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In re I.B.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Jan 30, 2020
B295172 (Cal. Ct. App. Jan. 30, 2020)

Opinion

B295172

01-30-2020

In re I.B., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. A.B., Defendant and Appellant; A.A., Intervener and Respondent.

Jamie A. Moran, under appointment by the Court of Appeal, for Objector and Appellant. Roni Keller, under appointment by the Court of Appeal, for Petitioner 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18LJJP00470A APPEAL from an order of the Superior Court of Los Angeles County, Karin Borzakian, Juvenile Court Referee. Affirmed. Jamie A. Moran, under appointment by the Court of Appeal, for Objector and Appellant. Roni Keller, under appointment by the Court of Appeal, for Petitioner and Respondent.

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The juvenile court declared father's eleven-year-old daughter I.B. a dependent child and removed her from father's custody after finding father's heroin abuse posed a substantial danger to I.B.'s health and safety. Father appeals the portion of a restraining order, issued under Welfare and Institutions Code section 213.5, protecting I.B.'s stepfather from threats, harassment, and other contact by father. In addition to protecting a dependent child, section 213.5 authorizes the juvenile court to issue a restraining order protecting the child's "parent, legal guardian, or current caretaker." (§ 213.5, subd. (a).) Father contends I.B.'s stepfather is not among the adults who are entitled to protection under the statute.

Statutory references are to the Welfare and Institutions Code. --------

The evidence showed that before and after I.B.'s removal from father's custody, the child was cared for in the household that mother and stepfather shared. We conclude this evidence was sufficient to support the juvenile court's implicit finding that stepfather was a "current caretaker" of I.B. under section 213.5. We affirm.

FACTS AND PROCEDURAL BACKGROUND

Consistent with our standard of review, we state the facts in the light most favorable to the juvenile court's ruling, drawing all reasonable inferences in support of the court's findings. (See In re Carlos H. (2016) 5 Cal.App.5th 861, 866 (Carlos H.).)

Mother and father are divorced and live in separate homes. Before the current dependency proceeding, mother and father had a court ordered custody arrangement under which father had physical custody of I.B. every other weekend from Friday to Sunday, and every other Tuesday and Wednesday from 3:00 p.m. to 7:00 p.m. At all other times, I.B. lived in a home with mother, mother's husband (I.B.'s stepfather), and I.B.'s half-brother (mother and stepfather's minor son).

The juvenile court declared I.B. a dependent child and removed her from father's custody after finding father's current abuse of heroin posed a substantial risk of danger to I.B. The court based its finding in part upon I.B.'s report that she feared father because he fell asleep while driving her, he was aggressive with others, including in telephone conversations with mother, and, on more than one occasion, she witnessed father smoking a strange smelling substance from a piece of foil. The evidence also showed father had a criminal record that included multiple arrests, a felony conviction for assault with a deadly weapon, and a conviction for possessing a firearm after a felony conviction.

During the dependency proceeding, mother filed a petition for a restraining order against father, seeking protection for herself and I.B.'s stepfather. Mother based the petition upon a series of text messages father sent to stepfather's phone, including the following: "Hey dude, if you had your son taken from you for no reason what would you do. (Sic.) Why does your wife still want to bug why because she still wants this. (Sic.) . . . Wow that is what you want as a wife. Hopefully you [sic] once a cheater always a cheater. I will come visit soon. Halloween is coming don't be scare[d]." A second text message, sent three days later, read: "What's up bitch ass. Where is your bitch at. (Sic.) Tell her to come fuck this dick like before. See you soon bitch[.]" The juvenile court granted mother and stepfather a temporary restraining order, pending a hearing on a permanent order.

In advance of the hearing on her restraining order petition, mother requested permission to take I.B. on an out-of-state trip to Las Vegas for a family wedding. Her request noted that I.B. would be traveling with her "immediate family," which included stepfather and I.B.'s half-brother.

Additionally, mother reported that father continued to send threatening messages to her husband; however, he had begun directing them to other family members in an apparent effort to circumvent the temporary restraining order. One message, apparently sent to stepfather's mother through social media, read: "Tell your son to reach out to me if he does not want me to ruin his life."

Father's attorney objected to stepfather "being on the restraining order," arguing he was "only the step-father" and "not a party to this case." He suggested mother was using the restraining order as a pretext to keep father from contacting I.B., who had been residing with mother and stepfather exclusively following the child's detention.

Mother testified the text messages were especially troubling because father had an "aggressive past," including convictions for assault and firearm possession. She said the temporary restraining order had allowed her and stepfather to "sleep a little better at night," and she was very scared that if the court did not issue a permanent order, she and stepfather would "have to be watching over our shoulders." When the court asked whether stepfather lived in the "same household" with mother and I.B., mother affirmed that he did.

The juvenile court issued a three-year restraining order. The court emphasized that it found mother credible, that stepfather "share[d] a household" with mother and the children, and that father's text messages referenced his anger over having I.B. taken "away" from him, which the court perceived to be father's "motive" for harassing and threatening mother and stepfather.

Father filed a timely notice of appeal from the dependency adjudication and the restraining order. However, his appellate briefs challenge only the portion of the restraining order naming stepfather as a protected person.

DISCUSSION

In reviewing the issuance of a restraining order under section 213.5, we apply the substantial evidence standard to the juvenile court's factual findings and the abuse of discretion standard to determine whether the court properly issued the order. (Carlos H., supra, 5 Cal.App.5th at p. 866.) To establish an abuse, the appellant must demonstrate the juvenile court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. In assessing the appellant's showing, we "must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings where there is substantial evidence to support them." (In re M.V. (2014) 225 Cal.App.4th 1495, 1506-1507 (M.V.); Carlos H., at p. 866.)

In addition to protecting a dependent child, section 213.5 authorizes the juvenile court to issue an "order enjoining any person from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, . . . destroying the personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of any parent, legal guardian, or current caretaker of the child, regardless of whether the child resides with that parent, legal guardian, or current caretaker." (§ 213.5, subd. (a), italics added.)

Father contends the juvenile court was not authorized to issue a restraining order protecting I.B.'s stepfather. He asserts stepfather is not I.B.'s parent or legal guardian under the dependency law, and he argues there was insufficient evidence for the juvenile court to find stepfather was a current caretaker of I.B. Thus, while father does not dispute that his conduct was threatening, he maintains stepfather was not entitled to protection under section 213.5. We conclude there was sufficient evidence to find stepfather was a "current caretaker of the child." (§ 213.5, subd. (a).)

The purpose of the dependency law is to "protect the welfare and best interests of the child." (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 597.) Consistent with this overriding purpose, section 213.5 authorizes the juvenile court to issue a restraining order protecting a dependent child's parent, legal guardian, or current caretaker from harassment and threats, because harassment and threats that disturb the peace of such caretakers are likely to hamper the caretakers' ability to adequately care for and promote the interests of the child. (See Assem. Com. on Judiciary, Analysis of Sen. Bill No. 221 (1989-1990 Reg. Sess.) as amended April 3, 1989, p. 4 ["This bill grants the court discretion to order any other restraining orders so as to protect the child, such as limitations on communication or on the types of threats that are inappropriate."]; see also § 202, subd. (b) ["Minors under the jurisdiction of the juvenile court who are in need of protective services shall receive care, treatment, and guidance consistent with their best interest."].) Moreover, given the foreseeably fraught nature of a dependency proceeding, we can justifiably presume the Legislature understood a dependent child's current caretakers (whether they be foster parents, a stepparent, or another adult in the custodial home) might become an object of disdain for an offending parent, who is distraught and upset about being separated from his or her child. (Cf. § 213.5, subd. (a) [authorizing restraining order to protect "the child's current or former social worker or court appointed special advocate"].)

In issuing a restraining order protecting I.B.'s stepfather, the juvenile court implicitly found he was a "current caretaker" of I.B. (§ 213.5, subd. (a).) Substantial evidence supports the finding. In declaring the restraining order would protect stepfather, the juvenile court expressly observed that mother and stepfather "share a household." The court reasonably inferred mother and stepfather, as the only adult members of the household, shared the daily obligations of running that household, including caring for the children in it. That inference is consistent with a commonsense understanding of the shared responsibilities parents assume in blended stepfamily households, and it accords with the recognition in both our statutory and common law that "membership of many family units extends beyond parents and children to grandparents, stepparents, aunts and uncles, all of whom may be expected to have assumed responsibilities for child rearing and the attendant emotional relationships with children that normally accompany" sharing "the same household." (Kriventsov v. San Rafael Taxicabs, Inc. (1986) 186 Cal.App.3d 1445, 1449-1450, fn. omitted [recognizing a stepparent is a foreseeable victim of emotional distress when child is negligently injured]; see Lab. Code, § 230.8, subd. (e)(1) [stepparent is entitled to protection from discharge for taking time off to attend to childcare-related activities]; Lab. Code, § 245.5, subd. (c) [paid sick leave provisions apply to time taken for care of stepchildren].)

Father's antipathy toward stepfather—evidently based in part on his perception that stepfather had taken his place as a caretaker for I.B.—lends further support to the juvenile court's determination that stepfather was entitled to protection under section 213.5. In issuing the restraining order, the court emphasized that father's threats against stepfather were motivated by his anger over having I.B. taken "away" from him, which implicated both the family law and dependency proceedings.

Father contends stepfather has "never been designated a caretaker for this child." He emphasizes I.B. was "released to the care of mother" at the detention phase and she was "placed in the care of mother, under a plan of family maintenance" at the disposition phase. The argument does not establish an abuse of discretion. As discussed, in reviewing the juvenile court's order, we must draw all reasonable inference and imply all necessary findings that are supported by the evidence to uphold the court's judgment. (M.V., supra, 225 Cal.App.4th at pp. 1506-1507.) The juvenile court's issuance of a restraining order protecting stepfather necessarily implies the court found stepfather was a current caretaker of I.B., even if the court did not expressly make such a finding. And, because substantial evidence supports that implicit finding, the juvenile court did not err in issuing the restraining order.

DISPOSITION

The restraining order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J. We concur:

LAVIN, Acting P. J.

DHANIDINA, J.


Summaries of

In re I.B.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Jan 30, 2020
B295172 (Cal. Ct. App. Jan. 30, 2020)
Case details for

In re I.B.

Case Details

Full title:In re I.B., a Person Coming Under the Juvenile Court Law. LOS ANGELES…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

Date published: Jan 30, 2020

Citations

B295172 (Cal. Ct. App. Jan. 30, 2020)