In re Bruno M. ( 2018 )

Filed 10/10/18 Certified for Publication 11/2/18 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re Bruno M. et al., Persons B287537
Coming Under the Juvenile
Court Law.
LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF Super. Ct. No.
CHILDREN AND FAMILY 17CCJP00197A–B
SERVICES,
Plaintiff and Respondent,
v.
PEDRO M.,
Defendant and Appellant;
BRUNO M. et al., Minors, etc.,
Objectors and Respondents.
APPEAL from orders of the Superior Court of Los Angeles
County, Robert S. Wada, Juvenile Court Referee. Affirmed.
Christopher R. Booth, under appointment by the Court of
Appeal, for Defendant and Appellant.
Patricia K. Saucier, under appointment by the Court of
Appeal, for Objectors and Respondents.
No appearance for Plaintiff and Respondent.
_______________________________________
INTRODUCTION
Pedro M. (father) appeals from the juvenile court’s
jurisdictional findings and dispositional orders declaring his
children dependents of the court and detaining them from his
custody. Among other orders, the court issued a permanent
restraining order that restricted father from contact with
Evelyn S. (mother) and the two minor children. Father’s sole
contention on appeal is that the portion of the order protecting
the children was not supported by substantial evidence because
the children were “never in the line of fire” when he beat mother.
We conclude the children were indeed at risk of physical harm
and, in any event, father’s lengthy history of domestic violence
against mother and the parents’ frequent reconciliations justify
the minors’ inclusion in the restraining order. We therefore
affirm.
FACTUAL BACKGROUND
The family in this case consists of mother, father, Bruno M.
(born 2011), and Allison M. (born 2015).
1. History of Abuse
Father and mother met in 2009 and moved in together the
following year. Father would go on to hit and push mother about
three times a month for the rest of their relationship. Over the
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years, father inflicted bruises, scratches, split lips, and body pain.
Sometimes he choked mother—causing her to vomit or lose
consciousness. Father broke mother’s glasses at least three times.
He punched and kicked a door and the furniture, leaving holes
that a social worker later observed. Father was also jealous,
controlled mother’s money, and isolated her from her friends. For
the most part, mother stayed quiet about the abuse, and though
she would leave father for weeks at a time, he always convinced
her to come back.
Sometime in 2010, father beat mother for the first time by
choking her and kicking her leg.1 A hospital examination
confirmed her account: mother was diagnosed with a “soft tissue
contusion to the neck area.” Father was arrested and eventually
convicted of inflicting corporal injury on a spouse/cohabitant. He
was placed on probation and ordered to serve 26 days in jail and
complete a 52-week domestic violence program. The court also
issued a three-year criminal protective order.2 Nevertheless,
when father was released from jail, he “sweet-talked” mother into
taking him back.
Bruno was born in 2011, and in 2013, when Bruno was two
years old, father hit mother again.3 Though mother left father for
1 According to the police report from this incident, there was also
unreported domestic violence in 2009, but the 2010 incident was the
first one mother recounted to social workers.
2Father claimed that while he knew there was a temporary
restraining order in place, he was never served with a permanent
restraining order.
3It appears mother also reported father to authorities in 2012, but the
City Attorney declined to pursue the case.
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three months to live with the maternal grandmother, father
eventually convinced her to return.
On May 22, 2017, father hit and pushed mother. When
mother tried to leave, father called the police—and when they
arrived, father said mother had threatened to kill him. Mother
denied making such a threat, but admitted wanting to hurt
father because she was tired of his abuse. She had three
partially-healed cuts on her chin and small bruises on her left
leg. Though mother explained that she had been trying to defend
herself, she was committed, at father’s request, on a 36-hour
psychiatric hold for suicidal ideation and wanting to hurt father.
In early August 2017, mother told father she had had
enough. Father left. For a little while, he called only to speak to
the children, so when he came to the house to see the children on
August 13, 2017, mother let him in to use the restroom. Once
inside, however, father began calling mother a whore in front of
Bruno and Allison. When mother asked him to calm down, he
threatened to take the children away. He told mother she was
crazy. He told her he could kill her by hitting her. Then father
grabbed mother by the neck, pushed her towards the bed, and
broke her glasses. Allison covered her ears and Bruno watched.
As father choked her, mother managed to free herself by kicking
him. Finally, he left. Mother did not call the police. She was
afraid of traumatizing the children—and afraid that father would
take Bruno and Allison away if she reported him to authorities.
Father came to pick the children up again on August 20,
2017. A half-hour later, he returned, accusing mother of wanting
to see other people. When mother went outside to get the children
from the car, father called her a whore, then shoved her to the
sidewalk. Then, as mother was taking Allison out of her car seat,
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father grabbed mother, hit her on the chin with an unknown
object, and pushed her to the ground a second time. During the
incident, father appeared to be so focused on mother that he
“forgot the children were present.” He told mother, “ ‘If I wanted
to, I could kill you,’ ” and threatened, “ ‘The day I see you with
another man, I’ll kill you or I’ll do something that I might
regret.’ ” Eventually, mother was able to bring the children
inside—but father continued to bang on the door. Mother
sustained bruises to her legs, which the social worker observed
along with a photo of mother’s bloody chin.
A few days later, mother reported the incident to the police,
who contacted the Los Angeles Department of Children and
Family Services (Department). The police report confirmed
mother’s version of events. Father was charged with corporal
injury to a spouse/cohabitant (Pen. Code, § 273.5, subd. (a);
count 1); battery of a spouse/cohabitant (Pen. Code, § 243,
subd. (e)(1); count 2); and child endangerment (Pen. Code, § 273a,
subd. (b); count 3). Yet father failed to appear in criminal court,
and by the time the jurisdiction/disposition hearing was held in
this case, a bench warrant had been issued for his arrest.
2. Impact on Bruno
Bruno was just five years old when the family came to the
Department’s attention—and he worried a lot about mother. For
example, when mother regained consciousness after one of the
choking incidents, she found Bruno next to her. He said, “ ‘I
thought you were dead, Mommy.’ ” Bruno once asked mother,
“ ‘Why didn’t you make my daddy happy so he won’t hit you?’ ”
And after the August 20, 2017, incident, Bruno told his maternal
grandmother, “ ‘Daddy hit and pushed Mommy and Mommy
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pushed him with her leg.’ ” Bruno told the social worker that he
felt “scared” when his parents fought.
The violence impacted Bruno in other ways as well. Bruno
told mother, “ ‘If you don’t let me play with my toys, I’ll hit you
like my dad.’ ” Sometimes he was aggressive with mother and did
hit her. Bruno also mimicked hitting Allison the way he had seen
father hit mother.
When the social worker asked Bruno how his parents got
along, Bruno replied, “ ‘Sometimes they fight each other. Daddy
hits Mommy. He pushes Mommy into the couch, bed, and things
where there is clothes.’ ” He also reported that he had seen
father kick mother and heard someone kick the door. As for the
August 20, 2017, incident, Bruno said, “ ‘Daddy hits Mommy. He
pushed her on the bed and the couch and Mommy cried.’ ”
3. Father’s Statement
When the Department interviewed father, he agreed that
he and mother had a history of violent altercations. He stressed,
however, that though he had been arrested for domestic violence
in the past, it was before Bruno and Allison were born. After the
arrest, he had taken anger management classes and had learned
to leave a situation when there was conflict—and while father
acknowledged that he insulted mother during arguments in the
children’s presence, he claimed mother insulted him as well.
Father admitted pushing mother onto the bed during the
August 13, 2017, incident—but denied choking her and denied
that the children saw him push her. He explained that mother
was hitting him as he tried to leave the house. Father admitted
telling mother he could kill her by hitting her but denied it was a
threat. Similarly, father admitted that mother fell while he was
handing Allison to her during the August 20, 2017, incident but
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denied that he had pushed mother or caused her to fall. Finally,
father admitted that the children were present on some of these
occasions and that Bruno had yelled, “ ‘Stop, Daddy!’ ”
After father’s meeting with the social worker, father called
mother and told her the social worker had advised them to fix
things between themselves and not to obtain a restraining order.
Father warned mother that if she didn’t go along with this plan,
he would say bad things about her.
PROCEDURAL BACKGROUND
On September 5, 2017, the Department filed an application
to remove Bruno and Allison from father and place them in
mother’s care. The court granted the application that day.
Meanwhile, mother obtained a temporary restraining order in
family court protecting her and the children from father. Mother
needed father’s address to serve him with a copy, but father
refused to provide it. So, when the social worker called father to
notify him of the upcoming detention hearing, the social worker
also told him about the restraining order. Father asked the social
worker if it would be possible, in the future, “for him to have his
family back, including being with mother.”
On September 11, 2017, the Department filed a dependency
petition on behalf of both children alleging substantial risk of
serious physical harm and failure to protect. (Welf. & Inst. Code,4
§ 300, subds. (a), (b)(1).) At the initial detention hearing on
September 12, 2017, the court found the Department had made a
prima facie showing that the children were people described by
4 Allundesignated statutory references are to the Welfare and
Institutions Code.
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section 300, detained the children from father, and released them
to mother’s custody with monitored visitation for father. At
mother’s request, the court also issued a temporary restraining
order protecting mother, Bruno, and Allison from father. The
order required father to stay 100 yards away from mother and
the children and to have no contact with them except during
court-ordered visitation. Father objected to the inclusion of the
children in the order.
At the jurisdictional hearing on October 31, 2017, the court
sustained the allegations in the section 300 petition and found
father’s domestic violence and mother’s failure to protect the
children from it warranted dependency jurisdiction. The court
then proceeded to the dispositional hearing, and declared Bruno
and Allison dependents of the court. The court removed the
children from father and ordered reunification services and three
3-hour monitored visits per week. The court placed the children
with mother and ordered family maintenance services.
Finally, over father’s objection, the court issued a three-
year permanent restraining order under section 213.5,
subdivision (a), protecting mother and the children from father
except for peaceful contact related to monitored visitation. The
court found that “the children are, in fact, scared of father and
father had threatened at one time to take the children. I think
with that being the case, the children clearly—the court feels that
the children are in danger.”
Father filed a timely notice of appeal, and we appointed
counsel to represent him. On April 27, 2018, father filed an
opening brief in which he challenged the court’s decision to
include the children as protected parties in the permanent
restraining order. On May 29, 2018, the Department notified us
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that because it had taken no position on the matter below, it
would not be filing a respondent’s brief. On June 11, 2018, we
appointed counsel to represent Bruno and Allison, and on July 9,
2018, counsel for minors filed a respondent’s brief asking us to
affirm the court’s restraining order in its entirety. Mother is not a
party to this appeal.
DISCUSSION
Father contends there is no substantial evidence to support
the portion of the permanent restraining order protecting the
children. He does not challenge the portions of the restraining
order naming mother as a protected person and requiring him to
stay away from the family home where mother and the children
live.
1. Legal Principles and Standard of Review
Under section 213.5, subdivision (a), after “a petition has
been filed … to declare a child a dependent child of the juvenile
court, and until the time that the petition is dismissed or
dependency is terminated,” a 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 subdivision also
permits the court to issue orders including the child’s parent as a
person protected from the behaviors listed above.
In reviewing the issuance of a restraining order under this
section, “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
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the restraining order may not be disturbed.” (In re Cassandra B.
(2004) 125 Cal.App.4th 199, 210–211; In re B.S. (2009) 172
Cal.App.4th 183, 193 (B.S.).)5
2. Substantial evidence supports the court’s order.
Father insists there was no substantial evidence to support
inclusion of the children in the restraining order because he “was
never aggressive with the children, and [they] were never in the
line of fire” of his assaults on mother. Similarly, he argues that
while “the children may have been present during domestic
violence between mother and father, … they were never involved
in the melee.” We disagree.
As a preliminary matter, we note that while evidence the
restrained person has previously stalked, attacked, or inflicted
physical harm on the protected child “is certainly sufficient” to
justify issuance of a restraining order under section 213.5,
issuance of a restraining order does not require such evidence.
(B.S., supra, 172 Cal.App.4th at p. 193; In re C.Q. (2013) 219
Cal.App.4th 355, 363 (C.Q.).) Nor does it require evidence of a
reasonable apprehension of future physical abuse. (Ibid.) There
need only be 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.]” (Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389,
5 In Brittany K., the appellate court reviewed the lower court’s factual
conclusions for substantial evidence and reviewed its decision, on those
facts, to impose the restraining order for abuse of discretion. (In re
Brittany K. (2005) 127 Cal.App.4th 1497, 1512.) Our conclusion here
would be the same under that standard of review.
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401.) Plainly, there was substantial evidence that father
“disturbed the peace” of Bruno and Allison. Father hit mother
when Bruno was two years old, and continued to abuse her three
times a month thereafter. Five-year-old Bruno and two-year-old
Allison were frequently present to witness the abuse. Bruno
reported that the attacks scared him—a point the court stressed
below. He yelled at his father to stop. Allison covered her ears. At
one point, Bruno thought his unconscious mother was dead.
Furthermore, evidence the children were “in the line of fire”
provided a further basis on which the court could reasonably
conclude father had disturbed their peace. Father admitted that
the children had been present for some of the violence. For
example, on August 20, 2017, father hit mother in the face and
pushed her to the ground while she was removing Allison from
her car seat. Given that father was so focused on mother that he
would “forget the children were present,” Allison could easily
have been hurt.
And while the children had not yet been hurt during these
altercations, the court could properly consider the extent and
violence of father’s attacks on mother when issuing the order.
That is, 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
children’s] safety. Such a threat could arise, even in the mother’s
absence, if the 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.” (B.S., supra, 172 Cal.App.4th at p. 194; see
also Perez v. Torres-Hernandez, supra, 1 Cal.App.5th at pp. 402–
403 (conc. opn. of Streeter, J.) [addressing social science research
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linking spousal abuse and child abuse].) In addition, the court
could reasonably infer that the restraining order was necessary
to protect Bruno and Allison from both mother’s tendency to
return to father despite the issuance of a protective order and
father’s threat to abscond with the children—a threat the court
below found credible.
Nor are we persuaded by father’s reliance on C.Q., which
he contends is “nearly identical” to this case “in every relevant
respect.” C.Q. concerned two incidents of domestic violence—both
of which involved father hitting mother in the arm. (C.Q., supra,
219 Cal.App.4th at pp. 358–359.) The couple had four children—
ages 11, 12, 16, and 19. One of the children witnessed the second
arm-hitting incident; none had witnessed the first. (Id. at
pp. 357–358.) There had not been any other domestic violence in
the relationship, and the children were not afraid of their father.
(Id. at pp. 358, 364.) Here, on the other hand, father had been
beating mother three times a month for 10 years—frequently in
front of Bruno and Allison. Five-year-old Bruno and two-year-old
Allison were much younger and less able to protect themselves or
report any abuse than the children in C.Q., and the violence
Bruno and Allison witnessed was more severe. While the father
in C.Q. hit the mother in the arm, in this case, father choked
mother into unconsciousness, split her lip, and broke the
furniture. As such, we are not persuaded that C.Q. is “nearly
identical” to this case.
Similarly, father points to the two sentences C.Q. spends
distinguishing B.S. to support the proposition that evidence of
physical abuse is required to sustain a restraining order under
section 213.5. (See C.Q., supra, 219 Cal.App.4th at p. 365,
distinguishing B.S., supra, 172 Cal.App.4th at p. 194.) We do not
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read B.S. so narrowly. Though the infant in B.S. was indeed in
physical jeopardy, that case was premised on father’s general
inability to control himself during violent outbursts—of which
throwing the mother onto the child was but one example. (B.S., at
p. 194.) The court also emphasized that father had committed
repeated acts of domestic violence, and that “[d]uring previous
incidents, he had torn a door off its hinges and knocked a hole in
the wall.” (Ibid.) The court explicitly held that physical harm,
though sufficient, was not required. (Id. at p. 193.)
Moreover, when B.S. was decided, “disturbing the peace”
was not one of the enjoinable acts listed in section 213.5. That
language was not added to the statute until 2010, after B.S. was
decided but well before the conduct at issue here. (Stats. 2010,
ch. 572, § 25.) Thus, even if B.S. could be read to require that the
child be placed in actual physical jeopardy—and we don’t think it
can—that limitation plainly does not apply after the statute’s
amendment.
Accordingly, we conclude substantial evidence supports the
court’s order.
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DISPOSITION
The dispositional orders are affirmed.
LAVIN, Acting P. J.
WE CONCUR:
EGERTON, J.
DHANIDINA, J.
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Filed 11/2/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re Bruno M. et al., Persons B287537
Coming Under the Juvenile
Court Law.
LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No.
AND FAMILY SERVICES, 17CCJP00197A–B
Plaintiff and Respondent, Order Certifying
Opinion for Publication
v.
PEDRO M.,
Defendant and Appellant;
BRUNO M. et al., Minors, etc.,
Objectors and Respondents.
Non-party Family Violence Appellate Project and 12 other non-
parties have requested that our opinion in the above-entitled
matter, filed October 10, 2018, be certified for publication. It
appears that our opinion meets the standards set forth in
California Rules of Court, rule 8.1105(c).
The opinion is ordered published in the Official Reports.
LAVIN, Acting P. J. DHANIDINA, J.
EGERTON, J. did not participate in the decision to grant
publication.
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