In re Fernando L. CA2/1 ( 2024 )

Filed 2/23/24 In re Fernando L. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re FERNANDO L. et al., B326775
Persons Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. 20CCJP05910)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
F.L.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Tiana J. Murillo, Judge. Affirmed.
Richard L. Knight, under appointment by the
Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel and William D. Thetford, Principal
Deputy County Counsel, for Plaintiff and Respondent.
____________________
F.L. (father) mounts a substantial evidence challenge to the
portion of the juvenile court’s restraining order protecting his
children, Fernando and Andrew. We conclude the evidence
supported the juvenile court’s inclusion of Fernando and Andrew
as protected persons.
At the beginning of the proceedings, father described
himself as “a very jealous person and when I am [on] drugs it is
worst [sic]. I was on meth. . . . I have been in and out of jail a
lot.” During the dependency proceedings, father enrolled in drug
treatment programs, made significant progress, visited the
children consistently, and developed insight into how his anger
affected Fernando and Andrew. Prior to the juvenile court’s
issuance of a restraining order, however, father relapsed and
began using controlled substances, displayed erratic behavior,
was unable to control his anger, trespassed around mother’s
home, and refused to leave mother’s hospital room.
Notwithstanding his prior progress, because father’s conduct at
the time the juvenile court issued its restraining order justified
protecting the children, we affirm.
BACKGROUND
Father is the presumed father of Fernando and Andrew
(sometimes referred to as the children). Father has an adult
daughter, who is not a party to this proceeding. Mother’s
daughter Ariana, the children’s half sibling, was a dependent of
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the juvenile court but is not included in father’s challenge to the
juvenile court’s restraining order.
1. Petition
On November 3, 2020, the Los Angeles County Department
of Children and Family Services (DCFS) filed a Welfare and
Institutions Code1 section 300 petition identifying Ariana,
Fernando, and Andrew as dependent children. As later
sustained, the petition alleged mother and father “engaged in a
violent altercation in the children’s presence.” Father threw a
beer bottle at mother and hit mother with the beer bottle.
Mother shot at father with father’s firearm. At that time,
Fernando was three and Andrew one year old. When police
arrived to investigate the referral, father fled.
Social workers did not interview Fernando or Andrew
about the incident because the children were too young to provide
meaningful statements. Father’s adult daughter indicated
Fernando was scared and crying. An undated multidisciplinary
assessment of Fernando in advance of the jurisdictional hearing
indicated he needed mental health therapy because he displayed
aggression, sadness, and anxiety. A social worker described
mother and father’s volatile relationship as placing the children
at risk of emotional and physical harm, a description father does
not dispute.
2. Father’s history prior to the dependency proceedings
Father’s criminal history dates back to 1998 and includes
possession of a controlled substance, first degree burglary, grand
1 Undesignated statutory citations are to the Welfare and
Institutions Code.
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theft auto, grand theft, transporting a controlled substance,
carrying a loaded firearm in a public place, driving while under
the influence, possession of a controlled substance for sale,
possession of a firearm, receiving stolen property, hit and run
with property damage, taking a vehicle without the owner’s
consent, forgery, assault with a firearm, and corporal injury to a
spouse or cohabitant. Father was a gang member.
Mother told a social worker she and father had a history of
domestic violence, which included father’s threats to kill her.
Mother acknowledged that the children observed the domestic
violence incident leading to the dependency proceedings. Mother
also reported that father handed her a gun and she used it to fire
at him. According to mother, when she fired the gun, she was not
trying to kill father but was trying to scare him. Mother reported
father “was always on drugs.” The first time father hit mother
she was seven months pregnant, and he broke her nose. On
another occasion, father said in front of Andrew, “[J]ust know you
are going to get fucked up . . . .” Later that day, father hit
mother’s neck.
According to maternal grandfather, the night before the
incident that gave rise to the dependency proceedings, father
stayed “outside” mother’s home “all night long.” Also according to
maternal grandfather, on a prior occasion, father broke mother’s
nose.
Maternal aunt reported father hit mother with a bat in
2018.
3. Father makes progress during the dependency
proceedings
In May 2021, father lived at the Salvation Army’s adult
rehabilitation center. In January 2022, DCFS reported father
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had completed his drug rehabilitation program. Afterwards,
father enrolled in a 12-step program as well as relapse
prevention, parenting, health education, domestic violence, anger
management, and life skills courses. He also attended Alcoholics
Anonymous meetings and individual counseling. Between
September 4, 2021 and November 22, 2021, father had
13 negative drug tests. When father learned he mistakenly had
enrolled in a domestic violence class for victims, he enrolled in a
class for perpetrators. Father expressed an interest in spending
more time with his children and in more responsibility for their
care.
In April 2022, DCFS liberalized father’s visits so that
father could visit without a monitor. In April 2022, father spoke
to a social worker and indicated he did not want his children to
see him angry. The social worker reported, “[F]ather seems to be
working on himself and attempting to be more involved in his
children’s lives.”
In May 2022, DCFS reported father continued to test
negative for all controlled substances. Father also continued to
work with a sponsor and to attend individual sessions with a
licensed therapist. Father visited the children on Wednesdays
for three hours and on Sundays for six hours. DCFS reported
that father was in compliance with his case plan and continued to
test negative for controlled substances DCFS further reported
father understood “the role his actions had and the impact his
decisions had on his children. The father now takes ownership
for his actions and acknowledges his mistakes along with
working on better responses and better outlets when he becomes
upset.”
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Fernando stated he liked to visit father; Andrew was too
young to provide a statement. A social worker reported father
had developed a bond with Fernando and Andrew.
4. Father relapses
In August 2022, father stopped testing for controlled
substances. In October 2022, DCFS filed a request to convert
father’s unmonitored visitation to monitored visitation. Father
failed to appear seven times at his scheduled drug tests. Mother
reported father was trespassing where mother lived. In
November 2022, the court ordered monitored visits.
In December 2022, DCFS reported that father’s visits were
inconsistent. Father’s adult daughter told mother that father
had relapsed. Mother spoke to father, and father told her not to
tell the social worker about his relapse. Although father tested
negative for controlled substances, mother told the social worker
that father had purchased urine for his drug test.
In December 2022, DCFS reported that in the middle of the
night, Ariana saw father looking through mother’s bedroom
window. Ariana believed she was having a nightmare, but
security footage confirmed that father had jumped over a fence
and stood outside mother’s window.2 Security footage showed
father jumping over the fence and looking into the bedroom
window. Mother also reported that father harassed her while she
was hospitalized. When mother asked father to leave, father
said, “[Y]ou’re lucky I don’t fuck you up right now.” A social
worker concluded that father’s inconsistent testing and erratic
behavior suggested he had relapsed.
2 The security video was an exhibit in the juvenile court
but is not included in the record on appeal.
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5. The juvenile court grants a restraining order
restraining father from Fernando and Andrew among
others
On November 28, 2022, mother applied for a restraining
order against father. In her application, mother described the
following conduct:
“On or about 10/20/2022, [father] jumped over the exterior
fence of the family home and peered into a bedroom window.
This is captured on private video surveillance footage. . . . [Half
sister] was frightened by [father’s] presence and ran to Maternal
Grandfather, telling Maternal Grandfather that she had a
nightmare about someone looking into the windows of the family
home. This incident was reported to law enforcement.
“On or about 10/22/2022, [father] went to Mother’s hospital
room without invitation. Before Mother could ask [father] to
leave, [father] reviewed Mother’s private medical documents,
searched in the bathroom for other visitors, and persistently
asked Mother who else was with her in the hospital. Once
Mother asked [father] to leave, [father] told Mother, ‘You’re lucky
I don’t fuck you up,’ or words to that effect. This incident was
also reported to law enforcement.
“Father’s recent harassment and threats of violence have
caused Mother, her children, and the extended maternal family—
who reside in the family home—to feel fearful, harassed, and/or
annoyed. Father’s attempt to access the family home, in
particular, places the entire family—including Maternal
Grandfather, Maternal Great Aunt, and Maternal Cousin—at
risk for [father’s] escalating conduct, which corresponds to his
long history of domestic violence against Mother.”
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Mother requested that the restraining order include as
protected persons, herself, Fernando, Andrew, the children’s
half sister, maternal grandfather, and maternal great aunt, and a
cousin.
Mother also proffered exhibits with text messages from
father. One read, “Will be over your head until the time is right
for me to handle my bizz with you. You wanna disrespect on a
whole nother level and think that shit is just gonna be
whatever . . . never. Just know it ain’t over aiit no matter how
much time goes by . . . Piece of shit like you needs to be dealt
with . . . go and show who ever you want. Idgaf. Fuck them too!!”
On December 8, 2022, the juvenile court granted a
temporary restraining order.
At the January 11, 2023 hearing, father stipulated he sent
the above-described text messages and that it was he on the video
jumping the fence and looking into mother’s home. Father
agreed to the restraining order as it pertained to mother but
objected to including Fernando and Andrew. Mother’s attorney,
the children’s attorney and the Department urged the juvenile
court to include Fernando and Andrew.
On the same day, the court granted the restraining order,
including Fernando and Andrew. The court ordered father to
stay away from Fernando and Andrew, their home, school, and
child care facility. It carved out an exception for father’s
monitored visitation.
The court stated, “[There] is recent and additional
concerning behavior by the father as to the home where the
children and mother and other family members live. . . . [¶] I’ll
note that the video is concerning. It shows what was stipulated
as father essentially lurking around the family home where
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mother and the children and the other family members live.” The
court described father’s behavior as “stalking-type behavior.”
Father timely appealed from the order granting a
restraining order.3
DISCUSSION
On appeal, father challenges the restraining order only as
to its inclusion of Fernando and Andrew as protected persons.
Father argues there was no evidence that either Fernando or
Andrew “suffered previously from past domestic violence
perpetrated by Fernando.”
“ ‘[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.’ [Citation.] When an appellant
challenges ‘the sufficiency of the evidence, . . . [i]f there is
substantial evidence supporting the order, the court’s issuance of
the restraining order may not be disturbed.’ [Citation.]” (In re
S.G., supra, 71 Cal.App.5th at pp. 670–671.)
3 On the same day the court issued the permanent
restraining order, the court also terminated jurisdiction and
permitted father monitored visitation. Monitored visitation “is
not incompatible with a restraining order.” (In re N.L. (2015)
236 Cal.App.4th 1460, 1466.) Father does not appeal from the
termination of jurisdiction. Even though father did not appeal
from the order terminating jurisdiction, the challenge to the
restraining order is not moot. (In re S.G. (2021) 71 Cal.App.5th
654, 658.)
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Legal Background
“Section 213.5 governs the issuance of restraining orders by
the juvenile court. Thereunder, the juvenile court may issue,
inter alia, an order ‘enjoining any person from molesting,
attacking, striking, stalking, threatening, . . . battering,
harassing, telephoning, . . . contacting, . . . coming within a
specified distance of, or disturbing the peace of . . . any parent . . .
of the child [who is the subject of dependency proceedings],
regardless of whether the child resides with that parent, . . . in
the manner provided by Section 6300 of the Family Code.’
[Citation.]” (In re S.G., supra, 71 Cal.App.5th at p. 670.)
Section 213.5 also authorizes the court to enjoin the person from
such conduct directed at a dependent child. (§ 213.5, subd. (a).)
“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 (§ 213.5,
subd. (a)), 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 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.,
supra, 71 Cal.App.5th at p. 671.) A juvenile court may identify a
child as a protected person when the “evidence indicate[s] the
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children’s safety might be in jeopardy absent their inclusion in
the . . . order.”4 (In re C.Q. (2013) 219 Cal.App.4th 355, 363–364.)
Bruno M. applied the forgoing principles in a similar case.
In Bruno M., the father challenged only that portion of the
restraining order protecting his children and argued they “were
‘never in the line of fire’ ” when he beat the mother. (In re
Bruno M. (2018) 28 Cal.App.5th 990, 992 (Bruno M.).) The father
in Bruno M. abused the mother about three times a month and
was arrested for inflicting corporal injury on a spouse/cohabitant.
(Ibid.) Five-year-old Bruno was scared when his parents fought
and worried about the mother. (Id. at p. 994.) Bruno mimicked
the father’s aggressive tendencies. (Ibid.) The father admitted
his history of violence with mother but emphasized that the
violence occurred before the children were born. (Ibid.)
The Bruno M. court stated that physical harm to the
protected child is not a prerequisite to including the child in a
restraining order; it was sufficient that the father had
“ ‘disturbed the peace’ ” of his children. (Bruno M., supra,
28 Cal.App.5th at p. 997.) Among other things, the court
explained that the juvenile court “could properly consider the
extent and violence of father’s attacks on mother when issuing
4 Father’s initial statement that the law requires “a
showing of past abuse” is not correct. Father misreads In re
Marriage of Davila & Mejia (2018) 29 Cal.App.5th 220, 228,
which states a trial court “may” issue a restraining order upon
proof of past acts of abuse. (Ibid., italics added.) “[W]hile
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.” (Bruno M., supra, 28 Cal.App.5th at p. 997.)
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the order. That is, the juvenile court ‘could reasonably infer,
from the father’s tendency to resort to violence as well as from his
evidence 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.’ [Citations.]” (Id. at p. 998.)
Similar to Bruno M., here substantial evidence supported
including Fernando and Andrew in the restraining order. The
juvenile court could reasonably infer that father was a threat to
the children’s safety and that failure to include the children in
the restraining order may jeopardize their safety. Father
suffered a conviction for abuse of a spouse/cohabitant, admitted
he had an anger problem, and had insight into this problem only
when he was not using controlled substances, but nevertheless
started using controlled substances again during the time period
proximate to the hearing on the restraining order. In addition,
after his relapse, father exhibited erratic and sometimes
threatening behavior towards mother in various locations,
including the children’s home. Father’s threats toward, and
physical abuse of mother were serious, including threats to kill
her, breaking her nose, hitting her with a bat, and a text message
that he would “deal[ ] with her.” Father’s violence toward mother
sometimes occurred in the children’s presence. Although the
children were too young to provide statements regarding their
reactions to father’s conduct, eyewitnesses saw Fernando’s fear of
father and observed Fernando’s aggressive tendencies mimicking
father’s aggression. The juvenile court could reasonably infer
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from father’s above conduct that absent the restraining order,
father jeopardized the children’s safety.
As in Bruno M. here, the evidence also shows that father
disturbed the peace of the children. “In this context, disturbing
the peace means ‘ “conduct that destroys the mental or emotional
calm of the other party.” [Citation.]’ [Citation.]” (Bruno M.,
supra, 28 Cal.App.5th at p. 997.) The children were present
when father handed mother a gun to shoot him. When he was
sober, father recognized that his anger had a deleterious effect on
his children. Yet, after he relapsed, father trespassed around the
house where the children lived and reverted to his impulsive,
abusive conduct.
Father’s contrary arguments are based on reading the
record in the light most favorable to him, not in the light most
favorable to the juvenile court’s order. The children observed
violence father perpetrated on mother, including the incident
precipitating the dependency petition. The fact that, at the time
of those incidents, the children were too young to make a
meaningful statement is not equivalent to the absence of any
harm, but instead shows a greater need to protect the children.
Although father correctly points out that Fernando and Andrew
did not observe father’s most recent harassing behavior that the
juvenile described was akin to stalking the family home, father’s
prior inability to control his conduct in front of the children
supported the juvenile court’s order that the children needed
protection from him.
Father’s reliance on cases in which there was “no evidence
that [the child’s] safety might be in jeopardy absent [the child’s]
inclusion in the restraining order” is misplaced. (See In re N.L.,
supra, 236 Cal.App.4th at p. 1468; In re C.Q., supra,
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219 Cal.App.4th at p. 364.) Here, as summarized above, there
was evidence that the children’s safety was in jeopardy absent
inclusion in the restraining order and evidence that father
disturbed the peace of the children. At the time the court issued
the restraining order, father’s conduct warranted protecting his
children.
DISPOSITION
The restraining order is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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