In re Jam.R. CA4/3 ( 2023 )

Filed 6/27/23 In re Jam.R. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re Jam.R. et al., Persons Coming Under
the Juvenile Court Law.
ORANGE COUNTY SOCIAL
SERVICES AGENCY,
G062095
Plaintiff and Respondent,
(Super. Ct. Nos. 22DP0863;
v. 22DP0864)
Jas.R., OPINION
Defendant and Appellant.
Appeal from orders of the Superior Court of Orange County, Isabel
Apkarian, Judge. Affirmed in part, reversed in part, and remanded.
Sean Angele Burleigh, under appointment by the Court of Appeal, for
Defendant and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Deborah B.
Morse, Deputy County Counsels, for Plaintiff and Respondent.
No appearance for the Minors.
* * *
Then three-year-old twins Jam.R. and M.R. (together, the Children) became
involved in these child welfare proceedings after a verbal altercation between their
parents, Jas.R. (Mother) and R.R. (Father) became physical. The Children have remained
in Mother’s custody throughout these proceedings.
After a joint jurisdiction/disposition hearing, the juvenile court sustained
the child welfare petition, removed the Children from Father’s custody, ordered family
maintenance services for Mother and enhancement services for Father, denied Mother’s
request for a restraining order, and denied the request of the Orange County Social
Services Agency (the Agency) to terminate the child welfare proceedings. Mother
appealed from the jurisdiction/disposition order. As explained in detail, post, we affirm
in part, reverse in part, and remand.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
I.
FATHER’S FELONY CHILD ABUSE CONVICTION AND PREVIOUS CHILD WELFARE CASE
In March 2005, Father severely beat his then-girlfriend’s two-year-old son;
the child died sometime later as a result of his injuries. Father was convicted of felony
child abuse.
As a result of Father’s criminal actions, his own three-year-old son was
declared a dependent of the court in April 2005. That child welfare case was dismissed
with custody to the child’s mother, but a new proceeding was initiated when that child’s
mother allowed Father to have unsupervised contact. The sustained petition in that
2
proceeding alleged Father caused the death of a child, had an unresolved history of
substance abuse, had a history of violent behavior including assaults on his former
girlfriend and her child, another former partner, and a police officer. Father was denied
reunification services and his son was ultimately adopted out of the dependency system.
II.
THE INCIDENT LEADING TO THE PRESENT CHILD WELFARE CASES
AND THE POLICE REPORT
Mother and Father began dating in 2016. They broke up and got back
together several times but have been separated since 2019 or 2020. They are the parents
of the Children, who are now four years old. The family court ordered that Mother have
custody of the Children, with Father having visitation on weekends and some weekday
afternoons.
On Saturday, June 25, 2022, Mother called the police. The police
dispatcher “could over hear a verbal dispute in the background, as well as the sounds of
children screaming and crying.” A police officer responded to the home; Father had left
before the police arrived. Mother was “extremely upset” and was crying. She had visible
injuries on her face, said she had pain in her nose and teeth and numbness on the right
side of her face. The Children were “hysterically crying” and the officer saw children’s
clothing thrown around in disarray. Mother told the officer when Father came to pick up
the Children for visitation, she told him not to come inside because she had just gotten
over COVID, but he entered anyway. Mother gave Father clothes for the Children.
Father asked for a bag or backpack to put the clothes in, but Mother said he should have
brought his own bag. Father became upset and he and Mother began to argue. Father
raised his voice, shouted obscenities, and threw the Children’s clothing across the living
room.
3
Mother told Father he had anger management issues, after which he became
more upset and took M.R. outside while yelling to Jam.R. to follow. Mother followed
him outside to say goodbye to the Children. While Father held M.R. and Jam.R. looked
on, Father pushed Mother away with his elbow into her torso. As Mother continued
trying to say goodbye, Father pushed her into the wall, causing her to hit the back of her
head. Father asked, “‘Do you want me to hit you?’” and then hit Mother in the face two
times with a closed fist. Mother “gouged” Father’s eyes in self-defense. When Mother
said she was calling the police, Father put M.R. down on the ground and left without the
Children.
Although Mother was initially hesitant to obtain protection from Father,
“due to his recent behavior, and anger issues she finds trust to be unpredictable. She is in
fear that [Father] will return and hurt her or the kids.” An emergency protective order
was issued.
III.
THE DETENTION REPORT, THE WELFARE AND INSTITUTIONS CODE SECTION 300
1
PETITION, AND THE DETENTION HEARING
A social worker visited Mother’s home a few days later, and found the
home to be “clean, properly furnished, and had adequate provisions for the children” with
“no safety hazards.” Mother denied any history of drug or alcohol abuse. Mother
admitted being diagnosed with anxiety, depression, and PTSD in the past and disclosed
she had been a victim of a kidnapping with sexual abuse when she was 12. She had
received “‘years of therapy’” and would reach out for mental health services whenever
she needed them. She had also gone to therapy for help in dealing with postpartum
1
All further statutory references are to the Welfare and Institutions Code, unless
otherwise noted.
4
depression but had been told by her therapist she no longer needed therapy. Mother
indicated that due to the domestic violence incident with Father, she would resume
therapy.
After the incident, Mother requested an ex-parte order from the family
court and was granted a temporary restraining order protecting herself and the Children.
Mother claimed she knew nothing about Father’s previous child welfare
case and felony child abuse conviction until after she moved in with him. She stayed
with Father after she learned the truth, which she admitted “did not show the best
judgment.”
During their relationship, Father was “‘up and down and unpredictable,’”
and verbally and emotionally abused Mother. The family had to “‘walk around on
eggshells’” to avoid Father’s temper. Mother did not want to get back together with
Father but was willing to co-parent the Children with him. However, during a recent
outing with the Children, Father got upset while he was driving and threw his cellphone
toward Mother. He stopped for gas and “was hitting the gas pump and slamming items
around,” all of which caused the Children to be scared.
Several days after the incident, the social worker spoke to the Children.
They were dressed appropriately, showed no signs of abuse or neglect, appeared
physically and developmentally on track, and were energetic and ran around playing.
Regarding the June 25 incident, M.R. told the social worker, “‘daddy pushed mommy
against the wall,’” and “‘me, [Jam.R.], and mommy got hurt.’” She wanted Mother and
Father to “‘say sorry’” to each other. Jam.R. told the social worker Father “pushed him
down the stairs.” Mother noticed Jam.R. had more tantrums and had been hitting her and
M.R. more since the incident, and M.R. was having bad dreams. Mother was attempting
to obtain behavioral therapy for them.
The Children’s then 14-year-old maternal half-sibling, K.R., was asleep
upstairs on the day of the incident and did not witness it. K.R. denied any abuse, had no
5
knowledge of any substance abuse in the home, and denied seeing any domestic violence
in the home.
The Children’s adult maternal half-sibling, T.G., also lived in the home but
was not present for the incident. T.G. reported that after the incident Mother was scared
because this was the first time Father had been physically abusive toward her. When
T.G. was a minor and Mother and Father were together, T.G. heard Father “screaming
and yelling” at the Children. T.G. confronted Father and Father pushed T.G. “while he
2
was holding [Jam.R.].”
When Father was interviewed by the social worker, he denied any drug or
alcohol abuse, mental health issues, or neglect or abuse of the Children. As to the June
25 incident, Father claimed Mother threw the Children’s clothes at him while he waited
outside. When he asked her for a bag they began arguing. Father claimed Mother started
punching and kicking him while he held M.R., and M.R. screamed at Mother to stop.
Father denied hitting Mother but said he tried to keep her away by extending his open
palm. Father bumped into Jam.R. who “‘stumbled down’” the steps. Father then left
without the Children. When he tried to file a police report, the police “‘basically laughed
at him.’”
Father claimed Mother had “‘multi-personality disorder,’” threatened to kill
him before the Children were born, and gets “‘out of hand’” and starts yelling. He denied
ongoing domestic violence between them. Father refused to discuss the death of his
former girlfriend’s son, but admitted his biological son had been adopted by his maternal
grandmother because Father was in prison and that child’s mother was addicted to
substances.
2
It is unclear from the appellate record whether Father or T.G. was holding Jam.R. at the
time.
6
About three weeks after the June 25 incident, the Agency filed a child
welfare petition alleging the Children were within the juvenile court’s jurisdiction
3
pursuant to section 300, subdivisions (b)(1), (f), and (j). At the initial detention hearing,
the court detained the Children from Father, left them in Mother’s custody and care, and
ordered supervised visitation for Father. Mother requested and was granted a temporary
restraining order against Father by the juvenile court.
IV.
THE AGENCY’S REPORTS BETWEEN DETENTION
AND THE JURISDICTION/DISPOSITION HEARING
After the detention hearing, the Children remained in Mother’s custody and
care. During a visit, M.R. told the social worker she had seen when “‘Daddy pushed
mommy on the head on the wall’” and “‘mommy had blood on nose.’” The Children
were generally healthy and up-to-date on medical and dental examinations. They were
engaged in “developmentally age-appropriate activities,” including dance classes,
summer camp, and swimming lessons. During monthly visits with the Children, the
social worker regularly observed the Children were clean, appropriately dressed, and well
cared for. Mother had enrolled the Children in weekly play therapy.
Mother participated in completing her case plan. She enrolled in a
parenting class and participated in a parenting support group that met after her class, a
personal empowerment program, and therapy. While waiting for her individual therapy
3
As to section 300, subdivision (b)(1), the petition alleged a failure by the parents to
protect the Children because of domestic violence, Father’s anger management issues,
substance use, severe physical abuse of an unrelated two-year-old child, criminal history,
and Mother’s history of mental health issues. As to subdivision (f) of section 300, the
petition alleged severe physical abuse by Father causing the death of an unrelated two-
year-old child and as to section 300, subdivision (j), the petition alleged the Children’s
paternal half-sibling had been abused or neglected by Father.
7
referral to go through, Mother got herself on a waitlist for individual counseling through
her domestic violence program, and began counseling in September 2022. She planned
to continue with therapy even after her involvement with the court and the Agency was
over.
During the earliest stages of the child welfare proceedings, the Agency was
precluded from scheduling visitation due to the protective order. Father called the
Agency and demanded visitation; he would “scream” and hang up. Father was allowed
to begin visiting the Children in September 2022. He told the Agency he was only
available on the weekends due to school and work.
While the Children enjoyed seeing Father at visits, he had difficulty
following visitation guidelines and acted in a threatening and aggressive manner towards
staff. His “demeanor towards the monitor was hostile and rude” throughout a visit on
September 10, 2022. When the social worker attempted to redirect one of the Children,
Father angrily told her “‘you are only here to supervise the visit.’” He threatened to
spank M.R. if she did not put her shoes and socks on. At the end of the visit he told
M.R., “‘I need to go before I say mean/bad things.’”
Father “‘was belligerent and would not let [a social worker] get in a word
edgewise’” when the social worker called to schedule a visit. The social worker reported:
“‘With raised voice, he was threatening to go after me personally, speak to my
supervisor, and make sure that I lost my job if I did not have his children at [the visitation
center] at 9:30 a.m. He said that he hated me because I was a part of the Agency that was
keeping him from getting his hours with his children. (He used more ‘colorful’ language
than that.)’”
A visitation monitor described Father’s behavior during a visit as:
“‘bullying, manipulation, inconsideration, haughtiness, rudeness, intimidation,
argumentation and threats.’” A sheriff’s deputy reported “father’s behaviors [were]
inappropriate for the center.” A separate visitation monitor noted: “‘He was angry,
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disrespectful, defiant, telling the staff how to do their job, he tried intimidating the staff,
he was making other families uncomfortable.’”
The social worker attempted to speak to Father about his behavior and
inform him the visitation center would no longer accommodate his visits. Father became
irritated and said, “‘whoever is telling you that is bullshit.’” Father claimed the visitation
center staff was treating him disrespectfully: “‘If you come at me with attitude and being
disrespectful so will I.’”
Mother told the social worker the Children were emotionally affected after
visits, and she was concerned about Father’s ability to control his anger during visits.
M.R. had said, “‘[Father] was rude to the man and women,’” “‘daddy is sad or mad,’”
and “‘daddy will say don’t touch my children.’” M.R. had also become protective of
Father: “‘I have to take care of my daddy.’” Jam.R. had exhibited more “aggressive
behaviors” such as throwing tantrums when he did not want to share with his sister or
follow the rules at home.
Based on the foregoing, the Agency filed an ex parte request on October 3,
2022, seeking authorization “to terminate any visit upon inappropriate conduct by Father”
and ordering that “Father be required to visit at monitored locations with [a security
officer] present.” After a hearing on October 6, 2022, the court granted the ex parte
request.
Initially, Father was not interested in discussing his case plan. Father
denied fault, declined to participate in services, blamed Mother for everything, and
repeatedly told the social worker, “‘don’t tell me what to do.’” On another occasion
Father said he was uninterested in services and only interested in visitation. He used
profanity, spoke in a loud tone of voice, and stated “he was mad about the situation.”
9
Between detention and the jurisdiction/disposition hearing, Father only
4
participated in one 12-hour online parenting class. Father showed up for a single
random drug test, which was positive for cannabis and THC. The social worker noted
Father was not entitled to reunification services because the Children were in Mother’s
custody, he had caused the death of another child through abuse or neglect (§ 361.5,
subd. (b)(4)), and he had had his parental rights terminated over a half-sibling and had
not resolved the issues leading to that child welfare proceeding (§ 361.5, subd. (b)(11)).
V.
THE JURISDICTION/DISPOSITION HEARING
A combined jurisdiction and disposition hearing was held in November
5
2022. The Agency recommended the juvenile court sustain the petition, declare
dependency, terminate jurisdiction with exit orders, and grant sole custody of the
Children to Mother. The juvenile court admitted into evidence all of the Agency’s
6
reports, and heard testimony from Father, Mother, and the social worker.
4
The Agency had recommended the following services as part of Father’s case plan:
Batterer’s Intervention Program, Child Abusers Treatment Program, individual
counseling, parenting classes, 12-step program meetings, outpatient substance use
treatment program, and random drug testing.
5
The hearing was continued multiple times. Some of the delays were caused by two
separate attorneys declaring a conflict and asking to be relieved from representing Father.
The temporary restraining order against Father was reissued at every continuance so the
propriety of a permanent restraining order could be heard with the issues of jurisdiction
and disposition.
6
These were the jurisdiction/disposition report dated August 16, 2022, addendum report
dated September 1, 2022, ex parte request dated September 26, 2022, addendum report
dated October 13, 2022, addendum report dated October 25, 2022, addendum report
dated November 28, 2022, and addendum report dated November 29, 2022.
10
A. Father’s testimony
Father testified he was picking up the Children on June 25, 2022, because it
was his weekend based on the court-ordered custodial arrangement with Mother. Mother
had told him she was sick. Mother did not give him permission to enter; Father denied
pushing his way in. Jam.R. came out and gave Father a hug; M.R. played hide and seek
with him from inside, then came out and also gave him a hug. Father asked for clothes
for the Children and Mother gave him the clothes but would not give him a bag to put
them in. Father threw the clothes back into the house, grabbed M.R., and walked out. He
told Mother, “‘Since you won’t give me a bag, I will go buy them clothes.’”
The fight began when Mother attacked Father “with her fists and her legs,
her feet.” Father was holding M.R. and tried to push Mother away with the palm of his
hand. Father then fell down the stairs and knocked down Jam.R. Mother picked up
Jam.R., “ripped” M.R. out of Father’s arms, and told him to leave.
Father denied injuring Mother. “For me, for someone my size to cause
injuries, I would have to be hitting [them] pretty hard. I was pushing her away with the
palm of my hand (gesturing).” Father explained that his hands are two times the size of
most people’s and if he hit Mother she would have suffered much more damage, as he
was stronger than Mother and would “crush” her. Father testified: “I’m scared to death
of hitting people with these (gesturing) [be]cause what they can do. I won’t use this on
even a woman, let alone children, like y’all think I’m doing.”
Father called the Huntington Beach Police Department after the incident
and told them it was his custodial weekend; “[t]hey said there’s nothing we can do about
it.” The police laughed at him when he said Mother assaulted him. Father understood
that a temporary restraining order was issued because “she stated I hit on her.” A
permanent restraining order had not been issued; the next court date in the family court
was December 22, 2022.
11
Father admitted he went to prison from May 2007 to June 2015 on charges
of felony child abuse in connection with the death of his former girlfriend’s son. He was
then on parole for 13 to 16 months and had no parole violations. He attended an anger
management class in 2015 as part of his parole and had taken a second anger
management course subsequently. He did not believe he currently had an anger
management issue and testified, “I might get angry once in a while, but nothing where
it’s gonna get out of hand obsessive.”
He planned to attend another anger management program as required by his
case plan, but had yet to do so. He had not participated in a child abuser’s program or
batterer’s intervention program. He had completed one parenting class and was currently
attending another. Father denied having a drinking or drug problem and had not
participated in a 12-step program. He saw no reason to participate in drug testing or
counseling.
Father denied yelling or making any threats to anyone during visitation
with the Children. Father admitted making comments about the social workers’ lack of
effort in providing visitation, but denied doing so in front of the Children.
Father believed he has a “really good” relationship with the Children when
he gets to see them. He disciplines them by talking to them or placing them in timeout.
B. Mother’s testimony
Mother testified Father was emotionally and psychologically abusive to her
and the Children. When Mother and Father lived together there was “[j]ust a lot of
yelling at myself, my children, gaslighting, arguing all the time, controlling.” If she and
the Children failed to do what Father wanted, “there was constant yelling, arguing.”
Father raised his voice “[a]ll the time.” Mother felt “[d]emeaned, controlled, trapped.”
Father also had a substance use problem and smoked excessive amounts of marijuana.
When Father came to pick up the Children on June 25, Jam.R. ran up to
Father and M.R. played hide and seek. Mother told the Children she was sick so Father
12
could not come in. M.R. ran out and hugged Father. Mother handed the Children’s
clothes to Father and turned to get their sippy cups. Father said, “‘No bag?’” Mother
told him he already had a backpack. When Mother turned around again to get the sippy
cups, Father threw the clothes at her back. Father yelled, “‘F’ it. I’ll get my own
damn . . . clothes.” Mother said, “‘[y]ou have some serious anger management issues’”
and asked him to stop making a scene on her patio. Father became “irate” and said: “‘I
don’t have any F-ing anger management issues. You have an F-ing attitude.’” Father
told M.R., “‘Come on, [M.R.]. Mommy has an F-ing attitude. Let’s go.’” Mother
stepped forward to give the Children their sippy cups and say goodbye. Mother kissed
them and said, “‘Bye. I love you. Have a good day. Be good for Daddy. Listen to
Daddy.’” Father turned around and said, “‘Get the fuck away from my children. If I
can’t come in your house, then you can’t . . . then get the fuck away from my children.’”
Father asked Mother, “‘Do you want me to hit you?’” He then hit her twice with a closed
fist, once on the side of her nose and once on her right cheekbone.
Father pushed Mother repeatedly against the wall, saying, “‘Get the fuck
away from me. Get the fuck away from my children.’” At some point, Father bumped
into Jam.R., who was on the stairs, and Jam.R. lost his balance and fell down the stairs.
The Children were scared and crying during the incident. Neither understood what was
going on.
After the incident, Mother’s nose was bleeding, she had a cut on the side of
her nose, and she was bruised on her cheekbone. The back of her head hurt from being
pushed against the wall repeatedly. She called the police once she got inside with the
Children. She refused medical assistance because she “was more concerned about
[Jam.R.].”
Mother was in agreement with the provision of monitored visitation for
Father but was concerned about his anger management issues and instability. Mother
was concerned that he had “been acting severely out of character” by, for example,
13
hitting her in front of the Children. Father was constantly having temper tantrums and
the Children copied this behavior. The Children would be “emotionally molested from
his emotional instability” after visits. Mother was also concerned Father had recently lost
“an extreme amount of weight” and refused any drug tests. She was afraid Father’s
proposed monitors would not adequately supervise the visitation. Mother had seen
Father intimidate others. Mother wanted Father to have a relationship with the Children
“as long as it’s safe.”
Mother continued to request a restraining order, as she was afraid of Father.
C. Social worker’s testimony
The social worker testified Father had difficulty following visitation
guidelines: “As it is noted in the report, Father has not been compliant since the
Agency’s involvement in general.” The social worker explained: “My concern is the
father will continue to illustrate the same behaviors he has demonstrated up until now
with whoever—if we don’t have a safe monitored location, which places the children in
danger, in harm.” When asked how Father has harmed the Children by ignoring
visitation guidelines, the social worker explained: “It’s emotional and general neglect.”
“Father screams and yells at everybody, makes threatening behaviors towards adults.
Children are crying while he’s doing this.” The social worker clarified Father did not yell
at the Children.
After the evidentiary hearing, the Agency asked the juvenile court to
sustain the petition, declare dependency, and terminate the proceedings with exit orders.
Mother submitted on jurisdiction but asked the juvenile court to strike the allegation
regarding her mental health diagnoses, agreed with the Agency’s recommendation
regarding disposition, and reiterated her request for a restraining order against Father.
Counsel for the Children also asked the juvenile court to adopt the Agency’s
recommendations regarding jurisdiction and disposition and to issue a restraining order.
14
Father argued the restraining order should not issue and he should not be excluded from
the Children’s lives.
VI.
THE JUVENILE COURT’S JURISDICTION AND DISPOSITION ORDERS; MOTHER’S APPEAL
The juvenile court sustained the petition with modifications (but did not
strike the allegations regarding Mother’s mental health issues), removed the Children
from Father’s custody, ordered family maintenance services for Mother and enhancement
services for Father, ordered monitored visitation for Father, and denied Mother’s request
for a restraining order. The Agency, Mother, and the Children’s counsel all objected to
the court’s ruling.
After the jurisdiction and disposition hearing, a separate hearing was held
regarding the case plan and Father’s visitation. The court adopted the Agency’s proposed
case plan. One of the elements of Mother’s case plan was substance use testing: “Upon
reasonable suspicion, you will submit to random drug/alcohol testing with an observed
specimen collection as deemed appropriate by the assigned social worker. All
drug/alcohol tests are to be negative for drugs/alcohol. [¶] The following will be
considered positive tests: A required drug/alcohol test has been missed, a test where the
presence of illegal drugs and/or alcohol is detected, a test where the presence of
prescription drugs not prescribed for the person testing or [i]n excess of the amount
prescribed by any one doctor for the person testing is detected, an adulterated or diluted
urine sample is submitted, a urine sample insufficient for testing has been submitted, or a
sample other than the client’s own urine has been submitted. [¶] If you test positive, you
will be required to complete a substance abuse treatment program approved by [the
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Orange County Social Services (the Agency)].” Mother’s counsel had objected to this
7
element of the case plan at the jurisdiction and disposition hearing.
Mother filed a timely notice of appeal. The Agency submitted a letter brief
on appeal agreeing with Mother the juvenile court’s order should be reversed: “[The
Agency] was aligned with Mother below as to the termination of dependency and
remains so aligned on the present appeal. [The Agency] requests this Court to remand
the matter to the juvenile court with instructions to terminate dependency jurisdiction
with the children remaining in the custody of Mother and with Father authorized
monitored visitation by a professional monitor; frequency and duration of visits as well
[as] any other relevant visitation-related orders to be determined by the juvenile court.
[The Agency] does not otherwise oppose Mother’s appeal.”
DISCUSSION
I.
THE JUVENILE COURT ERRED BY FAILING TO ISSUE A RESTRAINING ORDER
PROTECTING MOTHER FROM FATHER
Section 213.5, subdivision (a) authorizes a juvenile court to issue a
restraining order in the same manner as a domestic violence protective order. “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 [petitioner or person to be protected].’ [Citation.] It may be sufficient to show that
the person to be restrained ‘disturb[ed] the peace’ of the petitioner [citation], meaning he
or she engaged in conduct that destroyed the petitioner’s ‘“‘mental or emotional calm.’”’
[Citation.] Section 213.5 is analogous ‘to Family Code section 6340, which permits the
7
The hearing on the approval of the case plan was not transcribed.
16
issuance of a protective order under the Domestic Violence Prevention Act . . . if “failure
to make [the order] may jeopardize the safety of the petitioner.”’ [Citations.]” (In re
S.G. (2021) 71 Cal.App.5th 654, 671.)
When a court grants a restraining order under section 213.5, the appellate
court applies the substantial evidence standard to determine whether substantial evidence
supports the factual findings, and applies the abuse of discretion standard to determine
whether the order should have been issued. (In re S.G., supra, 71 Cal.App.5th at
pp. 670–671.) “The substantial evidence standard of review takes on a unique
formulation where, as here, ‘the trier of fact has expressly or implicitly concluded that the
party with the burden of proof did not carry the burden and that party appeals.’
[Citations.] ‘[W]here the issue on appeal turns on a failure of proof at trial, the question
for a reviewing court becomes whether the evidence compels a finding in favor of the
appellant as a matter of law.’ [Citation.] Specifically, we ask ‘whether the appellant’s
evidence was (1) “uncontradicted and unimpeached” and (2) “of such a character and
weight as to leave no room for a judicial determination that it was insufficient to support
a finding.” [Citation.]’ [Citation.]” (In re S.G., supra, 71 Cal.App.5th at pp. 670–671.)
In this case, Mother’s request sought a restraining order protecting her and
the Children. The juvenile court denied the request in full.
The juvenile court found neither Mother nor Father was credible. The court
did not believe the incident occurred as Mother had testified, with Father throwing two
punches with a closed fist, although the court did believe Father had at least “laid a
finger” on Mother in an inappropriate way. Therefore, we consider the evidence from
sources other than Mother and Father.
When Mother called 911, the police dispatcher heard an ongoing argument
and the Children crying in the background. The police who arrived at the apartment
observed redness and blood on Mother’s face. Mother was extremely upset and the
17
Children were crying. The social worker reported M.R. stated Father had pushed Mother
against a wall, and had hurt Mother, M.R., and Jam.R.
In addition to the allegations regarding the June 25 incident, the petition,
which was sustained by the juvenile court, alleged Father had a history of committing
violence against others, including but not limited to his former girlfriend’s son, a prior
partner, and a police officer. The criminal records included in the Agency’s reports
address Father’s prior felony child abuse conviction, 2005 conviction for battery on a
peace officer, and 2007 conviction for battery against a partner.
In the Agency’s ex parte request regarding visitation, it provided
information about Father becoming hostile, belligerent, aggressive, intimidating, and
combative whenever he was told something he did not agree with. Ultimately, the court
entered an order requiring a security officer to be present at all visits and permitting the
Agency to terminate future visits if Father engaged in inappropriate behavior.
In denying the restraining order, the juvenile court compared Mother to
other victims of domestic violence (“And I’ve worked with victims long enough to know
that there is a fear when there’s financial control, when there is emotional control. I don’t
8
see that here”), and suggested a belief Mother was using the June 25 incident to benefit
her in the family court case (“the Court can’t help but recognize that in family law,
domestic violence can result in absolutely losing rights”).
We would suggest caution in using such comparisons. As a panel of this
court has previously noted: “‘When evaluating the complexity of domestic violence
relationships, not every case will be the same. . . . ’ [Citation] [¶] We are also mindful of
society’s preconceptions that often damage the ‘credibility of victim-witnesses who
present on the stand in atypical and non-paradigmatic fashions.’ [Citation.] We expect
8
In arguing against the issuance of the restraining order, counsel for Father argued
Mother was a mutual combatant who did not need protection from Father.
18
such victims to be ‘sweet, kind, demure, blameless, frightened, and helpless’ [citation]
and ‘not a multi-faceted woman who may or may not experience fear or anger’ [citation].
‘These are the preconceptions that judges and jurors bring with them into the courtroom
when they assess the veracity of a victim-witness’s story.’ [Citation.] We encourage
continued diligence and education to guard against such preconceptions.” (In re Ma.V.
(2021) 64 Cal.App.5th 11, 26.)
In light of the uncontroverted evidence noted above, Mother made the
necessary showing for issuance of a restraining order protecting her from Father under
section 213.5, subdivision (a). The order should have issued protecting Mother.
A review of the evidence with respect to the Children leads to a different
result. As noted ante, the juvenile court found the parents not credible at the hearing, and
at the conclusion of the jurisdiction/disposition hearing the juvenile court did not find the
Father had caused injuries to Jam.R. as had been alleged in the petition. There was no
evidence Father had ever been violent with the Children. Indeed, the Children reported
enjoying visits with Father. Utilizing the standard of review set forth in In re S.G., supra,
71 Cal.App.5th at pages 670–671, the evidence was sufficient to support the trial court’s
denial of the restraining order as to the Children. We will therefore affirm in part and
reverse in part the juvenile court’s denial of the request for a restraining order, and
remand the matter with instructions to the juvenile court to grant the restraining order as
requested for Mother only.
II.
THE JURISDICTION ORDER MUST BE MODIFIED TO DELETE THE REFERENCE TO
MOTHER’S MENTAL HEALTH STATUS
Mother challenges the court’s jurisdiction order only to the extent it
sustained allegation b-4, which reads: “The mother . . . has a history of mental health
issues, which may be an unresolved problem. The mother reported being diagnosed with
19
anxiety, depression, and PTSD, that she has attended therapy in the past, but she is not
currently attending any therapy.”
Even when an appeal from a jurisdictional finding is moot, the appellate
court has discretion to review the issue. (In re D.P. (2023) 14 Cal.5th 266, 273 (D.P.).)
In D.P., the juvenile court sustained a petition alleging under former section 300,
subdivision (b)(1) the child was at risk of serious physical harm, damage, danger, and
physical abuse. (D.P., supra, 14 Cal.5th at p. 274.) While the parents’ appeal from the
jurisdiction order was pending, they fully complied with their case plan and the juvenile
court terminated the proceeding. (Id. at p. 275.) The appellate court dismissed the appeal
as moot, and declined to exercise discretionary review because “the parents ‘have failed
to identify a specific legal or practical negative consequence resulting from the
jurisdictional finding.’” (Id. at pp. 275–276.)
The California Supreme Court concluded because the stigma of the
jurisdictional finding alone was not enough to avoid mootness, and the jurisdictional
finding had no negative consequence that would be remedied by a favorable decision on
appeal, the appeal was therefore moot. (D.P., supra, 14 Cal.5th at p. 278.) But the
Supreme Court also held the appellate court has the “inherent discretion to decide certain
challenges to juvenile court jurisdictional findings, notwithstanding mootness.” (Id. at p.
285.) Relevant factors for the court to consider include (but are not limited to) whether
the challenged jurisdictional finding could prejudice the appellant or impact current or
future child welfare proceedings, whether the finding is based on allegations of
“particularly pernicious or stigmatizing conduct,” and whether only findings of
“particularly severe conduct” are challenged. (Id. at pp. 285–286.)
The factors identified by D.P. weigh in favor of the exercise of discretion to
address the challenged finding in this case. The jurisdictional finding Mother has
unresolved mental health issues could prejudice Mother in what will almost certainly be
an on-going dispute with Father regarding custody of the Children. This finding could
20
impact whether she is determined to have completed necessary case plan objectives in
this case, and could be alleged in any later proceedings. Finally, while mental health
issues and mental illness should not be viewed as pernicious or stigmatizing, the
unfortunate reality is that once one is branded as having mental health problems, one is
viewed differently by significant portions of society. We therefore elect to exercise our
discretion to consider Mother’s challenge.
The finding Mother has unresolved mental health issues and is not in
therapy is unsupported by the evidence before the juvenile court. Mother voluntarily
enrolled in therapy, participated in therapy, and indicated she would continue to so
participate even after the case is dismissed. Mother told the Agency she had participated
in therapy in the past to address the kidnapping and sexual abuse she experienced in her
childhood by an unknown perpetrator, and to address postpartum depression. Mother
resumed therapy after the domestic violence incident leading to this child welfare case.
Moreover, even if Mother still suffered from any mental health issues, no evidence was
presented to establish these issues posed any risk of harm to the Children.
III.
THE JUVENILE COURT DID NOT ERR BY ALLOWING THE PROCEEDINGS TO CONTINUE,
WITH SERVICES PROVIDED TO FATHER
In its reports and at the close of the evidentiary hearing, the Agency asked
the juvenile court to terminate the child welfare proceedings with exit orders. Counsel
for Mother and the Children concurred with this recommendation. The juvenile court,
however, did not terminate the child welfare proceedings, but instead continued the
proceedings and ordered enhancement services for Father. Mother challenges the
disposition order and the Agency agrees the juvenile court erred in failing to terminate
the child welfare proceedings.
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“The court shall terminate its jurisdiction unless the social worker or his or
her department establishes by a preponderance of evidence that the conditions still exist
which would justify initial assumption of jurisdiction under Section 300, or that those
conditions are likely to exist if supervision is withdrawn.” (§ 364, subd. (c).)
“Although the decision whether to terminate [jurisdiction] is considered
discretionary [citation], use of the word ‘shall’ denotes a mandatory act [citation]. [¶]
The Court of Appeal in In re J.F. (2014) 228 Cal.App.4th 202, 210, concluded ‘[t]he
language of section 364 does not literally require that the precise conditions for assuming
jurisdiction under section 300 in the first place still exist—rather that conditions exist that
“would justify initial assumption of jurisdiction.”’ Section 364(c) does not simply refer
to ‘conditions’ or ‘any conditions’ but states the court shall terminate jurisdiction unless
the social worker proves that ‘the conditions still exist which would justify initial
assumption of jurisdiction under Section 300.’ (Italics added.) By using the phrase ‘the
conditions still exist,’ the Legislature meant the conditions existing at the time of initial
assumption of jurisdiction continued to exist at the time of the hearing, not that new
conditions have arisen. Thus, we believe, the better interpretation of section 364(c) is
that the court must terminate jurisdiction if the conditions that justified taking jurisdiction
in the first place no longer exist. [Citation.]” (In re D.B. (2015) 239 Cal.App.4th 1073,
9
1085.)
A juvenile court’s decision whether or not to provide enhancement services
to a parent is discretionary, but that discretion turns on the best interest of the child.
9
Mother’s opening brief on appeal argues the governing statute is section 390, which
provides: “A judge of the juvenile court in which a petition was filed, at any time before
the minor reaches the age of 21 years, may dismiss the petition or may set aside the
findings and dismiss the petition if the court finds that the interests of justice and the
welfare of the minor require the dismissal, and that the parent or guardian of the minor is
not in need of treatment or rehabilitation.” Dismissals under section 390 are “‘rare and
usually occur only when the goal of protecting the child has been achieved without court
intervention.’ [Citation.]” (In re Carl H. (2017) 7 Cal.App.5th 1019, 1038.)
22
(In re Destiny D. (2017) 15 Cal.App.5th 197, 212–213; In re Baby Boy H. (1998) 63
Cal.App.4th 470, 474.)
In continuing the case and providing services to Father, the juvenile court
stated: “I’m also not closing the case. I’m not closing the case in part because there’s a
reason Social Services Agency brought it to court. And I also have to acknowledge
Dad’s had three lawyers since this case started. [¶] It is outrageous that it has taken this
long to get to juris/dispo, through no fault of his. He’s far from being an angel; but I
have to acknowledge the fact there has not been a constant individual to reach out when
there is an issue with visitation, when there is an issue with what is expected of him. [¶]
Maybe he will thumb his nose in the Court’s face for the next six months, and then my
decision will be a lot easier. But I’m gonna make sure it is very clear today what is
expected of him; and if he does not meet the requirements of this Court, then at that time
the Court can—or the County can renew their request to close. And at that time I may be
in a position to order sole legal, sole physical to Mother.”
The court also stated: “But if you continue the way the last six months
have gone, there is gonna be no doubt in my mind that they are each gonna ask to close
this case with sole physical and sole legal (gesturing). And I will have no evidence
before me to not grant them that request.”
There is no question but that the juvenile court, given the then-current
circumstances of this case, had the authority to terminate the child welfare proceedings
and issue exit orders regarding custody and visitation. But the court’s stated grounds for
continuing the matter—specifically the domestic violence between the parents, Father’s
anger management issues, the delays in getting the case to jurisdiction and disposition,
and Father’s lack of a consistent attorney representing him in the proceedings—do not
“‘“exceed the limits of legal discretion by making an arbitrary, capricious, or patently
absurd determination.”’ [Citations.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
23
The child welfare proceedings were initiated because Mother and Father’s
relationship had become so violent it presented a substantial risk of physical or emotional
harm to the Children and Father had unresolved anger management issues. At the time of
the jurisdiction/disposition hearing, there was evidence Father would become hostile and
combative whenever he disagreed with someone or something.
Mother testified Father’s violent behavior was out of character, and there
was no evidence Father had ever been violent toward the Children. Father had been
engaged in regular visitation with the Children throughout the pendency of the case. The
Children reported enjoying seeing Father during these visits. The juvenile court was well
within its discretion to decide Father was entitled to additional services to address his
anger management issues for the best interests of the Children.
The juvenile court did not abuse its discretion by failing to terminate the
proceedings with exit orders.
IV.
THE CASE PLAN SHOULD NOT HAVE REQUIRED MOTHER
TO PARTICIPATE IN RANDOM DRUG TESTING
As part of the case plan, the juvenile court ordered Mother to undergo
random drug and alcohol testing. Mother challenges this element of the case plan on
appeal. “‘The juvenile court has broad discretion to determine what would best serve and
protect the child’s interests and to fashion a dispositional order accordingly. On appeal,
this determination cannot be reversed absent a clear abuse of discretion.’ [Citation.] In
reviewing an order for abuse of discretion, we ‘“must consider all the evidence, draw all
reasonable inferences, and resolve all evidentiary conflicts, in a light most favorable to
the trial court’s ruling. [Citation.] The precise test is whether any rational trier of fact
could conclude that the trial court order advanced the best interests of the child.”’
[Citation.] ‘The trial court is accorded wide discretion and its determination will not be
24
disturbed on appeal absent “a manifest showing of abuse.” [Citation.]’ [Citation.]”
(In re Natalie A. (2015) 243 Cal.App.4th 178, 186–187.)
The appellate record does not support the imposition of a drug testing
requirement for Mother. The petition did not allege any substance use problems as to
Mother. By contrast, the petition did allege Father had a history of substance use issues,
and the mother of his son of whom Father lost custody had used methamphetamine and
prescription drugs; the juvenile court sustained those allegations. The Agency’s reports
do not raise any concerns regarding substance use by Mother. The Children’s teenage
maternal half-sibling denied any knowledge of substance use in the home. Mother denied
any substance use. There was no testimony at the jurisdiction/disposition hearing
regarding any substance use by Mother.
In the absence of any evidentiary support, the component of the case plan
requiring Mother to drug test must be stricken from the disposition order. (In re Sergio
C. (1999) 70 Cal.App.4th 957, 960 [drug testing order was abuse of discretion where only
evidence of drug use by the father was the mother’s unsworn and uncorroborated
statement, and social services agency did not make any investigation]; In re Basilio T.
(1992) 4 Cal.App.4th 155, 172–173 [substance use component in disposition order was
abuse of discretion when based solely on the mother’s “somewhat out of the usual”
behavior].) On remand, the juvenile court shall amend the case plan accordingly.
DISPOSITION
We reverse the trial court’s order denying the issuance of a restraining
order pursuant to section 213.5 as to Mother, and remand the matter to the juvenile court
to issue a restraining order protecting Mother from Father.
We direct the juvenile court to modify the jurisdiction order to delete
allegation b-4 from the petition, and otherwise affirm the jurisdiction order.
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We direct the juvenile court to delete the case plan requirement that Mother
undergo random drug and alcohol testing, and otherwise affirm the disposition order.
MOTOIKE, J.
WE CONCUR:
GOETHALS, ACTING P. J.
DELANEY, J.
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