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In re K.W.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
Jun 13, 2012
A133547 (Cal. Ct. App. Jun. 13, 2012)

Opinion

A133547

06-13-2012

In re K.W., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. DONNA R., Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Alameda County Super. Ct. No. OJ10014811)


I. INTRODUCTION

Appellant, Donna R. (Mother) challenges the imposition of a protective order under Welfare and Institutions Code section 213.5, which, she argues, was a de facto permanent injunction and, therefore, procedurally defective. We disagree, find that substantial evidence supports the juvenile court's protective order, and affirm that order.

All subsequent statutory references are to the Welfare and Institutions Code.

II. FACTUAL AND PROCEDURAL BACKGROUND

The detention, jurisdiction and disposition reports and hearings evidence a pattern of abusive behavior on Mother's part toward her daughter, K.W. and her daughter's father. This behavior, as alleged in the section 300 petition filed on May 5, 2010, and found true by the court following a contested jurisdiction hearing held on September 7, 2010, is detailed in the following summary.

K.W. was taken into protective custody after she reported to her sixth grade teacher on April 30, 2010, that the day before Mother tied her wrists together and struck her with a switch. K.W. had a bruise on her lower right arm that was 4-5 inches long and an inch wide. She had two bruises on her left leg that were parallel to each other and about one inch wide and three inches long. These bruises extended down the bottom of her left leg. She also had a circular bruise about the size of a quarter and two other non-distinct shaped bruises on her left leg near the other bruises on that leg. In addition, Mother had a history of slapping K.W. on the face as punishment.

After she reported this abusive behavior to the teacher at her school, K.W. was afraid to go home to Mother's house. She called her father and asked him to pick her up from school. Mother hit Father in the face—giving him a mark on his face and breaking his glasses—in order to prevent him from picking up K.W. after school. Mother then left with K.W.

The next day, May 1, 2010, K.W. was visited at her mother's home by a County Emergency Response Worker. At that time, she denied the facts she'd earlier reported to her teacher. Mother denied that she had in any way physically abused her daughter. However, she had no explanation for the bruises on K.W.'s arm. During a conversation with an Oakland police officer at her school, K.W. demonstrated how Mother tied her wrists together and hit her with a switch. A second Emergency Response Worker substantiated the allegations of physical abuse. After the worker spoke to Mother about the abuse, Mother again denied that she had anything to do with K.W.'s injuries, but then said she punished K.W. because she didn't get her permission to go to the movies.

At a meeting on May 4, 2010, with Agency social workers, Mother denied that she had physically disciplined K.W. and attributed her bruises to an incident in which K.W. fell downstairs. The next day, Mother told the Agency social worker that she did not want K.W. placed with Father because of "bitterness" between them. Ultimately, however, Mother admitted that she had caused K.W.'s injuries.

In an addendum report filed in preparation for the contested jurisdiction hearing, the Agency described an incident in which Mother and her sister appeared at Father's home and took pictures of Father's car. Shortly afterwards, Father requested a no-contact order against Mother, whom he did not want to come to his house. During a visit (which led to an Agency recommendation that Mother's visits with K.W. be suspended), Mother was agitated and antagonizing toward the agency worker and, when K.W. appeared to be uncomfortable with Mother, Mother nevertheless continued to discuss her dependency case with the agency worker rather than focus on the reason for the visit: her daughter. Ultimately, when Mother became rude and visibly irritated with the Agency worker, the worker told Mother the visit was at an end. Mother then stood up, leaned over to her daughter and said, "[y]ou and your father have a nice life. I'm done with you." K.W. was shocked and began to cry and shake. K.W. asked that visits with Mother be suspended until the contested jurisdictional hearing was held. At that hearing, the court removed K.W. from Mother's home and placed her with Father.

The Agency's reports continued to describe abusive behavior on Mother's part. In its February 18, 2011, six-month review hearing report, the Agency stated that although Mother had completed an anger management program and was participating in individual and family therapy with K.W., Mother, a month earlier, had an interaction in which Mother and K.W. got into a heated argument in which, according to K.W., Mother blamed her for the family's involvement with the Agency. After this conversation, K.W. again requested that Mother not be allowed to visit her.

In its 12-month review report, the Agency described two separate incidents in which Mother came to K.W.'s school. K.W. was upset by these visits and ran away from Mother. K.W. again said that she did not want to see Mother.

At this point, Father sought a temporary restraining order against Mother. In his declaration in support of this request, Father described the event at K.W.'s school, in which Mother hit him in the face when he tried to bring K.W. home with him. He also described Mother's unexpected appearance at his house on June 19, 2010, in which Mother took photographs of Father's car and apartment. Father stated that some time later his apartment burned down in a "mysterious" fire. On May 23, 2011, Mother came to K.W.'s school even though the principal asked her not to return. Mother cursed at K.W. when she ran away from Mother, which disturbed K.W., who began to cry. On June 6, 2011, at a child support hearing, Mother spit in Father's face, and said, "[g]o back and tell them Bitch my word against yours." Father also saw Mother drive by his workplace and on August 16, 2011, Mother went to Father's workplace and gave his boss a hand-written letter that made what Father characterized as "all kinds of false accusations." K.W. told Father than she did not want to have anything to do with Mother and wanted a restraining order to protect her from Mother.

Mother denied being involved in the fire and stated that her sister was the person who went to the Father's workplace and that she did so in order to serve legal documents on him. She stated that these documents were not hand-written.

In its interim review report dated October 3, 2011, the Agency recommended that dependency jurisdiction be dismissed and that Father be given sole custody of K.W. The report also referred to the fact that Mother and K.W. had a "very conflicted relationship" and that there had been no visits between the two for six months.

On October 3, 2011, the court heard both the contested Agency recommendation regarding the dismissal of dependency jurisdiction and also Father's request for a temporary restraining order. The court granted Father's request on the basis of what it described as Mother's pattern of behavior and her "volatility."

At that time, the court calendared a two-day hearing on the contested permanent restraining order (Father filed an application and affidavit in support of this order the next day). The court also scheduled a third day for the contested review hearing.

The hearing on Father's application for a permanent restraining order was scheduled for October 11, 2011. At that time, the court indicated that it would not be present after October 18, 2011, the date the temporary restraining order would expire. The parties agreed to return on October 18, 2011, despite the fact that the court had already indicated it could not finish the hearing on the permanent restraining order in a single day.

Apparently, earlier the court had denied K.W.'s application for a temporary restraining order.

The matter of Father's request for a permanent restraining order came up on October 18, 2011, at the end of the court day. The court stated that due to the condition of the court's calendar, it would not be able to hear evidence for and against the permanent restraining order. Instead, the court denied the permanent restraining order and issued a "full stay away order" including the instruction that Mother "stay away from the residence, place of employment, vehicles, and from both individuals until further order of the court." Counsel for Mother objected to this order, stating that "it's essentially a de facto restraining order . . . ."

The court explained that "I have a lot of time away from the court and the state actually coming up. In the next two weeks I'm not here very much at all, and that's a principal reason why I'm going to take the action that I took. I need to hear this case, I believe. However, if anyone believes that they are entitled to a restraining order, do not hesitate to file."

Counsel for K.W. did not object to the stay-away order, pointing out that "we come back in a month, that will show the court one way or the other as to the necessity to maintain the stay away order, impose a restraining order or proceed with custody order."

The matter was continued to November 15, 2011. This timely appeal of the juvenile court's protective order followed.

III. DISCUSSION

Section 213.5 permits the juvenile court to issue an order "enjoining any person from molesting, attacking, striking, sexually assaulting, stalking, or battering the child . . . ." (§ 213.5, subd. (a).) Certainly, then, evidence that a person has previously molested, attacked, struck, sexually assaulted, stalked, or battered the child is sufficient to justify such a protective order. We review such an order under the substantial evidence standard of review. (In re B.S. (2009) 172 Cal.App.4th 183, 193.)

The record contains substantial evidence to support the protective order. Mother previously physically abused K.W. in the incident that gave rise to the section 300 petition. Mother hit Father in the face in front of K.W., and came to Father's house, where she took photographs of his car and his house. After the visit in which she attacked Father, Mother was asked not to return to K.W.'s school. Nevertheless, she appeared on several occasions, to K.W.'s distress. She also made statements to K.W. during a visit that were upsetting to K.W. In his request for a restraining order, Father also described two incidents: one in which Mother spit in his face, and another in which she gave his employer a letter in which she made false accusations against Father. This evidence was more than sufficient to justify the issuance of the protective order.

Mother, however, argues that the documented incidents are not recent and, therefore, do not justify the issuance of the protective order, presumably because they do not evidence a current threat of potential harm to K.W. We disagree. In In re B.S., supra, 172 Cal.App.4th at page 194, the court held that the propriety of such an order is not measured by this standard but, rather, "the better analogy is to Family Code section 6340, which permits the issuance of a protective order under the Domestic Violence Prevention Act in the first instance, if 'failure to make [the order] may jeopardize the safety of the petitioner . . . .' [Citations.]" Certainly, here, the juvenile court had substantial evidence that Mother's behavior placed K.W. and Father's physical and emotional well-being in jeopardy and, therefore, did not err in concluding that the protective order was necessary. We will not, as Mother invites us to, "second-guess the juvenile court on this point." (Ibid.)

Mother also argues that the court improperly relied on unsubstantiated allegations contained in Father's request for a permanent injunction. Regardless of whether Mother is correct in her characterization of these allegation, our conclusion regarding whether substantial evidence supports the court's order would be the same regardless of whether we include these later incidents or not.
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Finally, Mother argues that the protective order is a de facto permanent restraining order and, therefore, the court erred in issuing it because it did so in the absence of the statutorily-mandated procedure for issuing a permanent restraining order. We disagree. The juvenile court made clear that it was not possible to hear the request for a permanent restraining order at that hearing, given time constraints. There is no evidence in the record that the juvenile court intended that the protective order act as a substitute for the permanent restraining order. The trial court had the authority to issue the protective order, which, as we have held, is supported by substantial evidence. The fact that it did so in order to protect K.W. and Father from potential harm after the expiration of the temporary restraining order and prior to the hearing on the permanent injunction, does not render the court's order erroneous.

IV. DISPOSITION

The order appealed from is affirmed.

___________________________

Haerle, J.
We concur: ___________________________
Kline, P.J.
___________________________
Lambden, J.


Summaries of

In re K.W.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
Jun 13, 2012
A133547 (Cal. Ct. App. Jun. 13, 2012)
Case details for

In re K.W.

Case Details

Full title:In re K.W., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

Date published: Jun 13, 2012

Citations

A133547 (Cal. Ct. App. Jun. 13, 2012)