In re Ivan R. CA2/1 ( 2024 )

Filed 5/31/24 In re Ivan R. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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 IVAN R., a Person Coming B323647
Under the Juvenile Court Law.
_________________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 22CCJP02792)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
I.R.,
Defendant and Appellant;
C.F.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los Angeles
County, Charles Q. Clay III, Judge. Affirmed.
Emery El Habiby, under appointment by the Court of Appeal,
for Defendant and Appellant I.R.
Jesse Frederic Rodriguez, under appointment by the Court of
Appeal, for Defendant and Respondent C.F.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant
County Counsel, and Sarah Vesecky, Deputy County Counsel, for
Plaintiff and Respondent.
____________________________________________
In this juvenile dependency proceeding, I.R. (Father) appealed
from: (1) an order denying Father’s request for a restraining order
against C.F. (Mother); (2) an order granting Mother’s request
for a restraining order against Father; and (3) dispositional
orders concerning Father and Mother’s son, Ivan R. Father also
challenges the sufficiency of the evidence supporting the court’s
jurisdictional finding. We conclude that the court did not abuse
its discretion in ruling on the respective requests for restraining
orders, and Father’s challenges to the dispositional orders are moot
because a subsequent custody order incorporating the dispositional
orders is final. Although Father acknowledges that we need not
consider his challenge to the jurisdictional finding because
jurisdiction based on Mother’s conduct is unchallenged, he requests
that we exercise our discretion and review the finding as to him.
We decline to do so because Father has failed to support his request
that we exercise such discretion. Accordingly, we affirm the orders.
FACTUAL AND PROCEDURAL HISTORY
A. Background
In June 2022, Father was living in an apartment with Ivan’s
paternal grandparents, a paternal aunt, and the paternal aunt’s
four children. Ivan was 1 year 8 months old. At that time, Mother
and Father had an informal custody arrangement whereby Ivan
lived with Father and the paternal grandparents during the week
and with Mother on the weekends. According to Mother, she had
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been picking up Ivan “every weekend and sometimes during the
week with no issues.”
On June 30, 2022, a court granted the paternal grandparents’
temporary guardianship of Ivan. The guardianship order was made
without notice to Mother and, DCFS later concluded, based on the
paternal grandmother’s false statements about Mother. At about
6:30 p.m., Mother arrived at the house to pick up Ivan. Witnesses
gave different accounts of the altercation that ensued.
According to Mother, Father called her to have her pick up
Ivan. Mother, who was unaware of the grandparents’ guardianship
order, claims it “was a set up.” When she arrived, Father and
Mother initially talked in an alley outside the home. Father
told Mother that she could not take Ivan because the paternal
grandfather did not want her to take him. Mother approached the
open front door to the residence and could see Ivan walking towards
her saying, “mom, mom.” The paternal grandfather started to
close the door on Mother, and Mother pushed the door open to
get to Ivan. The paternal grandmother then grabbed Ivan by the
arm and took him into a bedroom. Mother grabbed the paternal
grandmother’s arm “to get her son.” (Boldface omitted.) The
paternal aunt then grabbed Mother by her hair and pushed her
and hit her. Mother “hit them back.” Father told Mother, “You’re
not going to hit my mom, bitch.” Father put Mother in a headlock,
grabbed her throat, and pinned her against the wall. He choked
her for two or three seconds until the paternal aunt told him to
stop. Mother then left the residence. Mother told the social worker
that she knew hitting the others was not right, but explained that
she was defending herself.
According to Father, Mother arrived at the home “uninvited
and began banging on the door.” Father spoke with Mother in an
alley outside the home. Mother asked to see Ivan, but Father told
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her Ivan was sleeping and Mother could not see him “right now.”
Father told Mother she could “return the next day when she was
not so upset.” The paternal aunt approached them and told Mother
to leave. Mother, however, went to the front door, where she and
the paternal aunt began fighting. When the paternal grandfather
opened the door slightly, Mother pushed the door and forced
her way inside. Mother and the paternal aunt continued to fight.
Father said he tried to separate them by grabbing Mother from
behind. He denied striking Mother, grabbing her by the neck,
or placing her in a chokehold. He also blocked the door to the
bedroom, where the paternal grandmother had taken Ivan, to
prevent Mother from entering. Mother hit Father in the back
and three times in the face with a closed fist. The paternal
grandmother’s arms “got scratched” when she tried to defend
Father against Mother’s punches.
According to the paternal grandmother, Mother came to the
house, “broke down” the doors, and “began attacking [the] paternal
aunt” and Father. While the paternal grandmother held Ivan,
Mother tried “to rip him away.” The paternal grandmother saw
Mother hit Father, and did not see Father or the paternal aunt
hit Mother. The children in the home “were crying because they
witnessed everything.” (Boldface omitted.)
The paternal grandmother further stated that Father
comes to the house to sleep, but “is hardly [there].” He
“does not buy diapers or anything for Ivan.” Although Father
“loves [Ivan,] . . . he has never taken full responsibility for him.
[The parental grandparents] are the ones that have raised Ivan.”
The paternal grandfather told a social worker that Mother
“came barging into the house,” punched him, and “attacked [the]
paternal aunt and [F]ather.” She also “injured [the] paternal
grandmother’s arm.”
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Sheriff ’s deputies responded to the scene. The paternal aunt
told a deputy that Mother tried to force her way into the residence
and punched the paternal aunt in the face about three times and
pulled her hair.
The day after the incident, Mother filed a police report
regarding the June 30 incident. Mother told deputies that after
she pushed the door open, the paternal aunt grabbed Mother’s hair
and punched and scratched her. She reported that Father pushed
her up against a wall with both hands around her throat for two to
three seconds, until the paternal aunt told him to stop and pushed
Father away. The deputy noted redness around Mother’s eye and
left cheek, abrasions on her right and left upper chest area, and
bruising to her triceps and elbow.
On July 15, 2022, the court issued a protective custody
warrant authorizing DCFS to remove Ivan from the paternal
grandparents. A social worker transported Ivan from the paternal
grandparents’ home to Mother’s home, where Mother lived with her
eight-year-old daughter J.C.
On July 19, 2022, DCFS filed a petition under Welfare and
Institutions Code section 300, subdivision (b)(1), alleging the
following. On June 30, 2022, Mother, Father, the paternal aunt,
and the paternal grandmother “engaged in a verbal and physical
alter[c]ation in the presence of the child.” When Mother attempted
to force her way into the home, the paternal aunt attempted to
block the doorway. The paternal aunt and Mother struck and
scratched each other and pulled each other’s hair. Mother forcefully
entered the home and grabbed the paternal grandmother’s arm to
get Ivan. The paternal aunt grabbed Mother’s hair and Mother
pushed the paternal aunt. The paternal grandmother grabbed
Mother’s arm and Mother pulled the paternal grandmother’s arm.
When Father intervened, Mother struck Father’s face. Father put
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Mother in a headlock, grabbed Mother by the throat, and pinned
Mother against the wall. The paternal aunt pushed Father away.
Ivan was crying during the altercation. Mother sustained soreness
to her face and head, redness around her eye and left cheek,
abrasions on her chest area, and bruises to her triceps and elbow.
The paternal aunt sustained pain to her head and redness and
blood around her nostrils, cheeks, forehead, and forearm. The
paternal grandmother sustained abrasions to her arms. The
“detrimental and endangering situation established for the child
by . . . [M]other and [F]ather endangers [Ivan’s] physical health and
safety, and places [him] at risk of serious physical harm, damage
and danger.”
In DCFS’s detention report, a social worker reported that,
in addition to the June 30 incident, there were two prior incidents
of domestic violence allegations involving Mother and Father,
including an incident in 2017 resulting in Father’s arrest “for
domestic violence.” The social worker further stated that Father’s
“anger issues put the child at risk of serious physical harm.”
According to the social worker, the paternal grandparents had
“inappropriately obtained temporary guardianship” of Ivan and
denied Mother visitation of Ivan. “Moreover, assaulting . . .
[M]other in front of the child, not allowing visitation and making
misleading allegations puts the child at risk of suffering emotional
damage.”
On August 2, 2022, the date of the detention hearing,
Father and Mother filed requests for restraining orders against
the other under the Domestic Violence Prevention Act (the DVPA).
(Fam. Code, § 6200 et seq.) Father’s application alleged that
on June 30, 2022, Mother went to Father’s home “with a very
aggressive attitude” and “[f]orcefuly entered the home of [the]
paternal grandparents and got into a physical altercation with
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[the] paternal aunt.” (Capitalization omitted.) Mother “injured
[the] paternal grandmother . . . and [the paternal aunt].” Father
blocked Mother “from entering the bedroom where [Ivan] was,” and
“Mother struck [F]ather in the back and on his face multiple times.”
Mother alleged that on June 30, 2022, Father told Mother
that he would not release Ivan to her care. Mother heard Ivan cry.
Mother then “opened the door and was immediately assaulted by
[the paternal aunt]. Father then pushed Mother and held [M]other
by her neck for about 2–3 seconds [as the] . . . paternal aunt . . .
punched [M]other in the face with a close[d] fist.” (Capitalization
omitted.) Mother “sustained scratches/ redness on her chest area
under her neck and face as well as visible bruising on her right
bicep[s]/tricep[s] area, and skin scratched off on her upper left
cheek.” Mother further alleged that “Father has a history of
domestic violence against [M]other where he also pushed [M]other,
broke her phone, and . . . was subsequently arrested.”
At the conclusion of the detention hearing, the court detained
Ivan and ordered him released to the home of Mother under DCFS
supervision. The court ordered monitored visits by Father.
Regarding the parents’ requests for restraining orders,
the court granted temporary restraining orders in both cases and
set a hearing on the requests for September 13, 2022. Among
other restraints, the temporary restraining orders precluded the
parties from contacting the other by telephone. The court set the
jurisdiction hearing on the dependency petition for the same date.
B. Jurisdiction, Disposition, and Restraining Orders
In DCFS’s jurisdiction/disposition report, a social worker
reported that, in addition to the June 30, 2022 incident, law
enforcement service logs showed that Mother had called police
on December 14, 2021 to report that Father had taken Ivan, and
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on May 8, 2022, to report that the paternal grandparents were
refusing to return Ivan to her. Mother told the social worker that
Father previously committed domestic violence against her when
he accused her of cheating on him, broke her phone, and pushed
her. After Ivan’s first birthday, the paternal grandmother asked
Mother to give Ivan to her and began telling Mother that Ivan
cannot go home with Mother. The paternal grandmother eventually
obtained a temporary custody order based on false statements that
Ivan was in danger in Mother’s custody.
Father reported that Mother frequently got angry and had
thrown pliers at him, grabbed his shirt, broke a car window with
a video game console, and hit a female friend with whom he was
playing bingo.
At the jurisdiction hearing, DCFS submitted on the evidence
of its previously submitted reports, which we have summarized
above. No other evidence was introduced.
The court found the facts as alleged in the petition to be true
and sustained the petition. The court stated that it did not believe
that Mother “was a primary aggressor in the sense that she was
intending to harm anyone there so much as she wanted to recover
her child from persons who were equally determined not to
surrender the child.” “Father was a part of . . . an . . . agreement
to keep the child away from [Mother] and to keep her out of the
residence.” The court further found that Father’s assertion that he
“only attempted to intervene” to stop Mother “from continuing her
aggression against [the paternal grandmother and the paternal
aunt] is not credible.”
The court declared Ivan to be a dependent of the court,
removed him from Father’s custody, maintained him in Mother’s
custody, and ordered services for the parents. The court ordered
Father have monitored visits with Ivan.
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After the conclusion of the jurisdiction and disposition
hearing, the court held a hearing on Father’s and Mother’s
respective requests for restraining orders. Father testified that
Mother called him on September 4 in violation of the temporary
restraining order to tell him that their son was sick and to ask
Father for money. Father believed Mother had called his phone
on other occasions, but he did not answer the calls. No other
evidence was offered.
The court denied Father’s request for a restraining order.
The court noted that Mother made her telephone call to Father to
ask for money, not “for any purpose of harassment.” It was thus an
“essentially technical” violation of the temporary restraining order.
More importantly, the court reiterated that it “[did] not find that
Mother was a primary aggressor at the initial incident.” Because
there was an insufficient factual basis for the temporary restraining
order, the court explained, Mother’s telephone call in violation
of that order was insufficient to support Father’s request for a
restraining order.
The court granted Mother’s request for a restraining order
without comment.
On September 13, 2022, Father appealed from the
dispositional orders, the order denying his request for a restraining
order, and the order granting Mother’s request for a restraining
order.
C. Six-Month Review Hearing
On April 17, 2023, the court conducted a six-month
review hearing pursuant to Welfare and Institutions Code
section 364. The court ordered that Mother is to have sole legal
and sole physical custody of Ivan, and Father is to have twice-
weekly monitored visitation pending completion of a domestic
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violence program and a developmentally appropriate parent
instruction program. The court then terminated its jurisdiction,
and stayed the order pending the receipt of a juvenile custody order.
On April 24, 2023, the court entered the juvenile custody
order awarding legal and physical custody to Mother, and providing
for Father to have monitored visits twice per week, two hours per
visit. The court then lifted the stay on its termination order, and
terminated juvenile court jurisdiction over Ivan.
Father appealed from the custody order. We assigned case
No. B328886 to the appeal. His appellate counsel filed a brief
in that case pursuant to In re Phoenix H. (2009) 47 Cal.4th 835.
We dismissed the appeal on December 29, 2023, and issued the
remittitur on March 12, 2024.1
DISCUSSION
A. Restraining Order Rulings
Father argues that the court erred in granting Mother’s
request for a restraining order against him and denying his request
for a restraining order protecting him from Mother. We review
both rulings for an abuse of the court’s discretion. (Abdelqader v.
Abraham (2022) 76 Cal.App.5th 186, 195; In re Marriage of
Nadkarni (2009) 173 Cal.App.4th 1483, 1495.) “ ‘[T]o the extent
we are called upon to review the court’s factual findings, we apply
the substantial evidence standard of review.’ ” (Salmon v. Salmon
(2022) 85 Cal.App.5th 1047, 1054.) We presume the court’s orders
are correct, and the appellant has the burden to affirmatively
demonstrate error. (In re Marriage of Martindale & Ochoa (2018)
1 On our own motion, we take judicial notice of the dismissal
of the appeal and issuance of the remittitur in case No. B328886.
(Evid. Code, §§ 452, subd. (d), 459.)
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30 Cal.App.5th 54, 59.) We resolve conflicts in the evidence in
favor of the challenged order and draw all reasonable inferences
in support of the court’s findings. (Id. at p. 61.)
1. The Granting of Mother’s Request for
a Restraining Order
Father contends that the court abused its discretion in
granting Mother’s request for a restraining order because he
did not commit any act of abuse within the meaning of the DVPA.
We disagree.
A court may issue a restraining order under the DVPA
“to restrain any person for the purpose specified in [Family
Code] [s]ection 6220, if an affidavit or testimony . . . shows, to
the satisfaction of the court, reasonable proof of a past act or acts
of abuse. The court may issue an order under this part based
solely on the affidavit or testimony of the person requesting the
restraining order.” (Fam. Code, § 6300, subd. (a).) The purpose
specified in Family Code section 6220 “is to prevent acts of domestic
violence, abuse, and sexual abuse and to provide for a separation of
the persons involved in the domestic violence for a period sufficient
to enable these persons to seek a resolution of the causes of the
violence.”
An act of abuse under the DVPA includes “intentionally
or recklessly caus[ing] or attempt[ing] to cause bodily injury”
(Fam. Code, § 6203, subd. (a)(1)), and placing “a person in
reasonable apprehension of imminent serious bodily injury to
that person” (id., § 6203, subd. (a)(3)). Abuse also included “any
behavior that has been or could be enjoined pursuant to [Family
Code] [s]ection 6320.” (Id., § 6203, subd. (a)(4).) Family Code
section 6320 authorizes an order enjoining a party from, among
other activity, attacking, striking, and battering another. (Id.,
§ 6320, subd. (a).)
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Here, in support of her request for a restraining order,
Mother alleged that Father: “assaulted or attempted to assault”
Mother; “caused, threatened, or attempted bodily injury” on her;
and caused Mother “to fear physical or emotional harm.” More
particularly, Mother stated that Father “pushed Mother and held
[M]other by her neck for about 2–3 seconds and during this time,
[the] paternal aunt . . . punched [M]other in the face with a close[d]
fist.” (Capitalization omitted.) These statements, made under
penalty of perjury, are sufficient to support the court’s finding that
Father committed abuse against Mother within the meaning of the
DVPA.
Father argues that he did not commit any act of abuse
and points to his and the paternal grandmother’s statements to
the social worker whereby they “adamantly denied” that “[F]ather
grabbed . . . [M]other by the neck, placed her in a chokehold, or
struck . . . [M]other at any point.” The court, however, “did not
find” Father’s statements regarding the altercation with Mother
to be credible, and implicitly rejected the paternal grandmother’s
similar accounts of the incident. Under our standard of review, “we
are required to defer to the court’s credibility determinations and
make all reasonable inferences in support of the court’s findings.”
(In re Marriage of Martindale & Ochoa, supra, 30 Cal.App.5th
at p. 61.) In light of such deference and the reasonable inference
from the record that the court, as a factfinder, believed Mother’s
conflicting account of the incident, the court did not abuse its
discretion in granting Mother’s request for a restraining order.
2. Denial of Father’s Request for a
Restraining Order Against Mother
Father next contends that the court erred in denying
his request for a restraining order protecting him from Mother.
He argues that Mother committed abuse against him by punching
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him in the back and face multiple times during the June 30 incident
and calling him on the telephone in violation of the temporary
restraining order. In denying Father’s request, the court reiterated
that it did not find Father’s statements credible and concluded that
Father’s allegations “were not supported by the facts.” Father thus
failed to prove his entitlement to a restraining order.
Mother did admit to hitting Father during the July 30
incident. The court explained, however, that she was not the
“primary aggressor.” Although there is no requirement in the
DVPA that a person requesting a restraining order prove that
the person to be restrained was a primary aggressor, we can infer
from the court’s statements that it believed that Mother was
reacting to the aggression of others who were acting in concert
to keep Mother from taking her child home. By the time of the
hearing on the request for the restraining order, however, Ivan
was living with Mother. The court was thus aware that the
circumstances that triggered Mother’s aggression would not likely
reoccur and, therefore, reasonably concluded that a restraining
order against her was not necessary. (See Fam. Code, § 6220 [the
purpose of the DVPA “is to prevent acts of domestic violence [or]
abuse”].)
Father further points to the fact that Mother called him
to ask for money while a temporary restraining order was in
place prohibiting telephone calls between them. The court found,
however, that the call was not for the purpose of harassment,
and Father does not cite to any authority that would compel the
granting of a permanent restraining order for such a violation.
The court, we conclude, did not abuse its discretion in denying
a restraining order on that basis.
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B. Father’s Other Arguments Are Moot
Father contends: (1) The evidence was insufficient to support
the court’s jurisdictional findings; (2) The evidence was insufficient
to support the court’s order removing Ivan from Father; (3) The
court abused its discretion in ordering enhancement services for
Father; (4) The court abused its discretion in making dispositional
orders concerning removal, visitation, and Father’s services and
case plan; and (5) The court abused its discretion in ordering that
his visits be monitored.
With respect to the jurisdictional findings, Father
acknowledges that we can affirm the court’s jurisdiction over
Ivan based on the allegations of Mother’s conduct, which Mother
does not challenge. As he contends, however, we may “exercise our
discretion and reach the merits of a challenge to any jurisdictional
finding when the finding (1) serves as the basis for dispositional
orders that are also challenged on appeal [citation]; (2) could be
prejudicial to the appellant or could potentially impact the current
or future dependency proceedings [citations]; or (3) ‘could have
other consequences for [the appellant], beyond jurisdiction.’ ”
(In re Drake M. (2012) 211 Cal.App.4th 754, 762–763.)
He contends that review of the jurisdictional finding is proper
because the finding provided the basis for the court’s dispositional
orders. We reject this contention because the court’s dispositional
orders in this case are no longer subject to appellate review.
After Father filed his opening brief, DCFS requested, and
we granted, judicial notice of the juvenile court’s order terminating
its jurisdiction and the entry of the court’s custody order, which
includes the custody, placement, visitation, and case plan elements
that Father challenges in this appeal. As noted above, although
Father appealed from the juvenile custody order, we dismissed that
appeal pursuant to Phoenix H., and our remittitur has issued. As
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a result, the matters established in the custody order have been
finally adjudicated and we have no power to reverse them. As we
explained in In re S.G. (2021) 71 Cal.App.5th 654, when a juvenile
court’s exit order “provide[s] the juvenile court’s last word on
custody and visitation,” “reversing an earlier order on custody
and/or visitation could not deliver the desired relief—namely, a
change in custody and/or visitation. Even after such reversal, the
more recent custody and visitation terms contained in the exit order
would govern. To effect an actual change in custody and visitation
rights, the appellate court would need to reverse the juvenile court’s
last word on custody and/or visitation—the exit order terminating
jurisdiction on those terms—which . . . the appellate court does not
have the power to do if that order has not been appealed.” (Id.
at pp. 666–667.) The same reasoning applies when, as here, the
custody order was appealed and then dismissed.2
Because we can grant no effective relief as to the
dispositional orders that Father challenges, his argument that
we should review the jurisdictional finding because the finding
underpins the challenged dispositional orders is without merit.
If the dispositional orders are effectively beyond appellate review
in light of the finality of the custody order, the reversal of a
jurisdictional finding would still not produce the desired relief.
Father further asserts that the court’s jurisdictional finding
“could potentially impact the current or future dependency
proceedings or could have other consequences for . . . [F]ather
beyond jurisdiction, particularly in his ongoing child custody
2 In its respondent’s brief, DCFS contends that Father’s
arguments concerning the dispositional orders are moot based on
the finality of the juvenile court’s custody order. Father did not file
a reply brief or otherwise respond to these contentions.
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dispute with [M]other.” Although this can be a valid basis for
discretionary appellate review (see In re D.P. (2023) 14 Cal.5th
266, 285), Father makes only this single speculative assertion
without explanation or citation to the record or apposite authority.
Accordingly, we decline to exercise our discretion to review the
challenged finding.
DISPOSITION
The orders from which Father has appealed are affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
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