Opinion
B193677
4-24-2007
In re ROSALINDA M., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JOSE R., Defendant and Appellant.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Fred Klink, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
INTRODUCTION
Father appeals from the entry of a permanent restraining order requiring him to stay at least 100 yards away from the social worker and the dependent minors maternal grandmother, their residences, places of work, and vehicles, and to refrain from contacting them. He contends that the order was not supported by substantial evidence. We reject his contention and affirm the order.
BACKGROUND
The adjudication of the dependency of minors Rosalinda, Alejandra and Priscilla was entered March 21, 2005, pursuant to Welfare and Institutions Code section 300. Their brother, Jose Jr. (Jose), was born in September 2005, detained at that time and placed in the custody of his maternal grandparents. The Department of Children and Family Services (Department) then filed a petition to bring Jose within the jurisdiction of the juvenile court, alleging that he had been born showing symptoms of drug withdrawal and had tested positive for amphetamine. It was further alleged that Joses three sisters had been made wards of the juvenile court due to domestic violence between mother and father, and those proceedings were ongoing. The petition also alleged that mother and father had failed to comply with the juvenile courts orders, and that father had failed to comply with a restraining order.
All further statutory references are to the Welfare and Institutions Code, unless otherwise noted.
Father is the biological father of Alejandra, Priscilla and Jose. Although father is not Rosalindas biological father, he is the only father she has ever known.
On September 19, 2005, three days after filing the petition, the Department applied for a restraining order against father on behalf of social worker Shelley Rasmussen and Joses maternal grandmother (grandmother). The application stated that on September 13, 2005, father had screamed at Rasmussen by telephone, saying that "`he was going to take care of [her] because [she] was taking his life away" and that she would "`pay for this." In addition, grandmother reported that the day before, father had screamed at her in a telephone conversation: "`[Y]ou took away my girls, now youre taking my son. As much as I hurt now, youre gone [sic] to hurt worse."
The juvenile court issued a temporary restraining order, scheduling a hearing for the following month, but the hearing was continued several times; it finally took place June 28, 2006 and July 13, 2006. The juvenile court heard the testimony of Rasmussen and grandmother, and issued a permanent restraining order July 13, 2006, ordering father to stay at least 100 yards away from them, their residences, places of work, and vehicles. He was further ordered to refrain from contacting them by telephone, mail or e-mail. An exception was made for peaceful court-ordered visitation at Department offices. Father timely filed a notice of appeal from the July 13 order. Fathers sole contention on appeal is that the restraining order is not supported by substantial evidence.
The notice of appeal included the orders of the same date adjudicating Jose a dependent of the juvenile court, terminating reunification services and setting a permanent plan hearing pursuant to section 366.26 as to Joses sisters. Respondent moved for dismissal of the appeal from those orders, but as appellant abandoned those appeals, and the restraining order is the only order before us for review, we denied the motion.
FACTS
We summarize the evidence in the light most favorable to respondent. Rasmussen testified that she was the social worker assigned to the ongoing case regarding fathers other children, and had spoken to him many times prior to September 13, 2005, when she was informed that mother was in labor. Rasmussen went to the hospital to investigate and found Jose in the nursery. Rasmussen spoke to father by telephone from the hospital about her decision to detain Jose. He screamed at her, repeating her name and saying he would "take care" of her because she took his life away from him, and argued against her detaining the baby. Rasmussen testified that father also screamed that he would hurt her, that she "would hurt as much as he did or even more," and that he would make her pay for her actions. She felt threatened and interpreted the words, "Im going to make you pay," as a threat on her life. She continued to provide services to the family, but was later removed because of the threat and another social worker was assigned.
See In re Cassandra B. (2004) 125 Cal.App.4th 199, 210.
Grandmother testified that she was mothers mother, and that father was her daughters boyfriend. During their relationship, whenever mother and father argued, mother would come home to grandmother, and father would call and curse at her, telling her not to become involved. He called grandmother on September 12, 2005, while Rasmussen was there with paperwork pertaining to the dependency proceedings. Father was agitated, indicated he knew Jose was going to be detained and screamed so loudly that his voice was audible when she held the receiver six inches from her ear. He told her that as much as he was hurting for losing his kids, she was going to hurt for losing his son. Remembering fathers behavior in 2001, when he broke the window of her car because mother tried to leave him, grandmother was scared, and feared for her safety.
Also before the court were the Departments reports regarding Jose and his sisters, previously admitted by the court, and all the courts prior orders. According to those records, the social worker reported that in 2004, mother had applied for a restraining order against father in family court, and she provided a copy of mothers application and declaration. In it, mother stated that father had been convicted in the past of assault with a deadly weapon and had twice been arrested for domestic violence, most recently in May 2004. She stated that on two occasions in October 2004, father had abused her — by bruising and scratching her on one occasion, by dragging her by the hair to another room and "head-butting" her, and on another occasion, threatening to use a gun on her. The family court issued a three-year restraining order November 15, 2004. Father was ordered to stay away from mother and maternal grandparents and not to have any telephone contact with them.
The Departments investigation revealed a conviction in 1999, after father was charged with assault with a deadly weapon. In November 2004, just before the older children were detained, father admitted to the social worker that he was on probation for an assault conviction.
When mother moved back in with father two days later, the girls were detained. The social worker reported seeing bruises on mothers neck, and in an interview with the oldest girl, Rosalinda, the child told the social worker that during father and mothers frequent arguments, "Daddy spanks mommy real hard," that "Daddy hurts mommy," and that "daddy has a gun to kill mommy." On March 21, 2005, the juvenile court ordered father to enroll in domestic violence counseling and anger management classes, but as of October 24, 2005, father had failed to do so, despite referrals provided by the Department. Father did not testify at the hearing on the restraining order.
DISCUSSION
1. Restraining Order as to Social Worker
Father contends the restraining order was not supported by substantial evidence. As relevant here, the juvenile court may issue an order restraining a parent from threatening a social worker with physical harm, if good cause is shown. (§ 340.5.) Good cause is shown with evidence of at least one threat of physical harm to the social worker, made by the parent to be restrained, with the apparent ability to carry out the threat. (§ 340.5.) The juvenile courts issuance of a restraining order is reviewed for abuse of discretion. (In re Matthew F. (2005) 132 Cal.App.4th 883, 886.) When the juvenile courts discretion is challenged on the sufficiency of the evidence, "we view the evidence in a light most favorable to the respondent, and indulge all legitimate and reasonable inferences to uphold the juvenile courts determination. If there is substantial evidence supporting the order, the courts issuance of the restraining order may not be disturbed. [Citation.]" (In re Cassandra B., supra, 125 Cal.App.4th at pp. 210-211.) Substantial evidence is evidence which is reasonable, credible and of solid value. (In re Alvin R. (2003) 108 Cal.App.4th 962, 971.)
Father contends the evidence showed that he threatened only to bring legal action, not to harm Rasmussen physically, because, in addition to saying he would "take care" of her, she "would hurt as much as he did or even more," and "Im going to make you pay," he also threatened to sue her. While the quoted language could conceivably be construed as elaborating on the consequences of a lawsuit, it need not be so construed, especially in light of fathers demonstrated history of violent behavior.
Rasmussen inferred that her life had been threatened; the juvenile court agreed, interpreting the words to be threats of violence and expressly finding that father had threatened bodily injury. "All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the [order], if possible. Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact. [Citation.]" (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.) Here, threats of physical harm can reasonably be deduced from the evidence. The court expressly considered fathers history of violence against mother as evidence of his meaning. In addition, there was evidence that father had been convicted of felony assault a few years earlier and that he owned a gun. As the judge said, "[Father] is not just a gentleman [who] comes in with no other history . . . ."
Father suggests that threats by telephone do not support a restraining order, because the threat must be shown to have been made "with the apparent ability to carry out the threat." (§ 340.5, subd. (b).) Implied in fathers argument is a contention that "apparent ability" means the ability to carry out the threat immediately. We disagree. Section 340.5 does not require evidence of an ability to carry out the threat immediately — merely an ability which is apparent. Father made the threats from the parking lot of the hospital where Rasmussen was investigating Joses birth. He was still there when Rasmussen emerged from the hospital, and the only hindrance to his ability to carry out his threats was the security guard who accompanied Rasmussen. "Ability" and "opportunity" are not synonymous. Further, the threats were repeated in telephone messages left at Rasmussens office. As father had attended many monitored visits with his other children at Rasmussens office prior to Joses birth, it may be assumed that he knew where it was and had the ability to go there. The juvenile court could reasonably infer that father had the ability to carry out his threats.
Even a criminal threat — which must be "so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat" — does not require an ability to carry out the threat immediately. (People v. Lopez (1999) 74 Cal.App.4th 675, 679-680; Pen. Code, § 422.)
The juvenile court expressly rejected Rasmussens testimony that she believed a costumed man who came to her door on Halloween was father. We therefore do not reach fathers contention that Rasmussens belief was insufficient to support a finding that fathers appearance at her door was a threat.
Father contends that even if the threats supported a temporary restraining order in September 2005, there was no longer any justification for a permanent injunction in July 2006. First, he argues the court should not have issued the July 2006 order because Rasmussen was no longer the social worker on the case. We disagree. Because restraining orders for the protection of social workers are not limited to social workers assigned to the parents case, it is within the juvenile courts discretion to impose a restraining order after the social worker is reassigned. (In re Matthew F., supra, 132 Cal.App.4th at p. 886.)
Second, father contends that the court abused its discretion, because nine months had passed without incident since the temporary restraining order had issued, and the evidence did not show that Rasmussen had cause for reasonable apprehension of future abuse by father. The juvenile court rejected the same argument, observing that father had been incarcerated after the temporary restraining order was issued, and remained incarcerated until shortly before hearing. Father did not object and does not assign the courts finding as error.
A discretionary determination is an abuse of discretion only when it is arbitrary, capricious, patently absurd or exceeds the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) The court had reason to doubt fathers ability to restrain himself once free from custody, even with an order in place — his threats to grandmother were made when he was subject to the family court restraining order, and he failed to enroll in domestic violence counseling or anger management classes when ordered to do so by the juvenile court. Further, although it may be inferred that periods of time elapsed between fathers acts of violence, there was substantial evidence of recurrence — his violence affected grandmother in 2001, when anger led him to break the window of grandmothers car, and again in 2005, when he threatened to hurt her, and he regularly became violent toward mother during their frequent arguments. Given fathers history, we find no abuse of discretion.
2. Restraining Order as to Maternal Grandmother/Caretaker
Father contends that the evidence was insufficient to support the issuance of a restraining order in favor of grandmother. Section 213.5, subdivision (a), authorizes the juvenile court to exclude any person from the dwelling of the childs caretaker, and to enjoin "any person from contacting, threatening, molesting, attacking, striking, sexually assaulting, stalking, battering, or disturbing the peace of any parent, legal guardian, or current caretaker of the child . . . ." As he did in his argument regarding the social worker, father recites few facts, and those recited are expressed in a light most favorable to his position, drawing only those inferences that would support reversal. However, we are required to view the evidence in a light most favorable to the respondent, indulging reasonable inferences to uphold the juvenile courts determination, and we have summarized them in that manner. (In re Cassandra B., supra, 125 Cal.App.4th at pp. 210-211.) Fathers argument again omits much of his violent history, which the statute expressly makes relevant to the courts determination; the juvenile court was entitled to consider fathers violent felony conviction, history of domestic violence, evidence of his possession of a firearm and his disregard of the family court restraining order. (See § 213.5, subd. (k)(2).) As the same evidence supporting the order protecting the social worker also supports the order protecting grandmother, we need not summarize it again.
Father contends that the juvenile court erred in excluding him from grandmothers home, because the Department failed to show that he "has assaulted or threatens to assault the other party . . . ," as required by section 213.5, subdivision (e)(2)(B). Respondent contends that subdivision (e) applies only to parties who would otherwise have a legal right to be in the dwelling; thus, it does not apply to father, as he did not live with grandmother, had never been invited into her current home, and had no legal right to be in that dwelling. We agree with respondents interpretation. Subdivision (e) authorizes the court to determine which party "will stay in the dwelling . . . ." (§ 213.5, subd. (e)(2)(A), italics added.) As father has never been in the dwelling and has never had a right to possession of the dwelling, no issue is presented regarding who will stay in possession, and subdivision (e) is inapplicable.
Under section 213.5, subdivision (e), exclusion from a caretakers dwelling requires the following three factual findings: (A) "the party who will stay in the dwelling has a right under color of law to possession of the premises"; (B) "the party to be excluded has assaulted or threatens to assault the other party . . ."; and (C) "physical or emotional harm would otherwise result to the other party . . . or to any minor child. . . ."
Grandparents had moved a month or two before the hearing and father did not have their new address. The court ordered grandmothers address to remain confidential.
Respondent also contends that section 213.5, subdivision (e), applies only to parties to the proceeding and that grandmother is not a party to the proceeding. Father counters that the more logical construction of "party" is any party to the injunction proceeding. Their dispute is academic, as the court granted de facto parent status to grandmother prior to issuing the permanent injunction, making her a party to all proceedings. (See In re Merrick V. (2004) 122 Cal.App.4th 235, 256; Cal. Rules of Court, rule 5.534(e).)
We also reject fathers construction under the well-established principle of statutory construction that requires avoiding a construction that would make some words, phrases or sentences mere surplusage. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387.) Section 213.5, subdivision (a) also authorizes the exclusion of a party from the caretakers dwelling, but if subdivision (e) were applied to any party, regardless of his or her legal right to be in the dwelling, subdivision (a) would be mere surplusage. Further, in construing a statute, we must give significance to every word of the statute, if possible. (Dyna-Med, supra, at p. 1387.) However, fathers construction would render subdivision (e)s phrase, "stay in the dwelling," meaningless in a case such as this, where father had never been in grandmothers dwelling.
We conclude that the juvenile courts authority to exclude father from grandmothers home was derived from subdivision (a) of section 213.5, not subdivision (e). The showing required to exclude a parent from the caretakers dwelling under subdivision (a) is no greater than the showing required for an order restraining him from "contacting, threatening, molesting, attacking, striking, sexually assaulting, stalking, battering, or disturbing [her] peace . . . ." (§ 213.5, subd. (a).) Thus, respondent was not required to show that father had assaulted or threatened to assault grandmother, and the evidence that was sufficient to support the order in favor of the social worker is equally sufficient to support the order in favor of grandmother. Screaming into the telephone, father told grandmother that "as much as hes hurting for losing his kids that [she] was going to hurt for losing his son." `(RT 138) She was scared of father and feared for her safety because father had previously broken her car window and assaulted her daughter. Fathers words were a credible threat of physical violence, given his history of violence, evidence that he possessed a firearm, his past conviction for assault, his violation of the family court restraining order and his failure to enroll in domestic violence counseling or an anger management course. (See § 213.5, subd. (k)(2).)
Father cites Mallon v. City of Long Beach (1958) 164 Cal.App.2d 178, asserting it as authority for his final contention — that an injunction based upon past behavior constitutes improper punishment, rather than a proper regulation of future behavior. Father overstates the holding in that case, which was not a broad condemnation of the use of past behavior to justify an injunction. It held: "If . . . at the time of the order or judgment, in the absence of special circumstances, . . . there is no reasonable probability that past acts complained of will recur, injunctive relief will be denied. Injunctive power is not used as punishment for past acts and is ordered . . . only if there is evidence they will probably recur. [Citations.]" (Id. at p. 190.) Thus, evidence the enjoined acts will probably recur is required "where, at the time of the hearing, conditions have so changed that no unlawful act is threatened" (Engle v. City of Oroville (1965) 238 Cal.App.2d 266, 270), or where it appears the behavior "in good faith has been discontinued . . . ." (Dawson v. East Side Union High School Dist. (1994) 28 Cal.App.4th 998, 1040.)
There is no suggestion that father, in good faith, discontinued his behavior. The only evidence he cites to show changed conditions is grandmothers testimony that as of the date of the hearing, he did not know where she lived. Far from suggesting good-faith restraint on fathers part, this evidence, along with the fact that he was jailed for a period of time prior to the hearing, shows only a lack of opportunity. On the other hand, substantial evidence supports a finding that his behavior was likely to recur: his acts of violence continued over a number of years; the telephone threats to grandmother were made when he was subject to the family court order restraining him from that very behavior; and he failed to enroll in domestic violence counseling or anger management classes when ordered to do so by the juvenile court. We conclude there was no error in issuing the permanent restraining order.
DISPOSITION
The order is affirmed.
We concur:
WILLHITE, Acting P. J.
SUZUKAWA, J.