Opinion
B299466
05-29-2020
In re P.B., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff, v. A.B., Defendant and Appellant; J.B., Defendant and Respondent.
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant. Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DK12623A) APPEAL from an order of the Superior Court of Los Angeles County, Philip Soto, Judge. Affirmed in part; reversed in part. Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant. Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Respondent.
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Two questions are presented in father A.B.'s dependency appeal: 1) whether sufficient evidence supports a three-year restraining order issued against father before the juvenile court terminated jurisdiction over dependent child; and 2) whether the juvenile court erred when it included maternal grandfather as a "protected person" under the restraining order. We conclude substantial evidence supports the restraining order against father, and maternal grandfather should not have been included as a "protected person" under the restraining order.
FACTS AND PROCEDURAL BACKGROUND
On July 23, 2015, the Los Angeles County Department of Children and Family Services (DCFS) received a report of caretaker absence and general neglect as to minor P.B. A search of mother J.B.'s home revealed heroin and methamphetamine accessible to P.B. Mother was arrested; father was already in custody on a prior criminal conviction. When interviewed, both mother and father separately admitted their current illegal drug use.
On July 28, 2015, DCFS filed a petition against mother and father, alleging they both abused methamphetamine, which was found in their home, along with knives and drug paraphernalia, within access of their 16-month-old son. The petition alleged both parents suffered from mental health issues and had lengthy histories of substance abuse. Mother suffered from post-partum depression and father had been diagnosed with bipolar disorder. Neither parent was in treatment nor taking medication for their diagnoses. As a result of their substance abuse and mental illness issues, both parents were alleged to be unable or unwilling to care for and supervise their child, which endangered his physical health and safety in violation of Welfare and Institutions Code section 300, subdivision (b).
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
Only mother appeared at the detention hearing on July 28, 2015. The juvenile court detained P.B. and ordered monitored visitation for both parents. On August 6, 2015, father appeared. P.B. was placed with his paternal grandparents.
At the combined jurisdictional/dispositional hearing on September 30, 2015, both parents appeared. The juvenile court sustained the petition, finding clear and convincing evidence that P.B.'s physical health and safety would be in substantial danger if he were returned to parental custody. The court found no reasonable means to protect P.B. without removal and ordered P.B. suitably placed. The court ordered reunification services for both parents, consisting of in-patient drug treatment, drug testing, a parenting course, individual counseling, and psychological and psychiatric evaluations for both parents.
At the six-month review on April 5, 2016, father, now out of custody, had done nothing to further reunification, and "easily" admitted to DCFS that he continued to use methamphetamine. The juvenile court terminated reunification services as to father. Mother had made minimal progress and the court ordered DCFS to continue providing services to her.
At the 12-month review, parents were no longer together. Mother had moved into the home of the maternal grandfather. Father enrolled in an in-patient drug program. Both parents continued to visit P.B. The court continued mother's reunification services.
By May 2017, DCFS reported mother was not complying with her individual therapy and had not significantly resolved the issues that had brought P.B. to the attention of the juvenile court. On May 10, 2017, the juvenile court terminated mother's reunification services and set a selection and implementation hearing pursuant to section 366.26. Mother was granted unmonitored visits with P.B.
For the next 18 months, until December 2018, mother and father struggled with their substance abuse. Both parents filed section 388 modification petitions. Father, citing his full-time employment, approved housing, year-long drug treatment, counseling, sobriety, and overnight visitation with P.B., asked for unmonitored visitation with his son. His request was denied. Mother, citing her completed case plan requirements, requested additional reunification services and overnight visitation with P.B. The juvenile court denied additional services, but granted overnight visits.
Separately, each parent then filed second section 388 modification petitions. Mother requested that P.B. be placed with her. On May 23, 2018, one year after terminating mother's services, the juvenile court granted her modification petition and ordered additional reunification services. The section 366.26 hearing was vacated. Father requested reunification services and custody of P.B. His petition was denied.
Mother ultimately turned the corner and successfully complied with the requirements of her case plan. Father continued to struggle.
On December 12, 2018, mother requested and obtained a temporary domestic violence restraining order against father in the family court. Six days later, she applied for and obtained a temporary restraining order against him in the juvenile court. The factual bases for the restraining orders were multiple text messages father had sent to mother, which included negative and demeaning comments insulting mother. Father sent the messages and placed similar telephone calls when P.B. was visiting mother. The juvenile court ordered father to have no contact with mother and ordered him to stay 100 yards away from her and the maternal grandfather.
On December 18, 2018, after reviewing very positive DCFS reports about mother's progress, the juvenile court placed P.B. with mother and ordered enhancement services for father.
The next day, father was arrested for possession of illegal drugs and drug paraphernalia. Paternal grandmother told DCFS father had been exhibiting erratic behavior during the past month. She believed it was prompted by father's drug abuse. The hearing on mother's request for a three-year permanent restraining order was continued several times.
Meanwhile, father was released from incarceration in January 2019 and began residing with paternal grandparents. He was rearrested in April 2019 on a felony drug charge, and re-released in May 2019 to begin an in-patient treatment program for methamphetamine addiction. Father did not report for treatment; instead, in violation of the temporary restraining order, he sent more demeaning text messages to mother and, at all hours of the day and night, placed insulting telephone calls to her. On May 28, 2019, mother informed DCFS that father had been calling her cell phone number nonstop. On May 29, 2019, paternal grandmother advised DCFS father had threatened her and her husband. Paternal grandfather had to resort to threatening father with a taser gun to get him to leave their residence. Paternal grandparents chalked up father's behavior to methamphetamine addiction. In June 2019, Mother amended her restraining order application to add new facts. In July 2019, father was arrested again, this time for possession of a stolen vehicle.
On July 11, 2019, the juvenile trial court held a combined section 364 and permanent restraining order hearing. With respect to her request for a restraining order, mother presented no live testimony. Through counsel, father offered his stipulated testimony that all "correspondence with the mother have been in relation to their shared child, questions about their son and custody issues such as that." Father's counsel also advised the court that paternal grandmother would testify mother was willing to ride to court that day in a car with father, seemingly in contradiction of her declaration that she was afraid of father.
Without stating specific reasons, the court issued a three-year restraining order against father, prohibiting him from contacting mother or maternal grandfather, with whom mother was living. Father's visitation with P.B. was to be arranged through paternal grandmother. The court then found the conditions justifying assumption of jurisdiction over P.B. no longer existed, awarded mother sole legal and physical custody of P.B., ordered monitored visitation for father, and terminated jurisdiction over P.B.
DISCUSSION
A. The Juvenile Court Properly Issued A Restraining Order Supported by Substantial Evidence To Protect Mother Against Father.
In the juvenile court, father did not deny the truth of the allegations in mother's request for a restraining order, except to offer that his "correspondence" with mother was only in connection with the custody and care of their son. He contends insufficient evidence supports mother's restraining order against him. He argues the cell phone messages themselves were not in evidence so the juvenile court did not know what father had actually said to mother. In addition, father discounts as speculation parental grandparents' belief that he was using illegal drugs. He argues the episode between him and paternal grandparents, which prompted paternal grandfather to threaten him with a taser gun, is irrelevant to whether a restraining order should be issued to protect mother and maternal grandfather. Finally, he argues his insults and negative comments to mother did not rise to the level of threatening behavior warranting issuance of a restraining order. We disagree.
Rule 5.630 of the California Rules of Court and section 213.5 govern issuance of restraining orders in juvenile proceedings. Rule 5.630, subdivision (a) authorizes the juvenile court to issue restraining orders as provided in section 213.5 after a dependency petition has been filed under section 300. Rule 5.630, subdivision (f) provides at the hearing for a restraining order, "[p]roof 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." Further, the court may consider hearsay evidence in deciding whether to issue a restraining order. (In re L.W. (2020) 44 Cal.App.5th 44, 48, fn. 3.)
Section 213.5, subdivision (a) empowers the juvenile court to enjoin the following behaviors: "molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying the personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the child . . . ." Section 213.5, subdivision (a) also authorizes the juvenile court to issue such orders to protect "any parent, legal guardian or current caretaker of the child."
A restraining order under section 213.5 is reviewed under the abuse of discretion standard to determine whether the court properly issued the order. The juvenile court's factual findings are upheld if they are supported by substantial evidence. (In re L.W., supra, 44 Cal.App.5th at p. 51; In re Carlos H. (2016) 5 Cal.App.5th 861, 866). To show abuse of discretion, 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 re L.W., at p. 51.) We will not lightly substitute our decision for that rendered by the juvenile court. Rather, 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. (Ibid.)
Issuance of a restraining order by the juvenile court does not require evidence of previous stalking, attacks, or infliction of physical harm; nor does it require evidence of a reasonable apprehension of future physical abuse. There need only be evidence that the restrained person " 'disturbed the peace' " of the protected person. (In re Bruno M. (2018) 28 Cal.App.5th 990, 997.) "Disturbing the peace" means " 'conduct that destroys the mental or emotional calm of the other party.' [Citation.]" (Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 401; In re E.F. (2020) 45 Cal.App.5th 216, 222-223.)
Here, the record is replete with instances of father disturbing mother's peace. Mother began to recognize a problem in her relationship with father in February 2016 when she admitted to the social worker that although there was no physical violence between them, she and father "knew how to bring down the other person" emotionally. As early as May 25, 2016, mother reported she had changed her telephone number so father could no longer contact her. In a December 2018 status review report, DCFS advised the court that it had learned mother's cell phone carrier had detected negative, threatening, and harassing messages on her phone and had blocked father from sending messages to or calling mother. Notwithstanding this action by the telephone carrier, father continued to use different telephone numbers to contact mother. As of December 17, 2018, father had contacted mother using 36 different telephone numbers. He had also posted the court date and the social worker's name on social media.
DCFS reported father used the child as a means to obstruct mother's court-ordered visitation. On November 30, 2018, he purposely took the child on a bike ride knowing mother was on her way to pick him up for a visit. Mother had told father she needed to leave immediately with P.B. because the ride back to her residence was very long. However, father made her wait until he finished his bike ride with his son. A similar event happened on December 7, 2018. Father texted mother with threats that he would not return the child. When mother actually had P.B. at her residence for visitation, father would call at all hours of the day and night asking what time she "arrived home." These harassing text messages and telephone calls occurred even on days P.B. was not with mother.
Not only were these events described for the court in DCFS status reports, they were included in mother's sworn declarations filed in support of her application and amended application for the restraining order. Indeed, on December 10, 2018, the week before the juvenile court issued its temporary restraining order against father, he sent this message to mother: "Scantless ass, good for nothing, got to buy our sons love like John has done yours, selfish, self-centered piece of scum." (Sic) The court could reasonably infer, as do we, that his other, multiple unwelcome communications with mother were of a similar bent and not, as he argued, made only in connection with legitimate and necessary care and custody issues. (In re B.S. (2009) 172 Cal.App.4th 183, 194 [we are not authorized to second-guess the juvenile court on reasonable inferences it draws].) Such unrelenting telephone messaging and calls at all hours of the day and night certainly fit the definition of harassment and "disturbing the peace." (Sabato v. Brooks (2015) 242 Cal.App.4th 715, 721 [multiple unwanted calls after petitioner blocked respondent's phone number constituted harassment].)
There is more. Father violated the temporary restraining order issued on December 18, 2018, by contacting mother after his release from custody. Father's behavior towards his own parents was erratic, threatening, and aggressive. On May 29, 2019, paternal grandmother relayed that father's anger had escalated to such an extent that paternal grandfather had to threaten father with a taser gun to get him to leave their property. The incident with paternal grandparents was, to put it plainly, evidence of father becoming more and more unhinged. Whether or not father's behavior was driven by his drug addiction is beside the point. We find the totality of the evidence sufficient to support the juvenile court's implied finding that appellant's conduct harassed mother and disturbed her peace. We find no miscarriage of justice and therefore no abuse of discretion by the juvenile court. B. Maternal Grandfather Is Not a "Protected Person" Under Section 213.5.
The restraining order issued by the juvenile court also protects maternal grandfather. Father contends maternal grandfather is not within any of the "protected person" categories set out in section 213.5. Even though father did not raise this issue in the juvenile court, we find it is a pure question of law for which there can be no waiver. (In re Janee J. (1999) 74 Cal.App.4th 198, 208-209.)
Father is correct. There is no evidence in the record that maternal grandfather, with whom mother lives, is P.B.'s caretaker, legal guardian, or parent. Therefore, maternal grandfather does not fall within any of the "protected person" categories of the statute. Moreover, there is no evidence in the record that material grandfather was in any way impacted by or a target of any of father's harassing and annoying conduct. (In re N.L. (2015) 236 Cal.App.4th 1460, 1468-1469 [restraining order must be vacated where there is no evidence that protected daughter was impacted by mother's enjoined conduct].) The restraining order is overbroad as to maternal grandfather and must be set aside only as to him.
DISPOSITION
The restraining order protecting mother is affirmed. The juvenile court is ordered to modify the restraining order to exclude maternal grandfather as a protected person.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J. We concur:
GRIMES, Acting P. J.
WILEY, J.