Opinion
B297939
05-06-2020
In re DIANA M. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. MARIO M., Defendant and Appellant.
Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 19CCJP01741) APPEAL from an order of the Superior Court of Los Angeles County, Victor G. Viramontes, Judge. Reversed. Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Respondent.
INTRODUCTION
Mario N. (Father) appeals from a juvenile restraining order issued in favor of E.A. (Mother). The restraining order was issued after 15-year-old Diana M. and nine-year-old Mario, Jr., were detained from Father and Mother and placed in foster care. Father contends substantial evidence does not support issuance of the restraining order, and the trial court abused its discretion in issuing the order because the court applied an incorrect standard. We agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. Prior Dependency Cases
In 2013 Diana and Mario were declared dependents of the court based on sustained allegations Mother had a history of substance abuse and was using amphetamine and methamphetamine. Further, Mother was under the influence of illicit drugs while caring for the children. The case was terminated in 2014 with an exit order granting sole physical custody to Father, joint legal custody, and visitation for Mother. The allegations in a 2017 referral of physical and emotional abuse by Father of Diana and Mario were deemed inconclusive, but allegations of Father's inability to care for the children were deemed substantiated, leading to detention of the children. After Father was provided services, the juvenile court terminated jurisdiction and awarded Father sole legal and physical custody of the children. B. 2019 Referral and Petition
On February 2, 2019 the Los Angeles County Department of Children and Family Services (Department) received a referral after law enforcement responded to a call from Father stating he could not control Diana and intended to lock her out of the house. Father did not want to give up custody of Mario. Diana reported she and Father had been arguing because she had not attended school for a few days. Father screamed at her and called her "a lazy dog." Diana denied Father ever hit her. However, the prior month she told the social worker Father hit Mario on the back with a closed fist. Mario denied Father punched him in the back, but he stated Father hit him on the leg with an open hand and "pulled his jacket" because he was not listening. Mario stated he was not bruised and it was the first time Father had hit him.
On March 18, 2019 the Department filed a Welfare and Institutions Code section 300 petition on behalf of Diana and Mario under section 300, subdivisions (a), (b)(1), and (j). The petition alleged Father physically abused Mario by striking his back with his fist, grabbing Mario by his shirt, and striking his leg, causing pain. The physical abuse endangered Mario's physical health, safety, and well-being and placed Mario and Diana at risk of serious physical harm, damage, and physical abuse. The petition also alleged Father was unable to control Diana's defiant behaviors and requested she be removed from his care. Further, Father and Mother failed to protect the children, and Father's physical abuse of Mario endangered Diana. C. Detention Hearing and Request for Temporary Restraining Order
All further undesignated statutory references are to the Welfare and Institutions Code.
On our own motion we take judicial notice of the juvenile court's minute orders dated August 15, 2019 and October 2, 2019. (Evid. Code, § 452, subd. (d).) The allegations under section 300, subdivision (b)(1), as to Father's inability to care for Diana and physical abuse of Mario were sustained, and the remaining counts were dismissed. Diana and Mario were declared dependents of the court.
At the detention hearing on March 19, 2020, the juvenile court detained Diana and Mario from Father and Mother and placed them in foster care. Mother's attorney requested a temporary restraining order be issued against Father, protecting Mother, Diana, and Mario. Mother filed a declaration in support of her request that checked the box stating Father had "assaulted or attempted to assault one or more of the persons to be protected." Mother's attorney argued, "She feels threatened. In fact, she indicates via text Father has, in fact, threatened to kill her, and because of that, we are seeking a temporary restraining order." Mother's attorney did not provide evidence of the threatening text message, instead stating Mother had provided texts to her attorney stating this had happened. Father's attorney responded the Department's detention report did not reflect any threats by Father against Mother, instead focusing on Father's inability to care for the children.
Mother testified at the hearing Father had not contacted her since the prior dependency case closed in August 2018. Instead, Mother tried to reach Father at his home telephone number to ask to visit the children, but Father had blocked her call. When asked why she needed a restraining order, Mother testified, "Because he has threatened me. He insults me. He disrespects me a lot in front of my children." Mother testified the most recent threat was on March 6, 2019, when Father "said he was going to open a case against me and he wasn't going to stop until I went to jail." She added Father had threatened her "[s]everal" times, "[e]ven with death." When asked whether she was fearful of Father, Mother responded, "Yes, because he has hit me before." Mother described the incident when Father last hit her as occurring when Diana was four or five years old and "he broke my eyebrow here with the phone that he threw at me."
Father noted the incident described by Mother would have occurred over 10 years earlier (Diana was 15 years old at the time of the hearing), there were no sustained domestic violence allegations as to the 2013 petition, and Mother was not ordered to participate in domestic violence counseling for victims.
The juvenile court granted Mother's request for a temporary restraining order, noting ". . . Mother indicated that she had death threats from the father, among other pieces of evidence." The court denied Mother's request to include the children as protected persons. D. Juvenile Court's Issuance of Permanent Restraining Order
At the May 1, 2019 hearing on the permanent restraining order, Mother pointed to her testimony at the detention hearing that she was fearful of Father, he had previously abused her, and he continued to harass her. Mother also pointed to her statement to the social worker reflected in the jurisdiction and disposition report that Father was "mean to her." Father asserted Mother failed to produce any evidence of Father's text messages or harassing conduct. He also noted the social worker who interviewed Mother stated in the jurisdiction and disposition report that "Mother appeared untruthful as evidenced by her providing misleading and contradictory information."
The juvenile court granted a three-year restraining order over Father's objection, stating, "The court has reviewed the testimony and the court finds that the mother has stated an appropriate basis for a permanent restraining order . . . ." The order prohibits Father from contacting Mother and requires Father to stay 100 yards from Mother, her home, vehicle, or workplace.
Father timely appealed. On December 2, 2019 the Department filed a letter brief stating it is not a proper respondent because it did not take a position on the restraining order in the juvenile court and had no position on appeal. The Department advised the attorney who represented Mother in the juvenile court that the Department did not intend to take a position on appeal. Mother has not requested the appointment of counsel nor filed a brief on appeal.
DISCUSSION
A. Juvenile Restraining Orders
Section 213.5, subdivision (a), authorizes a 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" the child, any parent, or the child's current or former social worker. Section 213.5, subdivision (d)(1), provides that after notice and hearing, the court may issue a permanent restraining order for up to three years.
Section 213.5 has been analogized to Family Code section 6340, which provides for issuance of a restraining order under the Domestic Violence Prevention Act "'if "failure to make [the order] may jeopardize the safety of the petitioner . . . ."'" (In re C.Q. (2013) 219 Cal.App.4th 355, 363-364, quoting In re B.S. (2009) 172 Cal.App.4th 183, 194; accord, Priscila N. v. Leonardo G. (2017) 17 Cal.App.5th 1208, 1214 ["In 2012, . . . section 213.5 was amended so that the juvenile court could issue [domestic violence restraining orders] under the same standards provided for in the [Domestic Violence Prevention Act]."]; see Fam. Code, § 6340, subd. (a)(1) [In determining whether to issue a restraining order, "the court shall consider whether failure to make [an order] may jeopardize the safety of the petitioner and the children for whom the custody or visitation orders are sought."].) "Issuance of a restraining order under section 213.5 does not require 'evidence that the restrained person has previously molested, attacked, struck, sexually assaulted, stalked, or battered the child.' [Citation.] Nor does it require evidence of a reasonable apprehension of future abuse." (In re C.Q., at p. 363; accord, In re N.L. (2015) 236 Cal.App.4th 1460, 1466.)
"We review a trial court's issuance of a restraining order for an abuse of its discretion, and the evidentiary foundation for such an order for substantial evidence." (In re E.F. (2020) 45 Cal.App.5th 216, 222; accord, In re Carlos H. (2016) 5 Cal.App.5th 861, 866.) "Under substantial evidence review, we 'interpret the facts in the light most favorable to the [order], indulge . . . all reasonable inferences in support of the trial court's order,' and do not reweigh the evidence." (In re E.F., at p. 222; accord, In re C.Q., supra, 219 Cal.App.4th at p. 364.) B. Substantial Evidence Does Not Support Issuance of the Permanent Restraining Order
Father contends substantial evidence does not support issuance of the restraining order because there was insufficient evidence the order was necessary to protect Mother's safety. We agree. Mother testified Father had threatened her, but the principal threat she identified was Father's threat on March 6, 2019 to "open a case" against her that would cause her to go to jail. Mother testified Father had on one occasion threatened her with death, but she failed to state when the threat occurred in the prior 10 years. Indeed, when asked why she was fearful of Father, Mother pointed to Father previously throwing a telephone at her, injuring her eyebrow, when Diana was five years old—10 years before the hearing. Mother testified Father had not contacted her since 2018, and it was Mother who was trying unsuccessfully to reach Father. Mother's stated concern that Father insulted her and disrespected her in front of the children does not show her safety was at risk.
Father also contends the juvenile court applied an incorrect standard in issuing the order. We do not reach this issue because we conclude substantial evidence does not support a finding Mother's safety might be in jeopardy. (In re C.Q., supra, 219 Cal.App.4th at pp. 363-364.)
Father also disputes that he caused the injury to Mother's eyebrow, pointing to evidence Mother's former boyfriend caused an injury to Mother's eyebrow around the same time.
Absent a showing by Mother that failure to issue the restraining order might place her safety at risk, substantial evidence does not support the order. (In re C.Q., supra, 219 Cal.App.4th at pp. 363-364; In re B.S., supra, 172 Cal.App.4th at p. 194.) As the Court of Appeal explained in In re C.Q., in reversing the portion of a juvenile restraining order naming the children as protected persons, "There is no evidence indicating the children's safety might be in jeopardy absent their inclusion in the restraining order. [Citation.] . . . Father has monitored visitation with the children, and Mother is not permitted to monitor those visits. . . . There have been no reports that Father has engaged in any violent or otherwise inappropriate conduct since" the incident, in which Father struck Mother in front of one of the children. (In re C.Q., at p. 364; see In re N.L., supra, 236 Cal.App.4th at p. 1468 [mother's threat to remove child from school and continued contact with school did not support inclusion of child as a protected person where "there is no evidence in the record that mother had engaged in any violent or dangerous conduct toward, or made any threats to, [the child]"]; cf. In re B.S., at p. 194 [affirming issuance of restraining order protecting child where father repeatedly committed domestic violence against mother, throwing her on top of seven-month-old child].)
DISPOSITION
The order is reversed.
FEUER, J. We concur:
PERLUSS, P. J.
Judge of the Superior Court of Los Angeles County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.