In re I.L. CA2/4 ( 2021 )

Filed 9/7/21 In re I.L. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re I.L. et al., Persons Coming B309586
Under the Juvenile Court Law.
LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No.
AND FAMILY SERVICES, 20CCJP02778
Plaintiff and Respondent,
v.
M.L.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Daniel Zeke Zeidler, Judge. Affirmed.
Lori Siegel, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Stephanie Jo Reagan, Principal
Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
M.L. (father) appeals from a restraining order entered
against him under Welfare and Institutions Code1 section 213.5.
His sole contention on appeal is that the juvenile court erred by
including his three children, J.M.L., J.M., and I.L., as protected
persons under the restraining order. Specifically, he argues the
evidence is insufficient to establish the children’s safety would be
in jeopardy unless they were included in the order. We disagree
and affirm.
BACKGROUND
Mother and father are the parents of J.M.L., J.M., and I.L.,
who were six, five, and four years old, respectively, when this
case was initiated in May 2020. The parents had been in a
relationship for approximately nine years. The children lived in
their paternal grandmother’s home with their parents and
several other paternal relatives.
On April 30, 2020, the parents got into an argument after
father noticed mother had received a text message on her Apple
Watch. Believing the message was from another man, and that
mother was cheating on him, father “became irate.” Their
argument escalated into a physical altercation when he picked up
a knife with a six-inch serrated blade from the kitchen table and
stated: “‘I’m going to kill you before I let you go with anyone
else.’” Father then twice tried to stab mother with the knife.
While she was able to dodge his first attempt, she sustained a
half-inch laceration to her left shoulder blade during the second.
1 All undesignated statutory references are to the Welfare
and Institutions Code.
2
Upon hearing the commotion, the children went to the
kitchen. They saw father attempting to stab mother with the
knife. Consequently, they hid under the kitchen table. The
children’s paternal relatives ultimately intervened and de-
escalated the situation.
A second incident of domestic violence occurred a few days
later. Mother was asleep when father returned home from work
at around 5:00 a.m. He woke her up, “began calling [her] foul
names[,]” and “confront[ed] her about her possibly having an
affair.” When mother denied having an affair, father punched her
on the right side of her face and on her arms. He also kicked her
back and stomach. J.M. was present for the incident, “heard
father calling mother mean names[,]” and saw him kick mother.
Later that day, mother went to the police station and filed
a domestic violence report. In addition to reporting the two
incidents above, she told the police that there were “4 [other]
unreported” incidents of domestic violence between the parents.
The police checked mother for injuries and observed she had a
bruise on her right forearm, as well as “an approximate half inch
superficial laceration on the back of her left arm, by her left
shoulder blade from where [she] stated [father] stabbed her.” She
also “complained of pain to her right cheek from w[h]ere [father]
had punched her.” The police noted mother had obtained an
emergency protective order against father.
On the same date she spoke to the police, mother took the
children to stay with their maternal aunt. About a week later,
she obtained a temporary restraining order (TRO) against father,
which included the children as protected persons. Father was
denied visitation with the children pending the June hearing on
the TRO.
3
After conducting an investigation, in May 2020, the
Department filed a petition on the children’s behalf under section
300, subdivisions (a) and (b)(1). The petition alleged the children
were at substantial risk of serious physical harm due to father’s
violent conduct toward mother, and mother’s failure to protect
them from his conduct by allowing him to reside with them and
have unlimited access to them.
At the June hearing, mother’s TRO was continued to July
2020, and the TRO was reissued to expire on the new hearing
date. Subsequently, in July, mother filed a request for a
restraining order in the juvenile court under section 213.5.2 At a
hearing held the same day, the juvenile court granted mother a
TRO, which was set to expire following a hearing set for July 21,
2020. Among other things, the TRO required father to stay at
least 100 yards away from the children’s school. Father was
granted monitored visitation. Later, per his request, the
restraining order hearing was continued to December 7, 2020, the
same date for which the petition’s adjudication hearing had been
set. The juvenile court reissued the TRO through that date.
At the December 7, 2020 hearing, the juvenile court began
with the petition’s adjudication. The court struck the allegations
regarding mother’s failure to protect the children from the count
pled under section 300, subdivision (a). It sustained the
2 Because mother’s initial application for a TRO was filed
before the Department initiated the underlying dependency case,
it was assigned to a division of the superior court separate from
the juvenile court, with its own case number (20STRO02460).
After the section 300 petition was filed, the juvenile court
informed mother that she could file another request for a
restraining order before it and have the matter addressed as part
of her children’s dependency case.
4
remainder of the petition as pled and declared the children
dependents of the court.
Proceeding to disposition, the juvenile court removed the
children from father and placed them with mother under
Department supervision. Father was granted monitored
visitation and ordered to participate in a 52-week certified
domestic violence batterer intervention program, parenting
classes, and individual counseling.
Subsequently, the juvenile court granted a restraining
order after hearing, which listed mother and all three children as
protected persons. Among other things, the restraining order
required father not to have any contact with the children except
during monitored visits. The restraining order was originally set
to expire on December 6, 2025. On March 11, 2021, however, the
juvenile court modified the order to expire on December 6, 2023.
Father timely appealed.
DISCUSSION
Under section 213.5, subdivision (a), the juvenile court may
issue an order “enjoining any person from molesting, attacking,
striking, stalking, threatening, sexually assaulting, battering,
harassing, telephoning, . . . destroying the personal property,
contacting, . . . or disturbing the peace of the child[.]” The statute
“also permits the court to issue orders including the child’s parent
as a person protected from the behaviors listed above and
excluding the restrained person from the child’s home.” (In re
C.Q. (2013) 219 Cal.App.4th 355, 363 (C.Q.).) “Monitored
visitation of a child is not incompatible with a restraining order.
[Citations.]” (In re N.L. (2015) 236 Cal.App.4th 1460, 1466.)
“Issuance of a restraining order under section 213.5 does
not require ‘evidence that the restrained person has previously
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molested, attacked, struck, sexually assaulted, stalked, or
battered the child.’ [Citation.] Nor does it require evidence of a
reasonable apprehension of future abuse. [Citation.]” (C.Q.,
supra, 219 Cal.App.4th at p. 363.) Rather, the juvenile court may
issue a restraining order listing the children as protected persons
where “[t]he evidence indicate[s] the children’s safety might be in
jeopardy absent their inclusion in the . . . order. [Citation.]” (Id.
at p. 364.)
“However, safety is not limited to preventing only physical
harm. [Citations.]” (Seiser and Kumli on California Juvenile
Courts Practice and Procedure § 2.47.) Children may be included
as protected persons in a section 213.5 restraining order where
there is “evidence that the restrained person ‘disturbed the peace’
of the protected child. [¶] In this context, disturbing the peace
means ‘“conduct that destroys the mental or emotional calm of
the other party.” [Citation.]’ [Citation.]” (In re Bruno M. (2018) 28
Cal.App.5th 990, 997, italics in original (Bruno M.); In re A.M.
(2019) 37 Cal.App.5th 614, 619 [restraining order prohibiting
contact between father and his daughter was appropriate where
“there was sufficient evidence that any contact between [them]
would jeopardize her emotional and psychological safety”].)
“In reviewing the issuance of a restraining order under
[section 213.5], ‘we view the evidence in a light most favorable to
the respondent, and indulge all legitimate and reasonable
inferences to uphold the juvenile court’s determination. If there is
substantial evidence supporting the order, the court’s issuance of
the restraining order may not be disturbed.’ [Citations.]” (Bruno
M., supra, 28 Cal.App.5th at pp. 996-997, fn. omitted.)3
3 While “[s]everal courts have applied the substantial
evidence standard in reviewing the issuance of a restraining
6
Father contends the juvenile court erred by including the
children as protected persons in the restraining order because
“the evidence was insufficient to demonstrate that failing to
include [them in the order] would jeopardize [their] safety[.]” In
support, he analogizes this case to C.Q., supra, 219 Cal.App.4th
355, emphasizing that he never harmed or threatened to harm
the children, that he has not had contact with mother since she
left the family home, and that the evidence did not demonstrate
he would improperly contact the children outside the context of
monitored visitation.
As discussed below, we disagree with father’s argument
because C.Q. is distinguishable from this case. Instead, we find
this case is far more similar to Bruno M., supra, 28 Cal.App.5th
990, and conclude the record contains substantial evidence to
support the children’s inclusion in the restraining order.
In C.Q., the family came to the Department’s attention
when the mother reported to the police that, during an argument,
the father struck her with a closed fist while their three minor
children were present in the home. (C.Q., supra, 219 Cal.App.4th
order under section 213.5[ ] [citations]” (In re N.L., supra, 236
Cal.App.4th at pp. 1465-1466), others have applied both the
substantial evidence and abuse of discretion standards. (See, e.g.,
In re Carlos H. (2016) 5 Cal.App.5th 861, 866, fn. omitted
[“[A]ppellate courts apply the substantial evidence standard to
determine whether sufficient facts supported the factual findings
in support of a restraining order and the abuse of discretion
standard to determine whether the court properly issued the
order. [Citations.]”].) “The practical differences between the two
standards in this context are not significant. [Citation.]” (In re
N.L., supra, 236 Cal.App.4th at p. 1466.) Here, under either
standard, we conclude the juvenile court did not err by including
the children as protected persons in the restraining order.
7
at p. 358.) The mother reported one of the children observed the
incident and intervened, and that all three children witnessed a
similar incident a year before. (Id. at pp. 358-359.) When
interviewed by the Department, however, the children denied
knowledge of any domestic violence between the parents. (Id. at
p. 359.) Subsequently, the juvenile court issued a restraining
order requiring the father to stay away from the mother, the
children (except during monitored visits), the children’s school or
childcare, and the family home where the mother resided with
the children. (Id. at p. 363.)
The Court of Appeal reversed the portion of the restraining
order naming the children as protected persons. (C.Q., supra, 219
Cal.App.4th at p. 357.) It held “[t]here w[as] no evidence
indicating the children’s safety might be in jeopardy absent their
inclusion in the restraining order. [Citation.]” (Id. at p. 364.) In
support of its holding, the Court of Appeal emphasized: (1) the
father did not challenge the portions of the restraining order
requiring him to stay away from the mother or the family home;
(2) the father was granted monitored visitation with the children,
which the mother was not to monitor; (3) “[t]he children have
stated they want visits with their father and are not afraid of
him[ ]”; and (4) the evidence did not establish father engaged in
“any violent or otherwise inappropriate conduct” following the
most recent domestic violence incident. (Ibid.)
In Bruno M., the father argued there was insufficient
evidence to support the inclusion of his two children in a section
213.5 restraining order. (Bruno M., supra, 28 Cal.App.5th at p.
997.) While he acknowledged the children may have been present
when he was violent toward the mother, he asserted he “‘was
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never aggressive with [them] and they were never in the line of
fire’ of his assaults on [the] mother[.]” (Ibid.)
The Court of Appeal rejected the father’s contentions and
held the restraining order was supported by substantial evidence.
(Bruno M., supra, 28 Cal.App.5th at p. 999.) In support of its
holding, the Court of Appeal reasoned: “Plainly, there was
substantial evidence that [the] father ‘disturbed the peace’ of [the
children].” (Id. at p. 997.) Specifically, it noted the record showed
the children “were frequently present to witness the abuse[,]”
that the couple’s five-year-old son “yelled at his father to stop[ ]”
and “reported that the attacks scared him[,]” and that their two-
year-old daughter “covered her ears” during an incident. (Ibid.)
Additionally, the Court of Appeal noted that “while the
children had not yet been hurt during [the parents’] altercations,
the court could properly consider the extent and violence of [the]
father’s attacks on [the] mother when issuing the order.” (Bruno
M., supra, 28 Cal.App.5th at p. 998, italics in original.) Therefore,
the Court of Appeal determined “the juvenile court ‘could
reasonably infer, from [the] father’s tendency to resort to violence
as well as from his evident lack of impulse control, that he might
be a threat to the [the children’s] safety[,]’” and that “‘[s]uch a
threat could arise, even in the mother’s absence, if the father got
angry with another adult or with [the children].’” (Ibid.)
As in Bruno M., the record in this case reflects father
“‘disturbed the peace’” of the children by engaging in violent
conduct toward mother in their presence. (Bruno M., supra, 28
Cal.App.5th at p. 997.) Further, as in Bruno M., the evidence
shows that although the children were not physically harmed by
father’s conduct, the juvenile court could find he could present a
threat to their physical safety if they were not included in the
9
restraining order. (Id. at p. 998.) Therefore, we conclude the
restraining order is supported by substantial evidence.
All three children reported they saw father attack mother
with a knife. His violent conduct toward mother prompted them
to hide under the kitchen table. J.M.L. and J.M. reported feeling
scared during the incident. J.M.L. related that shortly thereafter,
he did not let father hug him when father tried, and told father
he loved mother. J.M. stated she “felt like father was trying to
kill mother” during the incident. She also stated she “‘couldn’t
stop crying’” afterwards, and that I.L. was crying as well.
In addition to observing the first incident, J.M. was present
for the second incident. As noted above, the record reflects J.M.
heard father call mother demeaning names, and saw him kick
mother. J.M.L. reported that on another occasion, after mother
had gone to sleep, he saw “‘father hit [mother] in the tummy and
she couldn’t breathe.’”
Both J.M. and I.L reported they were afraid of father.
Similarly, J.M.L. stated he did not like that father fought with
mother, and he felt scared whenever they fought. He related that
after his parents finished fighting, he felt as though he “was
going to cry[.]” J.M.L. also reported that he and his siblings “hide
underneath the bed from father[.]” All three children reported
they did not want to reside with father, and they wanted to
continue living with mother. Additionally, J.M.L. and J.M. stated
they no longer liked father.
In late June 2020, the children’s therapist reported J.M.
and I.L. “expressed being afraid of their father and some concerns
surrounding physical abuse.” He stated “[t]he children also
separately reported experiencing nightmares about [their] father
finding them and taking them away from their mother.”
10
According to the therapist, J.M.L. expressed “more concern for
[his] mother’s wellbeing than his own fears.” The therapist stated
that, overall, “[a]ll three of the children have been open about
observ[ing] physical altercations between the parents and being
afraid of their father.” A few days before the restraining order
hearing, he reported “the children are continuing to address fears
as it relates to their father finding their whereabouts or taking
them during an upcoming visit.”
Based on the evidence discussed above, the juvenile court
could reasonably find father has “‘disturbed the peace’” of the
children. (Bruno M., supra, 28 Cal.App.5th at p. 997; cf. C.Q.,
supra, 219 Cal.App.4th at p. 364 [children “stated they wanted
visits with their father and are not afraid of him”].) Pursuant to
Bruno M., this evidence is sufficient on its own to support the
inclusion of the children as protected persons in the restraining
order. (Bruno M., supra, 28 Cal.App.5th at p. 997 [“There need
only be evidence that the restrained person ‘disturbed the peace’
of the protected child.”].)
Although father concedes he “unquestionably . . . ‘disturbed
the peace’ of the children” by being violent with mother in their
presence, he maintains the evidence was still insufficient to
support their inclusion in the restraining order. Specifically, he
asserts the record does not demonstrate he would further contact
mother, or contact the children outside of monitored visits, and
therefore does not establish he would engage in conduct that
would further “‘disturb[ ] [their] peace’” in the future.
We are unpersuaded by father’s argument for two reasons.
First, he does not cite any authority demonstrating that when a
parent has engaged in conduct that “‘disturbed the peace’” of the
child in the past, the record must establish that the parent is
11
likely to engage in similar conduct in the future in order for the
child to be included in a restraining order. Indeed, Bruno M.
indicates father’s argument is inconsistent with, and therefore
unsupported by, existing caselaw. (See Bruno M., supra, 28
Cal.App.5th at p. 997, italics added [“There need only be evidence
that the restrained person ‘disturbed the peace’ of the protected
child.”].) Second, the evidence discussed above shows that even
though they occurred in the past, father’s acts of violence toward
mother continued to “destroy[ ]” the children’s sense of “‘mental
or emotional calm’” up until the restraining order hearing. (Id. at
p. 997.) Specifically, the children continued to report feeling fear
and anxiety related to father. Under these circumstances, and
considering father violated the TRO by going to their school,4 the
juvenile court could reasonably find the children’s inclusion in
the restraining order was necessary to protect their emotional
and psychological safety.
We further conclude the evidence is sufficient to support a
finding that the children’s inclusion in the restraining order was
necessary to protect their physical safety. On this point, mother
reported father “‘would snap at his nephews[ ] [and] his mom[,]’”
4 Father maintains he went to the children’s school because
the school informed him the children were not participating in
classes regularly, and that “if he or [m]other did not attend a
meeting at school, [one of them] would be arrested.” He suggests
we should credit his explanation and infer he would not contact
the children outside of their monitored visits despite his violation
of the TRO. In reviewing for substantial evidence, however, we
must “‘view the evidence in a light most favorable to the
[Department], and indulge all legitimate and reasonable
inferences to uphold the juvenile court’s determination. . . .’
[Citation.] ” (Bruno M., supra, 28 Cal.App.5th at pp. 996-997.)
12
he “‘broke [mother’s] TV and his mom’s TV[,]’” and he “‘would
fight with his niece’” and call her demeaning names. She related
father “damaged [her sister’s] car” five years ago. She also stated
that, on one occasion, he told mother that if she left him, “‘he was
for sure going to take [J.M.L.] away from [her].’” Further, the
mother of father’s oldest child from a prior relationship secured a
domestic violence restraining order against him in 2006.
Moreover, J.M.L. and J.M. reported father had hit them with an
open palm.
On this record, and considering the nature and extent of
the domestic violence incidents that gave rise to this case, “the
juvenile court ‘could reasonably infer, from . . . father’s tendency
to resort to violence as well as from his evident lack of impulse
control, that he might be a threat to [the children’s] safety. Such
a threat could arise, even in . . . mother’s absence, if . . . father got
angry with another adult or with [the children]. Even assuming
an opposite inference might be equally reasonable, we are not
authorized to second-guess the juvenile court on this point.’
[Citations.]” (Bruno M., supra, 28 Cal.App.5th at p. 998.)
In sum, for the reasons discussed above, we conclude the
record contains substantial evidence to support a finding that the
children’s inclusion in the restraining order was necessary to
protect their physical and emotional safety. Accordingly, the
juvenile court did not err by designating the children as protected
persons in the restraining order.5
5 Father also challenges the restraining order’s initial
duration, arguing the juvenile court lacked the authority to issue
a five-year restraining order under section 213.5. He argues that
because “the plain language of [section 213.5, subdivision (d)(1)]
mandates an initial maximum three-year term[,]” we should
13
DISPOSITION
The juvenile court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
COLLINS, J.
reverse the portion of the order providing for a five-year term and
remand the case to the juvenile court “with direction[s] . . . to
issue a new restraining order with an expiration date no later
than December 06, 2023.” As noted above, however, the juvenile
court modified the order while this appeal was pending and
changed the expiration date from December 6, 2025 to December
6, 2023. Accordingly, father’s argument on this issue is moot and
need not be addressed.
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