Opinion
B298676
03-27-2020
In re E.K. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. K.A., Defendant and Appellant.
Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant. Patricia K. Saucier, under appointment by the Court of Appeal, for Respondents minors E.K., B.K., A.K., and J.K. No appearance for Plaintiff and Respondent Department of Children and Family Services.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 19CCJP02288) APPEAL from an order of the Superior Court of Los Angeles County, Jean M. Nelson, Judge. Affirmed. Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant. Patricia K. Saucier, under appointment by the Court of Appeal, for Respondents minors E.K., B.K., A.K., and J.K. No appearance for Plaintiff and Respondent Department of Children and Family Services.
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K.A. (Mother) appeals from the juvenile court's permanent restraining order against her requiring that she stay away from her children, E.K. (born 2008), B.K. (born 2011), A.K. (born 2012), and J.K. (born 2016), except during monitored visitation. She contends insufficient evidence supports inclusion of the children as protected persons, and the order improperly forced her from her home. Respondent children urge that we affirm the order in its entirety. Respondent Los Angeles County Department of Children and Family Services (DCFS) did not request the order and took no position below on the order, and informed this Court it would not be filing a respondent's brief in the instant appeal. We affirm.
FACTUAL AND PROCEDURAL HISTORY
On January 17, 2019, DCFS received a referral alleging general neglect of the children by Mother and their father (Father). The referral alleged that three to four months earlier, Mother was hospitalized after threatening to hurt herself and her children, and after being released, she stopped taking the prescription medication that stabilized her condition.
On February 25, 2019, a social worker and an American Sign Language interpreter visited Mother (who was deaf), Father, and their four children, all of whom were living in a back house that belonged to the maternal grandmother (MGM). Mother became increasingly agitated by the DCFS workers, and angry with Father for speaking to them. During an interview, Father reported that in June 2018 Mother "pulled out a knife on [MGM]," and later did the same to him. The maternal uncle, who lived with MGM, told the social worker that Mother appeared unhappy, and that her personality had changed significantly in the last year. She was always yelling, especially at MGM. When she got upset, she would start recording things on her phone (which had no service). A.K., B.K., and E.K. denied being frightened at home or being aware of Mother's mental health issues. B.K., and E.K. both said they liked Mother's cooking. When asked how his Mother and Father got along, E.K., age 11, responded, "sometimes they get along . . . [but] I don't know if they're happy or not." When asked how Mother looked when she first met the social worker, E.K. said, "she look[ed] happy," but then stated, "I don't know feelings stuff."
An assistant principal reported that Mother had refused to approve the school's request to provide the special services A.K. and B.K. required to address hearing problems, and all three school-age children (A.K., B.K., and E.K.) were performing significantly below grade level, and were often absent.
MGM reported that in early 2016 Mother started hearing voices and arguing with people who were not there. In 2018 Mother became obsessed with the idea that Father was cheating on her with a neighbor, when he was actually going to work. According to MGM, "nobody could get her out of the idea that he was cheating." Her obsession became so extreme, that she told Father to stop going to work. She also sent the maternal uncle a text message that accused Father of cheating, and stated that she wanted to "kill her husband and her kids" in order to "end everything." When MGM allowed the children to play with a neighbor's children, Mother angrily followed her around with a knife, which frightened MGM so much that she called the police, and Mother was involuntarily hospitalized. Mother argued with school officials and blamed them for her children's poor academic performance when, according to MGM, she was actually at fault. MGM said the children had multiple unexcused absences because Mother "was not in the right state of mind." Mother would keep the children home from school whenever she felt unwell. The children ended up missing half of a year of school when she decided they needed to change schools. MGM said the children did not seem frightened of their mother, but whenever she felt Mother "might be acting different," she would bring the children to the main house with her until Father returned home.
Hospital records noted that Mother had been admitted because she "pulled a knife out towards her mother and children" and sent a text message threatening to harm the children and Father, and that she had denied engaging in any of the behavior. A DCFS referral related to Mother's June 27, 2018 hospitalization was closed as unfounded because the children had not witnessed Mother when she used a knife to threaten MGM or Father.
Mother admitted to the social worker that she believed people were following her. She also admitted that she had displayed a knife when she was angry with MGM. She also acknowledged having been diagnosed with schizophrenia, but declined mental health services, saying she no longer had the condition.
On April 11, 2019, DCFS filed a petition pursuant to Welfare and Institutions Code section 300 subdivision (b)(1), alleging there was a substantial risk that the children would suffer serious physical harm because Mother was incapable of providing regular care and supervision due to her mental and emotional problems, and because Father failed to protect the children. At the detention hearing, the juvenile court released the children to their parents on the conditions that Mother seek psychiatric treatment, take all medication as prescribed, sign all authorizations for release of information, not have access to knives or weapons at home, and agree to unannounced home visits.
All subsequent statutory references are to the Welfare and Institutions Code.
Father reported that Mother was often frustrated and overwhelmed, and would record videos of herself when she became angry. His making the report caused her to shout at him and the social worker. The maternal uncle reported that Mother would sometimes scream at and argue with imaginary people.
Subsequently, E.K. said Mother is "normal" but gets upset with him, and also yells a little at his brothers because they fail to heed her. Mother became angry when the social worker said she had violated the court's order by failing to take her medication. She also refused to sign a form to authorize DCFS to obtain a copy of her recent psychological assessment.
During a telephone interview on May 8, 2019, MGM told the social worker, "Mother says that people are going to kill [the children] and that there are paid assassins that will come to kill them. Yesterday she told me that she heard voices, that somebody was going to kill [the children] and shoot the family." MGM reported that Father cooked or took the children out to eat when Mother became unstable. He also had removed all knives from the house "to make sure the kids are protected." When asked if the children were exposed to Mother's hallucinations, MGM stated, "they've never mentioned specifics. They just say that their mom is sick[]." They said Father would tell them that Mother did certain things "because she is sick." MGM reported Mother would refuse to take medication "because she thinks that people want to kill the family." She also said Mother had become so upset after the most recent DCFS visit, that Mother almost needed to be hospitalized.
On May 9, 2019, the juvenile court removed the children from Mother, continuing them in Father's care. DCFS had requested expedited removal because Mother was "exhibiting dangerous behaviors that impact[ed] the safety of the children." The next day, DCFS workers went to the family home to remove the children. With significant coaxing, Mother reluctantly agreed to leave the home and go with MGM to a friend's home. Shortly thereafter, however, Mother returned to MGM's home while Father was traveling with the children.
On May 20, 2019, Father allowed Mother to drive with him and the children to an unspecified location, despite a court order that the parents were not to monitor each other's visits.
On May 21, 2019, the court made emergency detention findings and ordered the children to be detained with MGM, "so long as Mother [was] not living with her." Because Mother refused to leave MGM's home until later that evening, however, DCFS placed the children in foster care.
On May 22, 2019, the juvenile court ordered the children released to Father on the condition that they all live in MGM's home. The court granted Mother monitored visitation and issued a temporary restraining order directing that she have no contact with the children except during monitored visitation. The adjudication hearing was continued to August 28, 2019.
On June 20, 2019, the court issued a three-year, permanent restraining order pursuant to section 213.5, subdivision (a), directing Mother to stay away from the children except during monitored visitation. The court based the order on evidence that Mother's ongoing mental health issues were not stabilizing, and she had acted "in a threatening way" by refusing to leave MGM's home where the children were to be placed, and by threatening Father with a knife.
Mother appealed the order.
DISCUSION
Mother contends the evidence was insufficient to include the four children as protected persons in the permanent restraining order, and the order effectively evicted her from MGM's back house, which violated due process.
Under section 213.5, subdivision (a)(1), the juvenile court may issue an order "enjoining any person from molesting, attacking, striking, stalking, threatening . . . harassing . . . contacting, . . . or disturbing the peace of the child." Issuance of a restraining order under section 213.5 does not require "evidence that the restrained person has previously molested, attacked, struck, sexually assaulted, stalked, or battered the child." (In re B.S. (2009) 172 Cal.App.4th 183, 193.) Nor does it require evidence of a reasonable apprehension of future abuse. (Ibid.) The order may be issued any time failure to do so may jeopardize a child's physical safety. (Id. at p. 194.) In reviewing a restraining order, "we view the evidence in a light most favorable to the respondent, and indulge all legitimate and reasonable inferences to uphold the juvenile court's determination. If there is substantial evidence supporting the order, the court's issuance of the restraining order may not be disturbed." (In re Cassandra B. (2004) 125 Cal.App.4th 199, 210-211.)
As Mother points out, in In re Brittany K. (2005) 127 Cal.App.4th 1497, 1512, the Court of Appeal reviewed the juvenile court's factual conclusions for substantial evidence and its decision to impose the restraining order for abuse of discretion. Our conclusion here would be the same under that standard of review.
Here, substantial evidence supported a finding that failure to issue the permanent restraining order may have jeopardized the children's physical safety. By all accounts Mother suffered from ongoing mental health issues that she denied having and refused to treat, even when ordered to do so. There was evidence that Mother was easily angered, and often acted irrationally when challenged by social workers, family members, school officials, or even imaginary individuals. Mother's obsessive behavior prompted her to act aggressively towards those around her. Significantly, some of her delusions involved the children. She said "paid assassins" were going to kill them, and she threatened to end Father's perceived infidelity by killing him and the children. At the detention hearing the court ordered Mother to have no access to knives or weapons at home. Consistently, Father removed all knives from the house in order to protect the children, and would take them out to eat when Mother became unstable. Even so, Father increased the potential risk by allowing the children to visit with Mother in violation of the court's order that the parents not monitor each other's visits. The foregoing supported reasonable inferences that a restraining order was necessary because Mother was easily agitated and could react aggressively to other adults when the children are nearby, or possibly to the children themselves. (In re B.S., supra, 172 Cal.App.4th at p. 194.)
There was also substantial evidence Mother "disturb[ed] the peace" of the children. E.K. said Mother would get upset with him, and yell at his brothers. Both MGM and Father felt the need to proactively shield the children from Mother's behavior. Likewise, Father found it necessary to provide the children with an explanation for the unusual behavior. Mother's instability also disrupted family mealtimes. The foregoing supported reasonable inferences that the children had been exposed to, and disturbed by Mother's behavior. Evidence that Mother's irrational behavior directly impacted the children's performance at school was substantial evidence that she had also molested the children, as that term is used for purposes of section 213.5, subdivision (a). (In re Cassandra B., supra, 125 Cal.App.4th at p. 212 [the term "molest" in section 213.5 may "generally refer to conduct designed to disturb, irritate, offend, injure, or at least tend to injure, another person"].)
Mother argues there was no evidence that she had been violent in front of the children, noting that the children denied being afraid of her. Substantial evidence supports an inference that the children were too young to appreciate the potential threat to them from Mother's behavior. For example, E.K. thought Mother appeared happy, when she was actually extremely angry with DCFS workers. Even so, section 213.5 does not require evidence that a restrained person has been violent around a child. (In re Bruno M. (2018) 28 Cal.App.5th 990, 998.) It requires only that failure to issue a restraining order may jeopardize the child's physical safety. (In re B.S., supra, 172 Cal.App.4th at p. 194.)
Mother argues that initially releasing the children to her care even after DCFS was aware of the knife incident suggests they were in no need of protection from her. We disagree. Release of the children to both parents was contingent on Mother's seeking treatment, taking prescribed medications, and signing a release form, which she failed to do.
Mother contends the restraining order was a "de facto removal" order that improperly deprived her of a home, because it excluded her from MGM's back house even though it was not Father's "dwelling," as section 213.5, subdivision (a)(2) required, and because it bypassed the stringent requirements set forth in section 361, subdivision (c) for removal of a child, unduly impinging upon her due process rights. We disagree. The order enjoined Mother to stay away from the children, as authorized by section 213.5, subdivision (a)(1). It did not exclude her from MGM's house, and thus did not require the court to make the specific findings set forth in section 213.5, subdivisions (a)(2) and (e)(2). It also did not require her to leave any specific dwelling. To the contrary, for instance, rather than forcing Mother to leave, DCFS placed the children in foster care when they could not be placed in MGM's back house while Mother was still there. Finally, section 213.5 authorizes a juvenile court to issue an appropriate protective order any time "[a]fter a petition has been filed." (§ 213.5, subd. (a).) Mother offers no specific argument or legal authority supporting her contention that restraining orders must comply with the requirements in section 361 regarding removal of a minor who has already been "adjudged a dependent child of the court."
DISPOSITION
The juvenile court's permanent restraining order is affirmed.
NOT TO BE PUBLISHED
CHANEY, Acting P. J. We concur:
BENDIX, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.