Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. CK65823, D. Zeke Ziedler, Judge.
Thelma M. Gonzalez, under appointment by the Court of Appeal, for Defendant and Appellant.
Ernesto Paz Rey, under appointment by the Court of Appeal, for Minor.
Jesse F. Rodriguez, under appointment by the Court of Appeal, for Respondent Samuel M.
KRIEGLER, J.
In this dependency case, Yolanda M. (mother) appeals from the issuance of a restraining order pursuant to Welfare and Institutions Code section 213.5, limiting her contact with her son, Matthew M., and Matthew’s father, Samuel M. (father). She contends substantial evidence does not support the order. We find substantial evidence to support the order and affirm.
Hereinafter, all statutory references will refer to the Welfare and Institutions Code, unless otherwise noted.
STATEMENT OF FACTS AND PROCEDURE
Matthew was born in September 2002 to mother and father. Matthew lived with mother. Mother used drugs and had a long history of being physically and emotionally abused by boyfriends. From 2003 to 2006, mother and her live-in boyfriend frequently used methamphetamines. The boyfriend regularly physically abused mother in Matthew’s presence, and on three occasions almost killed her. After the boyfriend went to prison in 2006, mother and Matthew were homeless and transient. Mother continued abusing drugs. Matthew often went hungry. In the meantime, father initiated family court proceedings for custody. Although she was aware of the proceedings, mother did not appear in court. Father obtained sole legal and physical custody of Matthew in September 2006, but he was unable to locate Matthew.
On November 16, 2006, the Department of Children and Family Services (the Department) became involved, when mother alerted the authorities that Matthew was missing. Matthew was found and returned to mother, who was required to take a drug test. Mother agreed to a subsequent meeting with the social worker to arrange a safety plan for Matthew, but knowing she failed the test and fearing she would lose custody of Matthew as a result, mother fled.
A section 300 petition was filed on November 22, 2006, and a detention hearing was held. Mother did not appear. The dependency court ordered Matthew released to father once Matthew was located and issued a warrant for mother’s arrest.
Mother remained at large with Matthew until January 5, 2007, when she was stopped for a traffic violation. Matthew was released to father. Mother appeared at a hearing on January 10, 2006, to recall the warrant, and the matter was continued to January 25, 2007.
On January 25, 2007, Matthew was declared a dependent of the court based on sustained allegations under section 300, subdivision (b) that Matthew was at risk of suffering serious physical harm or illness as a result of mother’s failure to adequately protect Matthew and mother’s inability to provide regular care due to her substance abuse. The sustained factual allegations were: “mother . . . has a history of substance abuse including alcohol which renders . . . mother incapable of providing the child with regular care and supervision. On 11/16/06, the mother had a positive toxicology screen for amphetamine and methamphetamine and the mother has a criminal history of a conviction for driving under the influence of alcohol. . . . [¶] On a prior occasion, . . . mother . . . and the mother’s male companion . . . engaged in a violent altercation in the child’s presence[, which] endanger[ed] the child’s physical and emotional health and safety and place[d] the child at risk of physical and emotional harm and damage.” Custody was taken from mother, Matthew was placed in home-of-parent-father, the Department was ordered to provide family reunification services to mother, and mother was ordered to participate in counseling and other rehabilitation services. The dependency court granted mother monitored visits, which the Department was given discretion to liberalize.
At the hearing, father filed an ex parte application for a restraining order pursuant to section 213.5 based on the following allegations: “Mother continues to call the father late at night and harassing the father – mother had previously AWOL with the minor and just returned 1/5/07. Also, the [Department] reports information.” Matthew joined in the application. Counsel for mother objected on the ground the allegations were insufficient. The dependency court granted a temporary restraining order, based on the following factual findings: “The [Department’s] report and the fact that the mother continues to call the father’s home and harass the father and his family [mother] had been AWOL with the minor and only recovered on 1/5/07. Mother poses a risk.” The temporary restraining order provided: “[Mother] must not harass, attack, strike, threaten, assault . . ., hit, follow, stalk, molest, destroy personal property of, disturb the peace of, keep under surveillance, or block movements of [father and Matthew]. [¶] [Mother] must not contact (either directly or indirectly), or telephone, or send messages or mail or e-mail to [father or Matthew]. [¶] . . . [¶] [Mother] must stay away at least 100 yards from [father and Matthew, their residence, place of work, school, and vehicle.]” Mother was granted weekly monitored visits with Matthew at the Department’s office. The temporary restraining order was set to expire on February 6, 2007.
On February 13, 2007, the dependency court held a further hearing on the restraining order. Mother was not present in person at the hearing. Counsel argued there was no showing mother made any threat of harm when she phoned father and an admonishment to not call at night would be sufficient. The dependency court reviewed the court file and issued a restraining order under section 213.5 in the same form as the temporary restraining order, with an end date of February 12, 2010.
DISCUSSION
Mother contends substantial evidence does not support the finding that issuance of the restraining order was required to protect father and Matthew. Father and Matthew contend the order is supported by substantial evidence. We hold the order is supported by substantial evidence.
Mother also contends in her reply brief, the order must be reversed because it violates Family Code section 6323 and is vague. We do not consider contentions that are first raised in a reply brief. (Mocek v. Alfa Leisure, Inc. (2003) 114 Cal.App.4th 402, 409.)
Initially, the Department was the only party to file a respondent’s brief. It appeared to the Court that the Department had no standing as a respondent in this appeal, as the application for a restraining order was filed by father and joined by Matthew, and the Department was not a party to the application and took no position in the proceedings below. It further appeared father and Matthew have standing as respondents in the appeal because they were the applicants. Moreover, they were the protected parties. (Cal. Rules of Court, rule 8.10(2) [defining “respondent” as “the adverse party”].) We advised the parties of these observations, invited supplemental briefing on the issue of the Department’s standing, stated father and Matthew could file respondent’s briefs, and, at father’s and Matthew’s requests, appointed counsel to represent father and Matthew in the appeal. The Department did not file a supplemental brief. We conclude the Department has no standing in the appeal. The Department’s brief is stricken.
A restraining order issued under section 213.5 is reviewed for abuse of discretion. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1512.) We will not reverse unless the exercise of discretion exceeds the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) When an order is challenged on the ground that the findings are not supported by substantial evidence, we apply the substantial evidence standard of review to the trial court’s findings of fact. We view the evidence in the light most favorable to the order, indulge in all reasonable inferences to uphold the order, resolve conflicts in favor of the order, and ask “whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted,” that supports the findings. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.) If the findings are supported by substantial evidence, the issuance of the restraining order will not be found to be an abuse of discretion. (In re Brittany K., supra, 127 Cal.App.4th at p. 1512; see also Alexander v. Superior Court (1994) 22 Cal.App.4th 901, 915-919; In re Daniel C. H. (1990) 220 Cal.App.3d 814, 839.)
Section 213.5, subdivision (a) provides in pertinent part: “After a petition has been filed pursuant to Section 311 to declare a child a dependent child of the juvenile court, and until the time that the petition is dismissed or dependency is terminated, upon application in the manner provided by Section 527 of the Code of Civil Procedure, the juvenile court may issue ex parte orders (1) enjoining any person from molesting, attacking, striking, sexually assaulting, stalking, or battering the child or any other child in the household; (2) excluding any person from the dwelling of the person who has care, custody, and control of the child; and (3) enjoining any person from behavior, including contacting, threatening, or disturbing the peace of the child, that the court determines is necessary to effectuate orders under paragraph (1) or (2). A court may also issue an ex parte order enjoining any person from contacting, threatening, molesting, attacking, striking, sexually assaulting, stalking, battering, or disturbing the peace of any parent, . . . upon application in the manner provided by Section 527 of the Code of Civil Procedure.”
Code of Civil Procedure section 527 provides in pertinent part: “(a) A preliminary injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefor. No preliminary injunction shall be granted without notice to the opposing party.”
Section 213.5, subdivision (d) provides in pertinent part: “The juvenile court may issue, upon notice and a hearing, any of the orders set forth in subdivision[] (a)[.] Any restraining order granted pursuant to this subdivision shall remain in effect, in the discretion of the court, no more than three years, unless otherwise terminated by the court, extended by mutual consent of all parties to the restraining order, or extended by further order of the court on the motion of any party to the restraining order.”
Rule 5.630 of the California Rules of Court provides that, after a section 300 petition has been filed, the dependency court may issue restraining orders as provided in section 213.5, to protect a child who is a dependent of the court and any parent of the child. (Rule 5.630(a), (c), (d) [2007] [formerly, rule 1429.5(a), (c), (d)].) At the hearing on the application for a restraining order, “proof 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.” (Rule 5.630(h)(2).)
Hereinafter, all references to rules will refer to the California Rules of Court.
Violent behavior or threat of violent behavior is not a prerequisite to imposing a restraining order under section 213.5. (In re Cassandra B. (2004) 125 Cal.App.4th 199, 210-212.) “‘[M]olest’ [means] ‘to interfere with or meddle with unwarrantably so as to injure or disturb.’ Molest is, in general, a synonym for annoy. The term ‘molestation’ always conveys the idea of some injustice or injury. Molest is also defined as meaning to trouble, disturb, annoy or vex. [Citation.] To molest means to interfere with so as to injure or disturb; molestation is a willful injury inflicted upon another by interference with the user of rights as to person or property. [Citation.] Annoyance or molestation signifies something that works hurt, inconvenience or damage. [Citation.]’ [Citations.]” (Id. at p. 212.)
The record in this case supports a finding that the restraining order, which both father and Matthew asked the dependency court to issue, was necessary to protect father and Matthew from molestation by mother. Father’s allegations in the application for the order were evidence that mother interfered with father’s and Matthew’s peace when she repeatedly made harassing telephone calls to father at his home late at night. The contents of the dependency court file revealed that mother interfered with father’s right to custody of Matthew and Matthew’s right to a home and family relationship with father by absenting herself and Matthew from the dependency court and dependency court proceedings which granted father custody. Mother endangered Matthew’s health and safety by exposing him to her serious drug problem, a nightmare of unrelenting, brutal domestic violence, and transiency. She absconded with Matthew rather than allow the Department to implement a plan for his safety. It was reasonable to infer from this history a risk that, unless restrained, mother would continue harassing father and interfere with Matthew’s placement with father, causing Matthew injury.
Tailoring the restraining order to these facts, and to the circumstance that reunification services were ordered, the dependency court fashioned an order restricting mother’s contact with and access to Matthew and father, while permitting visitation with Matthew. Mother’s contention the order interferes with reunification is mistaken. As any party may file a petition under section 388 to liberalize visitation if circumstances change, the restraining order presents no impediment to reunification. (See § 388, subds. (a), (c).)
Accordingly, it was well within the bounds of reason for the dependency court to conclude that the restraining order was required to protect father and Matthew from being molested by mother, and the order was not an abuse of discretion.
CONCLUSION
The order is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.