Opinion
B305841
02-24-2021
In re CHANCE B., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff, v. A.B., Defendant and Appellant; L.B., Defendant and Respondent.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant. Lisa A. Raneri, under appointment by the Court of Appeal, for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 18CCJP03092) APPEAL from an order of the Superior Court of Los Angeles County, Michael E. Whitaker, Judge. Affirmed. Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant. Lisa A. Raneri, under appointment by the Court of Appeal, for Defendant and Respondent.
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A.B. (Mother) appeals from an order denying her request to renew her restraining order protecting her from L.B. (Father). Mother contends the juvenile court abused its discretion in denying her renewal request because she had a reasonable apprehension of future abuse. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Dependency Case
Mother and Father are the parents of Chance B. On May 15, 2018 the Los Angeles County Department of Children and Family Services (Department) filed a petition under Welfare and Institutions Code section 300, subdivisions (a) and (b)(1), alleging Father physically abused then-10-year-old Chance by repeatedly striking Chance in the face and leg with Father's hand. The petition further alleged Father had a history of substance abuse, was under the influence of alcohol when Chance was under his care, and had a history of domestic violence with Mother. On March 29, 2018 Father repeatedly struck Mother in the face with his hand causing her to fall, and Mother pointed a knife at Father. Further, Father hit Mother on prior occasions.
Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On September 19, 2018 the juvenile court sustained the allegations in the petition. The court removed Chance from Father and placed him in Mother's home. The court ordered Mother to participate in individual counseling to address domestic violence and other case issues. The court ordered Father to participate in a full drug and alcohol program with aftercare, random weekly drug testing, a 12-step program with court card and sponsor, a 26-week domestic violence program, and conjoint counseling with Chance. The court granted Father monitored visitation.
On December 5, 2018 the Department filed a subsequent petition under section 342 alleging Mother physically abused then-11-year-old Chance by slapping him on multiple occasions and on one occasion hitting his left arm with a phone cord and plastic hanger. At the December 6 detention hearing, the juvenile court detained Chance and removed him from Mother's home. The court denied Father's request for physical custody of Chance. On February 4, 2019 the court sustained the allegations against Mother and removed Chance from Mother's physical custody. The court denied Father's request for release of Chance to Father's home. B. Mother's Request for a Restraining Order
At the Department's request, the juvenile court deemed the petition a supplemental petition under section 387.
On January 3, 2019 Mother filed a request for a restraining order against Father. The request alleged Father repeatedly contacted Mother in a threatening way by text messages and phone calls, and he appeared at her residence without a reason or permission. Mother feared for her safety based on Father's history of domestic violence. At a hearing on the same date, the juvenile court heard testimony from Mother, Father, Chance, the maternal grandmother, and Father's friend Jennifer B. Mother testified Father sent her threatening text messages and left 50 voicemail messages for her in the prior six months. Mother did not recall receiving any phone calls from Father in the prior two months, but if she had, it was "maybe one or two" calls. Father had complied with a December 2018 temporary restraining order by not calling or texting Mother. After Father was served with the temporary restraining order, Father came by Mother's home with Chance, but he did not enter her home or interact with her.
On October 11, 2018 Father sent a text message to Mother stating, "Ur a sick woman. . . An I ain't changed nothin! I luv my son mo den anything in dis world. . . An he [and I] will make it! . . . An u will look up an wish u didn't do us dirty like dis! . . . WATCH." Mother replied, "So are u back to threats now?" Father responded, "Threats? . . . . Ummmm i didn't threaten u at all. . . . Can u read? What part even sounded like a threat? . . . . Ur a sad woman an da worst mother ever, but u gotta live wit dat. . . . . Ta choose a man over ur son is sad. . ." Later, Father wrote, "Terrible mother. . . . It aint him or me, its u! . . . But ur perfectly happy shittin on us an blaming us. . . . . So enjoy it while it lasts." Mother responded, "I still have no idea what your talking about and I'm not with the threats but whatever. Like I said u can say whatever you want about me. I'm not gonna go back and forth. I'm not blaming anybody or pointing fingers. God bless you!" Father replied, "Lmao. . . Why da fuck do u keep saying threats? . . . . I didn't make or say anything remotely close ta a threat! . . . Smh. . . An god bless u also deadbeat mom."
Mother obtained a temporary restraining order from the family court in December 2018, but the court referred Mother to the juvenile court for issuance of a restraining order.
After hearing argument from counsel, the juvenile court granted Mother's request for a temporary restraining order and set a hearing on the restraining order for the next day. At the January 4 hearing, after counsel presented further argument, the court issued a one-year restraining order protecting Mother from Father. C. Mother's Request To Renew the Restraining Order
On January 3, 2020 Mother filed a request to renew the restraining order against Father. In support of her request, Mother stated, "Mother believes that she has seen [Father's] vehicle outside of home in recent months. This is the same behavior [Father] engaged in prior to the issuance of the restraining order. Mother is fearful that without the ongoing protection of the restraining order, [Father's] behavior will escalate placing her at risk of ongoing violence." The juvenile court granted Mother a temporary restraining order.
After several continuances at Mother's request, on February 25, 2020 the juvenile court held a hearing on Mother's request to renew the restraining order. Mother testified she had been in a romantic relationship with Father for approximately 17 years. During the course of their relationship, Father hit Mother approximately 20 times, most recently during the March 2018 incident. Since the issuance of the January 2019 restraining order, Mother had seen a white Dodge Charger, which she believed was Father's car, near her home on at least three occasions. Mother testified, "I feel that if there was no restraining order, then he would continue his behavior that he was before. And I don't feel safe. I don't feel comfortable. I don't feel relaxed. I don't feel like I can get on with my life if there's not some sort of stipulation in place to keep him away from me."
On cross-examination, Mother acknowledged she did not keep a log of the dates she saw the vehicle, but she recalled the last time she saw it was in November 2019, around her birthday. Mother saw the vehicle driving by on the street in front of her house, but she could not see the driver or the license plate. Mother testified she did not contact the police because "[a] car driving by doesn't give me very much time to do anything" and it "[d]idn't warrant that." She explained, "I wasn't exactly sure who was driving the vehicle, but it was a vehicle similar to the one that [Father] has and it gave me an idea it could have been him." Mother testified the last time Father had contacted her was in November 2018.
Father testified he last drove through Mother's neighborhood three to four months prior to the January 4, 2019 restraining order, which was when he still had contact with Mother. Father had not contacted Mother since issuance of the restraining order. He was in a car accident on November 28, 2019, and his vehicle was deemed a total loss. Father did not have reason to contact Mother, and he was "busy trying to raise" Chance. Father testified if the juvenile court issued a stay-away order instead of a restraining order, he would abide by it.
On March 12, 2020 the juvenile court denied Mother's request to renew the restraining order against Father. The court explained, "[B]ased on [M]other's own testimony . . . there's no specific allegations or competent, sufficient evidence that the father . . . has violated the restraining order. [¶] In addition, the court finds her suspicion that [F]ather may have violated the restraining order, based on seeing a vehicle similar to his in her neighborhood, to me is not sufficient grounds in light of the fact that even [if] she had a reasonable suspicion that that was [F]ather in his vehicle in her neighborhood that may have been in violation of a restraining order, she took no steps to effectuate the terms of the restraining order. She never called the police. The main part is that she didn't call the police."
The court added, "[I]n my view, any reasonable person in that case, fearing further abuse by a restrained party and if there is violations of a restraining order, would contact law enforcement to ensure that there is compliance and that, in fact, if it was [F]ather violating the restraining order, then law enforcement could have taken steps to ensure that there's no further violations. [¶] In addition, [M]other took no pictures of the vehicle that she suspected [F]ather was driving in the neighborhood, didn't take down the license plate number. She was very vague about the timing of when she saw [F]ather's vehicle. And, according to her own testimony, the last time she saw the vehicle in the neighborhood was a few months ago. [¶] So the court, in the totality of reviewing, again, the basis for the original order being issued, [M]other's testimony, as well as [F]ather's testimony, the court cannot find that Mother has provided sufficient evidence . . . that there is a reasonable apprehension of fear of future abuse."
Mother timely appealed.
DISCUSSION
A. Renewal of a Domestic Violence Restraining Order
Family Code section 6345 governs renewal of a domestic violence restraining order by the juvenile court. (Garcia v. Escobar (2017) 17 Cal.App.5th 267, 271.) Family Code section 6345, subdivision (a), provides for renewal of a restraining order "[i]n the discretion of the court, . . . upon the request of a party, either for five years or permanently, without a showing of further abuse since the issuance of the original order, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party." Although the protected party need not show further abuse, the court may only renew the protective order "if, and only if, it finds by a preponderance of the evidence that the protected party entertains a 'reasonable apprehension' of future abuse." (Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1290 (Ritchie); accord, In re Marriage of Martindale & Ochoa (2018) 30 Cal.App.5th 54, 59 (Martindale).)
As we explained in Ritchie, supra, 115 Cal.App.4th at page 1290, this standard sets an objective test for renewal of a protective order. "It is not enough [the requesting] party entertain[s] a subjective fear the party to be restrained will commit abusive acts in the future. The 'apprehension' those acts will occur must be 'reasonable.' That is, the court must find the probability of future abuse is sufficient that a reasonable woman (or man, if the protected party is a male) in the same circumstances would have a 'reasonable apprehension' such abuse will occur unless the court issues a protective order." (Id. at p. 1288; accord, Cueto v. Dozier (2015) 241 Cal.App.4th 550, 561 (Cueto).)
"'In evaluating whether the requesting party has a reasonable apprehension of future abuse, "the existence of 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 satisfy that test."'" (Martindale, supra, 30 Cal.App.5th at p. 59; accord, Lister v. Bowen (2013) 215 Cal.App.4th 319, 333 (Lister).) Other potentially relevant factors include "'any significant changes in the circumstances surrounding the events justifying the initial protective order. For instance, have the restrained and protected parties moved on with their lives so far that the opportunity and likelihood of future abuse has diminished to the degree they no longer support a renewal of the order?' [Citation.] Also relevant are the seriousness and degree of risk, such as whether it involves potential physical abuse, and the burdens the protective order imposes on the restrained person, such as interference with job opportunities." (Lister, at p. 333; accord, Cueto, supra, 241 Cal.App.4th at p. 560.)
"We review an appeal from an order denying a request to renew a domestic violence restraining order for abuse of discretion. [Citations.] [A]n abuse of discretion occurs where '"'the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.'"' However, the question of 'whether a trial court applied the correct legal standard to an issue in exercising its discretion is a question of law [citation] requiring de novo review.'" (Cueto, supra, 241 Cal.App.4th at p. 560; accord, Martindale, supra, 30 Cal.App.5th at p. 59.) B. The Juvenile Court Did Not Abuse Its Discretion in Denying Mother's Request for Renewal of the Restraining Order
Mother contends the juvenile court abused its discretion in denying her request for renewal of the restraining order against Father because she established reasonable apprehension of his future abuse based on the 20 prior instances of Father's domestic violence against her during their 17-year relationship, including the March 2018 incident, and his physical abuse of Chance in May 2018 (striking his face and leg). Further, Father sent abusive text messages to Mother prior to issuance of the 2019 restraining order. And more recently, Mother saw a vehicle near her residence that resembled Father's white Dodge Charger. Mother argues the abuse was likely to continue absent a restraining order because she and Father continued to live in the Los Angeles area, with ongoing visitation with Chance.
Contrary to Mother's assertion on appeal, the juvenile court considered the facts that supported issuance of the initial restraining order, but it found she did not have a reasonable apprehension of future abuse. Mother conceded Father last contacted her in November 2018, prior to issuance of the restraining order. Her apprehension of future abuse was principally based on her observation of a white Dodge Charger that looked like Father's vehicle drive by her home on three occasions. But as the juvenile court noted, Mother did not take any photographs of the vehicle, keep a log of when the vehicle drove by, or write down the license plate number. Nor did she see whether it was Father who was driving, stating, "I wasn't exactly sure who was driving the vehicle, but it was a vehicle similar to the one that he has and it gave me an idea it could have been him." And Father denied he had driven near Mother's home since issuance of the restraining order. Mother's explanation for why she did not call the police to enforce the restraining order was that seeing the vehicle drive by her home "[d]idn't warrant that." Under these circumstances, the juvenile court did not abuse its discretion in finding that Mother's speculation that Father had violated the restraining order by driving in front of her home was not sufficient to establish a reasonable apprehension of future abuse. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 864 ["Speculation, however, is not evidence."]; Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 892 [same].)
Further, although Father's commission of domestic violence during his relationship with Mother, including his striking her in March 2018, was relevant to renewal of the restraining order (Cueto, supra, 241 Cal.App.4th at p. 560; Lister, supra, 215 Cal.App.4th at p. 333), Father presented evidence of changed circumstances since issuance of the January 2019 restraining order. Father completed a 26-week domestic violence program on March 29, 2019, two months after the court issued the restraining order. He testified he was too busy caring for Chance to contact Mother, and he had no reason to do so. Father also testified he would abide by a stay-away order if the court entered one. On these facts, the juvenile court did not "'"'"exceed[] the bounds of reason"'"'" in finding Mother's fear of future abuse was not reasonable and denying her request to renew the restraining order. (Martindale, supra, 30 Cal.App.5th at p. 59 [trial court did not abuse its discretion in denying renewal of restraining order where protected person testified she was in fear of ex-husband because of prior domestic violence and seeing ex-husband on multiple occasions in public, but evidence showed ex-husband intentionally attempted to avoid any contact with protected person]; cf. Cueto, at p. 560 [trial court abused discretion in denying renewal of restraining order where father of protected person's child had punched her and threw her to ground at child's baseball game, previously knocked her out, failed to enroll in court-ordered anger management classes, had not moved on with his life, and possibly drove by her house on two occasions].)
DISPOSITION
The order denying Mother's request for renewal of the restraining order is affirmed.
FEUER, J. We concur:
PERLUSS, P. J.
Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.