filed: ( 2022 )

Filed: 8/15/22 In re Aniya E. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re ANIYA E., a Person B312779
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No. DK17248A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff,
v.
AQUENDOLYN C.,
Defendant and Appellant,
TALMADGE K.,
Respondent.
APPEAL from an order of the Los Angeles County Superior
Court, Kristen Byrdsong, Juvenile Court Referee. Affirmed.
Pamela Rae Tripp for Defendant and Appellant.
Shep Zebberman for Respondent.
No appearance for Plaintiff.
Aquendolyn C., the maternal grandmother of seven-year-
old Aniya E., appeals the permanent restraining order issued by
the juvenile court pursuant to Welfare and Institutions Code
section 213.5 (section 213.5) prohibiting her from contacting or
approaching Aniya or Talmadge K., Aniya’s maternal
grandfather and now-adoptive parent. Aquendolyn contends the
order was not supported by substantial evidence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Dependency Proceedings
The juvenile court in 2017 sustained a dependency petition
pursuant to Welfare and Institutions Code section 300,
subdivisions (a) and (b), and declared Aniya a dependent child of
the court because of her father Jordan E.’s history of violent
behavior toward Aniya’s mother, Ambirre K. At the disposition
hearing Aniya was released to Ambirre under the supervision of
the Los Angeles County Department of Children and Family
Services. Approximately eight months later, following Ambirre’s
death in January 2018, Aniya was placed with Aquendolyn. In
March 2018, after being removed from Aquendolyn, Aniya was
placed with Talmadge. (In re A.E. (June 16, 2020, B302982)
[nonpub. opn.]; Jordan E. v. Superior Court (Nov. 19, 2019,
B299395) [nonpub. opn.] (Jordan E.).)
On April 27, 2018 the court granted Talmadge’s de facto
parent request and denied Aquendolyn’s request. (In re A.E.,
supra, B302982.) In December 2019 the court terminated
Jordan’s parental rights, ordered adoption as the permanent plan
for Aniya and identified Talmadge as Aniya’s prospective
adoptive parent. (Ibid.)
2
2. The Application for Restraining Orders, the Temporary
Restraining Orders and Aquendolyn’s Declaration
On March 8, 2021 Talmadge applied for restraining orders
against Jordan and Aquendolyn seeking protection for Aniya and
himself. Talmadge’s supporting declaration stated the request
was “due to intimidation and threats by both parties;
Aquendolyn’s harassment and history of fraud, deceit, and
violation of Court Orders to gain unauthorized access to Aniya;
and Jordan’s history of violence and aggression.” In particular,
as it related to Aquendolyn, Talmadge declared that for
eight months Aquendolyn had been leaving weekly voicemail
messages from a private telephone number after Talmadge had
blocked her number and despite his repeated requests not to call.
Talmadge explained that Aquendolyn in her messages, which she
claimed were for Aniya but which he believed were intended for
him, “unloads about how much she is grieving Aniya’s [m]other
(and [their] child)” and “repeatedly states that Aniya is meant to
be with [Aquendolyn], and only her.” He further explained the
messages, at two or three minutes each, were long and in them
Aquendolyn also “goes on about how Aniya is suffering by being
in [Talmadge’s] care, and this is not what Ambirre wanted.” The
messages were “very upsetting” to Talmadge and made him “very
worried for the emotional harm” Aquendolyn would “inflict on
Aniya if given the opportunity.”
Talmadge also described an incident in which the adoption
worker had come to his home for a visit and Aquendolyn had
emailed the worker immediately afterward to object to the
adoption. The adoption worker, who had not contacted
Aquendolyn, did not know how Aquendolyn had discovered the
worker had been assigned to the case. Talmadge was disturbed
that Aquendolyn somehow knew confidential information about
3
the adoption worker even though neither the worker nor he had
provided it to her.
Talmadge asserted Aquendolyn “has shown that she is
willing to go to great lengths to get what she wants,” including
the use of deception “to benefit financially from Aniya surviving
Ambirre’s death.” He stated Aquendolyn hid Ambirre’s illness
and falsified a health care directive for Ambirre after her death;
falsified documents to receive Social Security benefits due Aniya;
and, claiming to be Aniya’s guardian, filed a wrongful death
lawsuit on Aniya’s behalf with the assistance of attorney William
Newkirk, whom she had deceived into believing she was Aniya’s
guardian.1 Talmadge expressed fear Aquendolyn would continue
to impersonate Aniya’s guardian and to try to manipulate others
into helping her cause harm to Aniya and him.
Noting Aquendolyn had deceived the Department, violated
court orders and manipulated her monitors to gain unauthorized
access to Aniya in the past, Talmadge stated he believed she had
done so because, as her behavior had shown, she was obsessed
with “taking Aniya back,” regardless of the impact on the child.
Aquendolyn, he stated, would not be deterred by any reasonable
means and had admitted to him she would not stop. Finally,
referring to Jordan’s history of violence and aggression, including
1 Talmadge attached to his declaration an email from
Newkirk in which Newkirk stated, “Aquendolyn continues to
pester us with phone calls to complain about what’s going on in
the adoption proceedings. . . . She’s also asked why she can’t be
made as the ‘backup’ on [Aniya’s] annuity, ‘just in case something
happens to Talma[d]ge.’ I told her that she can’t be involved in
the proceeding because of the recent order . . . in which the court
directed that she not participate any further in anything having
to do with the action on An[i]ya’s behalf against” the hospital.
4
toward Ambirre, Talmadge asserted Aquendolyn and Jordan had
been “working in tandem” so that Jordan could obtain
unauthorized access to Aniya.
The juvenile court issued temporary restraining orders
against Aquendolyn and Jordan on March 10, 2021. Aquendolyn
responded to the request for a restraining order on April 15,
2021. In her declaration Aquendolyn stated she called weekly for
Aniya but Talmadge would not let her have a relationship with
the child. Aquendolyn claimed she had no financial incentive for
bringing the wrongful death lawsuit: Any funds obtained from
that action would be deposited into an annuity for Aniya, who
would be the only person to have access to them.
3. The Hearing on the Application for a Restraining Order
Against Aquendolyn
At the two-day hearing on Talmadge’s request for a
restraining order against Aquendolyn, Talmadge testified he
considered Aquendolyn dangerous and feared for Aniya’s and his
safety, noting at one point that Aquendolyn owned a gun. He
explained he had known Aquendolyn for 35 years and no longer
believed she was “sound minded.” Aquendolyn’s erratic behavior
began after their daughter died and Aquendolyn lost custody of
Aniya. Since then, Talmadge continued, he had observed a
decline in Aquendolyn’s emotional stability. He stated
Aquendolyn had made threats, and he was concerned
Aquendolyn would take Aniya and “become a flight risk.” He
believed Aquendolyn viewed him as an obstacle to becoming
Aniya’s caregiver and spoke of his death as a way to gain access
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to Aniya. Talmadge confirmed everything in his March 3, 2021
declaration was accurate with one minor correction.2
The court admitted into evidence Newkirk’s retainer
agreement, signed by Aquendolyn, for the wrongful death action
relating to Ambirre. The court observed the retainer agreement
listed Aquendolyn as Aniya’s guardian ad litem even though the
court had ordered Aquendolyn not to have any contact with Aniya
and had appointed Aniya’s counsel as the child’s guardian
ad litem.
Talmadge had saved several of Aquendolyn’s voicemail
messages but had deleted other messages because he found them
too disturbing. Three voicemail messages were played for the
court. In them, Aquendolyn’s statements included, “[T]here is
nobody better to tell [Aniya] about her Mother than me”; and,
“I’m just praying that [Ambirre’s] soul is resting. Because I know
her soul will really rest when you [Aniya] and I are reunited, and
we can be together because that’s what she wanted.”
Aquendolyn testified she believed Aniya should be placed
with her. She acknowledged signing the retainer agreement with
Newkirk as Aniya’s guardian ad litem even though that was not
accurate, admitted contacting Talmadge on his cellphone in 2021
and continuing to call after he had asked her to stop, and
requesting to serve as Talmadge’s backup for Aniya’s annuity
after Aniya had been removed from her care. She also admitted
having unmonitored visitation with Aniya during the time the
court had ordered monitored visits.
2 Talmadge’s correction to his declaration was not relevant to
disposition of this appeal.
6
Aquendolyn conceded she had received monthly Social
Security death benefits of $1,300 on behalf of Aniya for 11 or
12 months when Aniya was in Talmadge’s care. Aquendolyn
claimed she spent that amount every month on Aniya’s behalf,
primarily for clothing, food, furniture and activities for the child.
Although Aquendolyn sent Talmadge toys and clothing, she
admitted she did not send him money or furniture.
Following argument of counsel, the court on May 18, 2021
issued a five-year restraining order protecting Aniya and
Talmadge from Aquendolyn.3
DISCUSSION
1. Governing Law and Standard of Review
Section 213.5, subdivision (a), authorizes the juvenile court
to issue an order after a dependency petition has been filed
“enjoining a person from molesting, attacking, striking, stalking,
threatening, . . . harassing, telephoning, . . . contacting, either
directly or indirectly, by mail or otherwise, coming within a
specified distance of, or disturbing the peace of the child or any
other child in the household.” Under section 213.5 the court may
also issue orders protecting “any parent, legal guardian, or
current caretaker of the child.” (§ 213.5, subd. (a).) At the
hearing for the 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.” (Cal. Rules of Court,
rule 5.630(f)(1).)
3 On October 8, 2021, following finalization of Aniya’s
adoption, the juvenile court terminated its jurisdiction in the
dependency case.
7
Welfare and Institutions Code section 213.5 provides that
application for the restraining order is to be made “in the manner
provided by Section 527 of the Code of Civil Procedure or in the
manner provided by Section 6300 of the Family Code, if related to
domestic violence.”4 (Welf. & Inst. Code, § 213.5, subd. (a).) This
incorporation of Family Code section 6300, part of the Domestic
Violence Prevention Act (DVPA) (Fam. Code, § 6200), was
intended to permit the juvenile court to issue Welfare and
Institutions Code section 213.5 restraining orders under the
same standards provided for in the DVPA. (Priscila N. v.
Leonardo G. (2017) 17 Cal.App.5th 1208, 1214; see Cal. Rules of
Court, rule 5.630(c) [“[t]he definition of abuse in Family Code
section 6203 applies to restraining orders issued under Welfare
and Institutions Code section 213.5”].)
“‘[A]ppellate courts apply the substantial evidence standard
to determine whether sufficient facts supported the factual
findings in support of a [section 213.5] restraining order and the
abuse of discretion standard to determine whether the court
properly issued the order.’” (In re S.G. (2021) 71 Cal.App.5th
654, 670; accord, In re Carlos H. (2016) 5 Cal.App.5th 861, 866.)
“‘[W]e 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
4 The application for restraining order protecting Talmadge
and Aniya related to domestic violence. (See Fam. Code, § 6211,
subds. (d) & (f) [defining “domestic violence” as abuse perpetrated
against specified persons, including a “person with whom the
respondent has had a child” or “[a]ny other person related by
consanguinity or affinity within the second degree”].)
8
the restraining order may not be disturbed.’” (In re Bruno M.
(2018) 28 Cal.App.5th 990, 996-997.) “It is not our function to
second-guess [the juvenile court’s] credibility determinations or
weighing of the evidence.” (In re S.G., at p. 672; see In re Eli B.
(2022) 73 Cal.App.5th 1061, 1072 [“[i]n reviewing the juvenile
court’s ruling we cannot reweigh the evidence or evaluate witness
credibility”; “[w]e must uphold the juvenile court’s factual
determination as long as it is supported by substantial evidence
‘“even though substantial evidence to the contrary also exists and
the trial court might have reached a different result had it
believed other evidence”’”].)
2. Substantial Evidence Supports the Restraining Order
Protecting Talmadge
Aquendolyn contends there was insufficient evidence to
support issuance of the restraining order protecting Talmadge.
Relying on In re Brittany K. (2005) 127 Cal.App.4th 1497, 1512,
she argues the transcripts of the voicemail messages only show
her love for Aniya and contain no language that “could
reasonably result in serious harassment, alarming, tormenting or
terrorizing” or “serious annoyance” of Talmadge.5
In re Brittany K., supra, 127 Cal.App.4th 1497, however,
involved the term “stalking” as used in section 213.5. Like the
parallel provisions in the DVPA, section 213.5 provides for much
broader protection, specifically authorizing orders to prevent the
restrained individual from disturbing the peace of the child or the
child’s caregiver seeking protection. (See Burquet v. Brumbaugh
(2014) 223 Cal.App.4th 1140, 1144; In re C.Q. (2013)
219 Cal.App.4th 355, 363 [“[i]ssuance of a restraining order
5 Italics in the quoted excerpts have been omitted.
9
under section 213.5 does not require ‘evidence that the restrained
person has previously molested, attacked, struck, sexually
assaulted, stalked, or battered’” the protected person].)
Under both the DVPA and section 213.5, “[a]nnoying and
harassing an individual is protected in the same way as physical
abuse,” and “‘protective orders can be issued because of persistent
unwanted phone calls or letters.’” (Perez v. Torres-Hernandez
(2016) 1 Cal.App.5th 389, 398-399 [characterizing as “incorrect
under the DVPA” the trial court’s determination “that ‘[a]buse is
not merely simply annoying or harassing—occasional harassing
phone calls intended to annoy the other person’”].) Under the
DVPA, “‘disturbing the peace of the other party’ refers to conduct
that, based on the totality of the circumstances, destroys the
mental or emotional calm of the other party.” (Fam. Code,
§ 6320, subd. (c); see, e.g., In re Marriage of Evilsizor & Sweeney
(2015) 237 Cal.App.4th 1416, 1425 [disturbance of wife’s peace by
husband’s conduct in “‘disclosing or threatening to disclose to
third parties for no particular reason intimate details of [their]
lives’”]; Burquet v. Brumbaugh, supra, 223 Cal.App.4th at p. 1144
[defendant disturbed plaintiff’s peace by contacting her by phone,
email and text with messages containing inappropriate sexual
innuendo, despite her repeated requests that he not contact her,
and arriving at her residence uninvited and refusing to leave].)
At the hearing on the request for a permanent restraining
order, Talmadge’s attorney argued, in part, that Aquendolyn had
harassed Talmadge and disturbed his peace. The juvenile court
agreed, finding Aquendolyn’s conduct was harassing and
threatened Talmadge’s emotional stability. Substantial evidence
supported that finding. Aquendolyn’s argument to the contrary,
pointing to her statements of love for Aniya in the three
10
transcribed voicemail messages, disregards the wealth of
evidence before the court of her troubling conduct directed to
Talmadge. Indeed, even with respect to her voicemail messages,
Aquendolyn ignores Talmadge’s testimony that most of her
messages had been deleted as “so disturbing” to him and his
declaration that in those messages she “goes on about how Aniya
is suffering by being in [Talmadge’s] care.”
Moreover, Talmadge testified Aquendolyn’s persistent
phone calls, which continued despite his repeated requests she
cease doing so, and “too many threats to take lightly,” caused him
fear and concern. Nothing more was required to support the
juvenile court’s finding that a permanent restraining order was
appropriately issued to protect Talmadge.6 (See In re Marriage of
Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 703 [“[t]he
testimony of one witness, even that of a party, may constitute
substantial evidence”].)
3. Substantial Evidence Supports the Restraining Order
Protecting Aniya
During the hearing the juvenile court commented that
Aquendolyn’s voicemail statements that Aniya’s dead mother
would only be happy knowing Aquendolyn was in contact with
6 Although not raised in the juvenile court or addressed in
Aquendolyn’s appellate briefs, the five-year order granted by the
juvenile court appears to violate section 213.5, subdivision (d)(1),
which authorizes the court to grant a permanent restraining
order that remains in effect “no more than three years, unless . . .
extended by further order of the court on the motion of any party
to the restraining order.” Any issue regarding the appropriate
duration of the restraining order should be presented in the first
instance to the superior court.
11
Aniya were inappropriate, harassing and threatening “to the
emotional well-being of the minor to hear these statements about
what the mother would have wanted.” Pointing to that comment
by the court, Aquendolyn argues the restraining order as to
Aniya was not supported by any evidence because the child never
heard the messages.7
Aquendolyn’s argument misperceives the record. The
court’s reference to “the emotional well-being of the minor to hear
these statements” was to the likely impact should Aniya hear
them and was focused on Aquendolyn’s inability to adhere to
court orders and directives—for example, to refrain from
speaking to a child about case issues.8 The court did not find that
Aniya had heard the messages, nor did it need to.
That Aniya had not heard Aquendolyn’s voicemail
messages did not preclude an order protecting Aniya from
Aquendolyn, whose conduct constituted “disturbing the peace” as
defined in the DVPA, which includes “coercive control, which is a
pattern of behavior that in purpose or effect unreasonably
interferes with a person’s free will and personal liberty.”
“Examples of coercive control include, but are not limited to,
unreasonably . . . [¶] . . . [¶] . . . [c]ontrolling, regulating, or
monitoring the other party’s . . . finances [or] economic
resources.” (Fam. Code, § 6320, subd. (c)(3).) Similarly,
7 Aquendolyn also contends sharing memories of Ambirre
would be comforting to Aniya, not threatening or harassing.
8 Specifically, the juvenile court, when discussing
Aquendolyn’s statements, stated that “all caregivers, everyone
involved in the case, [were] always admonished to not discuss
case issues.” It also referred to Aquendolyn’s continuing inability
to follow the court’s orders.
12
“molesting,” another form of abuse under the DVPA (Fam. Code,
§§ 6203, subd. (a)(4), 6320, subd. (a)), “‘“means to interfere with
so as to injure or disturb; molestation is a willful injury inflicted
upon another by interference with the user of rights as to person
or property.”’” (In re Cassandra B. (2004) 125 Cal.App.4th 199,
212 [mother “molested” Cassandra by “attempting to gain entry
to the home of Cassandra’s caregivers without their knowledge,
appearing at Cassandra’s school and then following behind the
caregiver’s car after Cassandra was picked up from school,
together with her threats to remove Cassandra from her
caregivers’ home”].)
In explaining its decision to grant the restraining order, the
juvenile court expressly identified evidence falling within these
categories of abuse, including Aquendolyn’s unauthorized contact
with Aniya and her falsification of Social Security documents and
health care directives. That evidence amply supported an
implied finding of Aquendolyn’s unreasonable, coercive control
over Aniya. As Talmadge’s attorney pointed out at the hearing,
additional evidence regarding those factors could be found in the
Department’s reports, which were before the juvenile court.
Because the reports were not included in the appellate
record, Aquendolyn has not provided an adequate record to
assess her contention that, apart from the transcribed voicemail
messages, there was insufficient evidence to support the court’s
order. The issue has been forfeited. (See Jameson v. Desta
(2018) 5 Cal.5th 594, 609 [“‘“if the record is inadequate for
meaningful review, the appellant defaults and the decision of the
trial court should be affirmed”’”]; Randall v. Mousseau (2016)
2 Cal.App.5th 929, 935 [“[f]ailure to provide an adequate record
13
on an issue requires that the issue be resolved against
appellant”].)
Citing In re C.Q., supra, 219 Cal.App.4th 355 and In re
N.L. (2015) 236 Cal.App.4th 1460, Aquendolyn argues the
restraining order as to Aniya should be reversed, regardless of
the other evidence before the juvenile court, because, as in those
two cases, there was insufficient evidence the child’s safety would
be in jeopardy absent inclusion in the order. As explained in
In re Bruno M., supra, 28 Cal.App.5th at page 997, however,
“[t]here need only be evidence that the restrained person
‘disturbed the peace’ of the protected child.” Neither In re C.Q.
nor In re N.L. considered whether the peace of the protected
persons had been disturbed. In fact, in reversing the restraining
order as to the children because of insufficient evidence relating
to their safety, the court in In re C.Q. relied on In re B.S. (2009)
172 Cal.App.4th 183.9 As explained in In re Bruno, “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.” (In re Bruno, at
p. 999.)
Finally, relying in part on San Diego County Dept. of Social
Services v. Superior Court (2005) 134 Cal.App.4th 761, 767,
Aquendolyn contends the juvenile court committed reversible
error when it failed to recognize the difference between a
guardian ad litem appointed for Aniya for purposes of the
wrongful death litigation and a guardian ad litem appointed
under the Child Abuse Prevention and Treatment Act (CAPTA)
(42 U.S.C. § 5101 et seq.) in dependency proceedings. (See San
9 See In re C.Q., supra, 219 Cal.App.4th at pages 363-364.
14
Diego County Dept. of Social Services, at p. 768 [concluding
appointment of a guardian ad litem separate from a CAPTA
guardian ad litem was “necessary to make decisions for the child
in regard to investigating a possible tort action and initiating the
action by filing a tort claim against the appropriate government
entity under the California Tort Claims Act”].) Whatever
misstatement the juvenile court may have made on this point,
Aquendolyn admitted she was not Aniya’s guardian ad litem
when she signed the retainer agreement for the wrongful death
action falsely stating otherwise. If error by the juvenile court, it
was unquestionably harmless.
DISPOSITION
The juvenile court’s order is affirmed.
PERLUSS, P.J.
We concur:
SEGAL, J.
WISE, J.*
* Judge of the Alameda County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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