist that "father continues to stalk her, press her and manipulate her even in the presence of her monitored visits, to let[] him into the house, [and to] coerce her mother to drop [the] divorce." Father would also appear at Amanda's bedroom window, "staring in, knocking at the window begging to be let in." In addition, father would "contact her through social media, and telephone over and [over] again regardless of the restraining order." Amanda "expressed hopelessness" and was distraught, overwhelmed, and terrified. The therapist hoped the report served as a support for Amanda's request to be protected from father and remain in the care of mother only.
Father was participating in therapy and engaged in case related issues. His therapist reported that father was progressively making cognitive and behavioral changes. Father completed a parenting course. Father consistently visited the children and requested that he have unmonitored visits with them every other weekend. At times, father needed to be redirected from discussing case issues during visitation.
On April 14, 2021, the day the restraining order was set to expire, both mother and father appeared for a hearing and mother requested to continue the restraining order. However, because the court did not receive the proper paperwork for such a request, the order was allowed to expire, with mother's counsel indicating she would request another restraining order. On April 19, 2021, mother requested a new restraining order against father on behalf of herself and the children. In the request, mother detailed father's violation of the restraining order on March 21, 2021, as well as the grounds for the prior restraining order, including father's aggressive and violent behavior towards the children causing them emotional and physical harm, his name-calling and disparaging remarks, and his prior aggression towards mother, including grabbing her by the neck and pointing a blowtorch at her. The request alleged the children and mother were fearful of father.
At the hearing on the new temporary restraining order, mother testified both she and the children, who were not present, were requesting the restraining order. Father had been "bringing [up] inappropriate subject matter on the phone" with the children. He would talk about the dependency proceedings and ask the children to lift the restraining order so that he could "buy them gifts and take them away on vacations." Mother added that father was manipulating the children, and they would be upset several days after these phone calls. She further stated that the children did not want unmonitored visits with father because they were uncomfortable around him and felt like he was pressuring them. Mother noted that father came to the family home during the Christmas holiday in violation of the restraining order to store some tables he purchased in the garage. Counsel for minors added that father had been coming to the family home and knocking on Amanda's window, and that Amanda was fearful of father and felt law enforcement was not enforcing the restraining order.
Over father's objection, the court issued a TRO. On April 28, 2021, the court extended the TRO.
On May 19, 2021, the court heard argument on the request for a permanent restraining order. Counsel for mother contended that father had been unwilling to comply with the prior restraining order and was "push[ing] himself" on the children even when they asked father to respect their boundaries. Counsel for minors argued there were ongoing issues with father complying with the court's orders for only monitored contact with the children. Counsel asserted the children were fearful of father and did not feel safe or protected by father. Moreover, the report by Amanda's therapist "really expands on the significant issues with father continuing to violate the restraining order and the effect that that's having on Amanda's mental health." The therapist had stated that father "continues to stalk [Amanda], press her, and manipulate her." In response, counsel for father argued the request was based on one violation of a prior restraining order, and his interaction with Amanda was not violent or threatening. DCFS submitted on the issue. Over father's objection, the court issued a three-year restraining order protecting mother and the children, and permitting father only monitored visitation with the children. The order again included the standard firearm possession prohibition.
The court then found the conditions justifying the initial assumption of jurisdiction no longer existed and terminated jurisdiction. The court issued a juvenile custody order awarding mother sole physical custody, the parents joint legal custody, and father monitored visitation.
Father timely appealed. Only mother and Amanda filed a respondent's brief. Sadly, Mars died on October 12, 2022, and is therefore no longer a party to this appeal.
Despite the fact that Amanda is no longer a minor, the restraining order issued by the juvenile court remains in effect to protect her. Once the juvenile court terminates jurisdiction, the family court assumes jurisdiction over restraining orders issued in the juvenile court. (§ 362.4; see Priscila N. v. Leonardo G. (2017) 17 Cal.App.5th 1208, 1214 (Priscila N.) [Legislature intended that the Family Code and Welfare and Institutions Code be construed to work together to protect domestic violence victims].)
DISCUSSION
I. Substantial Evidence Supports Issuance of the Restraining Order
Father contends the May 19, 2021 restraining order protecting mother and Amanda was not supported by substantial evidence. We disagree.
A. Statutory Framework and Standard of Review
A juvenile court has the authority to issue an order "enjoining a person from molesting, attacking, striking, stalking, threatening, . . . harassing, telephoning, . . . contacting, . . ., coming within a specified distance of, or disturbing the peace of the child or any other child in the household." (§ 213.5, subd. (a).) The court may also issue orders protecting "the child's parent as a person protected from the behaviors listed above and excluding the restrained person from the child's home." (In re C.Q. (2013) 219 Cal.App.4th 355, 363 (C.Q.).) At the hearing for the restraining order, "[p]roof may be by the application and any attachments, additional declarations or documentary evidence, the contents of the juvenile court file, testimony, or any combination of these." (Cal. Rules of Court, rule 5.630(e)(1).)
Evidence a parent has previously inflicted physical harm on a child is "'certainly sufficient,'" on its own, to justify the issuance of a restraining order. (In re Bruno M. (2018) 28 Cal.App.5th 990, 997 (Bruno M.); see In re B.S. (2009) 172 Cal.App.4th 183, 193 (B.S.).) However, issuance of a restraining order does not require evidence of previous infliction of physical harm, nor does it require evidence of a reasonable apprehension of future physical abuse. (C.Q., supra, 219 Cal.App.4th at p. 363; see B.S., supra, 172 Cal.App.4th at p. 193.) It is sufficient to show that the restrained person "disturb[ed] the peace" of the protected person. (§ 213.5, subd. (a); see In re S.G. (2021) 71 Cal.App.5th 654, 671 (S.G.); Bruno M., supra, 28 Cal.App.5th at p. 997 .)
A person to be restrained "disturb[ed] the peace" of the petitioner pursuant to section 213.5, subdivision (a), if "he or she engaged in conduct that destroyed the petitioner's 'mental or emotional calm.'" (S.G., supra, 71 Cal.App.5th at p. 671; see Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 401 ["'"Disturbing the peace"'" means "'conduct that destroys the mental or emotional calm of the other party'"]; cf. Fam. Code, § 6320, subd. (c) ["'disturbing the peace of the other party' refers to conduct that, based on the totality of the circumstances, destroys the mental or emotional calm of the other party"]; see e.g., Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1144 [defendant disturbed plaintiff's peace by his "course of conduct of contacting plaintiff by phone, e-mail, and text," and arriving at her residence uninvited and refusing to leave]; In re A.M. (2019) 37 Cal.App.5th 614, 619 [restraining order prohibiting contact between father and his daughter was appropriate where "there was sufficient evidence that any contact between [them] would jeopardize her emotional and psychological safety"].)
"'[A]ppellate courts apply the substantial evidence standard to determine whether sufficient facts supported the factual findings in support of a [section 213.5] restraining order and the abuse of discretion standard to determine whether the court properly issued the order.' [Citation.] When an appellant challenges 'the sufficiency of the evidence, . . . [i]f there is substantial evidence supporting the order, the court's issuance of the restraining order may not be disturbed.'" (S.G., supra, 71 Cal.App.5th at pp. 670-671.)
B. Analysis
Father argues that, notwithstanding his past behavior, the final restraining order was unjustified because he had not engaged in violent conduct since the first restraining order issued on October 16, 2020. He also contends the juvenile court cannot rely on events that occurred before the prior restraining order was issued on October 16, 2020. His arguments fail for several reasons.
Father does not challenge the grounds on which the trial court issued the prior restraining order on October 16, 2020.
As stated above, a parent's previous infliction of physical harm is sufficient to support a restraining order. (Bruno M., supra, 28 Cal.App.5th at p. 997.) Evidence was submitted that father not only physically harmed Amanda by causing her to suffer a concussion and bruising, but also had grabbed mother several times by her neck.
Notably, mother and the children sought to extend the original restraining order prior to its expiration at the one-year mark, but a failure by their attorney to submit the proper paperwork led to the order lapsing and a request for a new restraining order being submitted. As father acknowledges, a restraining order "may be renewed, upon the request of a party, . . . without a showing of any further abuse since the issuance of the original order." (Fam. Code, § 6345, subd. (a), italics added; see Ashby v. Ashby (2021) 68 Cal.App.5th 491, 509; Priscila N., supra, 17 Cal.App.5th at p. 1214 [restraining orders issues under section 213.5 are issued under the same standards provided for in the Family Code].) Father contends, however, that because the previous restraining order had lapsed, mother and Amanda had to show further abuse occurred to justify a new restraining order. Father's argument, which is unsupported by any authority, is not persuasive.
When a restraining order has been in place, and the protected party seeks to extend it, courts have found "[i]t would be anomalous to require the protected party to prove further abuse occurred in order to justify renewal of that original order. If this were the standard, the protected party would have to demonstrate the initial order had proved ineffectual in halting the restrained party's abusive conduct just to obtain an extension of that ineffectual order." (Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1284 (Ritchie); accord, Ashby v. Ashby, supra, 68 Cal.App.5th at p. 510.) The same logic applies here. Father cannot rely on the fact that the one-year protective order successfully prevented him from committing further acts of physical abuse to argue that no further restraining order is necessary once the original order has expired. Thus, no evidence of further acts of physical violence was required to justify the court's issuance of a new restraining order.
Nor does the fact that the restraining order has lapsed mean the prior abuse becomes irrelevant when determining whether a new restraining order is necessary. As with a request to extend a restraining order, in this situation where a one-year restraining order has just expired, "the initial order certainly is relevant and the underlying findings and facts supporting that order often will be enough in themselves to provide the necessary proof" to justify the issuance of a new restraining order. (Ritchie, supra, 115 Cal.App.4th at p. 1291.) Of course, "[a]lso potentially relevant are any significant changes in the circumstances surrounding the events justifying the initial protective order." (Ibid.) The facts presented to the juvenile court in connection with the second restraining order request reasonably included the same events that had been presented in the first application. The juvenile court also considered all the circumstances and events in the interim, and substantial evidence supports its implied decision that circumstances had not changed so as to render a restraining order no longer necessary.
Moreover, aside from the evidence of past physical abuse, the juvenile court heard evidence of father's violations of the original restraining order. Substantial evidence was presented that father engaged in behavior that rose to the level of harassment, stalking, and disturbing the peace of the protected parties. Father repeatedly attempted to speak with Amanda by tapping on her window at the family home, calling her on the telephone against her wishes, and messaging her through social media. Amanda had told her therapist that "father continue[d] to stalk her, press her and manipulate her . . . to letting him into the house, [and to] coerce her mother to drop [the] divorce." Amanda "expressed hopelessness" when detailing the recurring violations of the restraining order. Mother testified that father had been bringing up inappropriate subject matter on the phone with the children, which would upset them for several days. Mother also testified to father coming to the family home to store items in the garage in violation of the protective order. We therefore conclude there was ample evidence of additional behavior by father following the original order that supported issuance of the second restraining order.
II. Father's Second Amendment Claim is Forfeited
California law mandates an automatic firearm prohibition for anyone subject to a restraining order. (Fam. Code, § 6389, subd. (a) ["[a] person subject to a protective order . . . shall not own, possess, purchase, or receive a firearm or ammunition while that protective order is in effect"].) The restraining order issued by the juvenile court against father therefore included such a prohibition. On June 23, 2022, the United States Supreme Court issued its opinion in Bruen, which held that New York's "proper cause" requirement for an unrestricted license to carry a handgun outside the home impermissibly infringed on the right of law-abiding citizens to keep and bear arms in public for self-defense. On appeal, father contends that, pursuant to Bruen, the firearm prohibition in the restraining order violates his right to keep and bear arms. Respondents contend that father forfeited his Second Amendment challenge by failing to raise it below. We agree with respondents.
In the proceedings before the juvenile court, father objected to the issuance of the restraining order solely on the ground that it was not justified given his lack of recent violent or threatening conduct. He did not challenge the specific order prohibiting him from possessing firearms, on Second Amendment or any other grounds. "General objections are insufficient to preserve issues for review. [Citation.] The objection must state the ground or grounds upon which the objection is based." (In re E.A. (2012) 209 Cal.App.4th 787, 790.)
Federal courts apply the forfeiture doctrine for Second Amendment challenges made for the first time on appeal. (Compare U.S. v. Salley (1st Cir. 2011) 651 F.3d 159, 161, fn. 2 [defendant "did not raise the Second Amendment argument below in his motion for a new trial and therefore it is waived" on appeal] with United States v. Rahimi (5th Cir. 2023) 61 F.4th 443, 449 [reaching merits of Second Amendment claim where defendant had challenged constitutionality of firearm restriction in district court and renewed his constitutional challenge on appeal].) Similarly, in California state court, "'"[i]t is the general rule applicable in civil cases that a constitutional question must be raised at the earliest opportunity or it will be considered as waived."'" (Hale v. Morgan (1978) 22 Cal.3d 388, 394; see In re Sheena K. (2007) 40 Cal.4th 875, 880-881 (Sheena K.), quoting United States v. Olano (1993) 507 U.S. 725, 731 [113 S.Ct. 1770, 123 L.Ed.2d 508] ["'"[n]o procedural principle is more familiar to this Court than that a constitutional right," or a right of any other sort, "may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it"'"].)
"[T]he appellate court's discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue." (In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on other grounds as stated in In re S.J. (2008) 167 Cal.App.4th 953, 961-962.) Further, "[a]lthough an appellate court's discretion to consider forfeited claims extends to dependency cases [citations], the discretion must be exercised with special care in such matters." (Ibid.; accord In re T.G. (2015) 242 Cal.App.4th 976, 984; In re Elijah V. (2005) 127 Cal.App.4th 576, 582 [a "parent's failure to raise an issue in the juvenile court prevents him or her from presenting the issue to the appellate court"].) The decision whether or not to entertain a forfeited issue is entrusted to the appellate court's discretion. (Sheena K., at p. 887, fn. 7; People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.)
Factors relevant here in determining whether to consider the merits of the forfeited issue include (1) whether relevant new caselaw has developed since the trial court's ruling; and (2) whether the issue raises a pure question of law "presented by undisputed facts in the record before us that does not require scrutiny of individual circumstances, but instead requires the review of abstract and generalized legal concepts-a task that is suited to the role of an appellate court." (People v. Yarbrough (2008) 169 Cal.App.4th 303, 310.) In Sheena K., supra, 40 Cal.4th at page 888, our Supreme Court addressed whether a juvenile probationer may raise on appeal a constitutional challenge to a probation condition when he or she failed to object in the juvenile court. The court found that a facial challenge to a probation condition may be asserted where the asserted error presents "a pure question of law, easily remediable on appeal by modification of the condition." But the court cautioned that "'[t]raditional objection and waiver principles'" should be applied to an "as applied" constitutional challenge, i.e., where the challenge does not concern a pure question of law that can be resolved without reference to the particular facts of the case. (Id. at p. 889; see e.g., People v. Kendrick (2014) 226 Cal.App.4th 769, 778 [concluding defendant's failure to raise as applied constitutional challenge to probation condition in trial court "constitutes a forfeiture of his right to raise it on appeal," and "declin[ing] defendant's request that we exercise our discretion to consider the forfeited contention"].) These principles have been extended to govern Second Amendment claim on appeal. (See People v. Ellison (2011) 196 Cal.App.4th 1342, 1347 (Ellison).) In Ellison, supra, the appellate court reached the merits of the Second Amendment issue raised by the defendant, despite defendant's failure to object on those grounds in the trial court, because the issue was "'"a pure question of law which is presented by undisputed facts."'" (Id. at p. 1347, fn. 2.)
A "facial" challenge to the constitutionality of a statute, ordinance or provision considers only the text of the provision itself, not its application to the particular circumstances of an individual. (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.) On the other hand, an "as applied" challenge considers the facts of a particular case and whether in those circumstances the application of the provision deprived the individual to whom it was applied of a protected right. (Ibid.)
Although father correctly asserts that Bruen was decided only after the juvenile court issued the restraining order, we nevertheless decline his invitation to take up the forfeited Second Amendment claim. We do so because father makes an as applied challenge rather than a facial challenge to the order's firearm prohibition, asking us to consider the particular circumstances of his case in order to arrive at a determination that the restriction violates the Second Amendment. For instance, he argues that the restriction should not apply to him because he was not "convicted" of domestic violence, and the amended petition to which he pled no contest included allegations that he inflicted injuries on the children while acting in self-defense, not through intentional violence. Similarly, he points to the lack of evidence that he ever threatened mother with guns, and rather only appeared to be paranoid, had an explosive temper, and collected guns. He relies on other case-specific circumstances, such as his compliance with the initial removal order and the fact that he kept his gun collection locked in safes. Because his challenge on Second Amendment grounds is "premised upon the facts and circumstances of the individual case" (In re Sheena K., supra, 40 Cal.4th at p. 885), and these facts were not developed in the juvenile court proceedings with an eye to whether the firearm prohibition was unconstitutional, the issue is not suitable for our review on appeal.
We reject father's alternative request that we remand the matter for the juvenile court to hear evidence relevant to whether the firearm prohibition passes constitutional muster in light of Bruen. Father has not provided any authority supporting the proposition that an issue deemed forfeited should be remanded for consideration by the trial court.
DISPOSITION
The order is affirmed.
We concur: CURREY, Acting P. J., COLLINS, J.
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.