In re L.C. CA2/5

Filed 4/24/23 In re L.C. CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re L.C., a Person Coming B316583
Under Juvenile Court Law.
_______________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. No. 21CCJP04164)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
J.C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Jean M. Nelson, Judge. Affirmed.
Jesse McGowan for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy,
Assistant County Counsel, and Tracey Dodds, Principal Deputy
County Counsel, for Plaintiff and Respondent.
_____________________________
Father appeals from the juvenile court’s issuance of a
three-year permanent restraining order pursuant to Welfare and
Institutions Code section 213.5, subdivision (a), protecting both
mother and daughter from father. He argues substantial
evidence does not support naming daughter as a protected
person.1 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The family consists of mother, father, and daughter (born
2021). Father is estranged from his two older children, who live
in Oklahoma and are not at issue in this case. The family was
brought to the attention of the Los Angeles County Department
of Children and Family Services (DCFS) due to a domestic
dispute.
1. Domestic Violence Between the Parents
On August 1, 2021, while at a social gathering, father
became upset and berated mother. Both parents had been
drinking alcohol. On the way home, father ordered mother out of
the car and drove off, leaving mother stranded. Mother then
contacted a friend, who picked her up and drove her home.
Father arrived first to their apartment that night and
began arguing with maternal grandmother, who was babysitting
then-two-week-old daughter. Father yelled at maternal
grandmother to leave the residence, and he called the police.
After mother arrived home, the police responded to father’s call
and instructed everyone to calm down.
After the police left, mother entered the bedroom to check
on daughter. As mother reached to pick up daughter, father
1 All subsequent statutory references are to the Welfare and
Institutions Code, unless indicated otherwise.
2
grabbed mother by her arm and flung her towards the bed.
Daughter was not yet in mother’s arms during the physical
altercation. Mother fought father off but was unsure if he hit
her. Mother’s family members, who were in the home, rushed to
her aid and found father’s ring stuck in mother’s hair. One of the
family members restrained father while police were again
contacted. Officers found two loaded firearms belonging to father
inside the bedroom where the altercation took place: one on top
of a chair and the other inside a closet. Police arrested father for
battery and temporarily took possession of father’s two firearms.
Two days after the incident, father admitted to DCFS that
“everything in the police report is true” but was reluctant to
provide the social worker any details. Father denied all
substance use and stated he had not had any alcohol or drugs
during the incident with mother and her family. Father denied
threatening or physically engaging with anyone. He said that he
was attempting to talk to mother privately in the bedroom and
mother just started yelling and screaming. Father stated that
his ring became entangled in mother’s hair but he was uncertain
how that happened.
On August 9, 2021, when interviewed a week after the
incident, mother showed DCFS that she had obtained a
temporary restraining order from the family law court protecting
both her and daughter from father.2 Mother told DCFS that
2 Mother had secured the temporary protective order from
the family law court earlier that day. In her restraining order
application, mother alleged that father slammed a bedroom door
against her leg, resulting in a scrape to her right knee. Mother
stated she did not feel safe because father legally owned two
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father’s behavior had become increasingly unpredictable, making
her uncomfortable and fearful for her safety. Mother showed the
social worker several videos depicting father locking mother out
of the bedroom to keep her from infant daughter for long
stretches of time, removing mother’s bed covers so she could not
sleep, pulling mother’s leg, and demanding she get up to engage
in an argument. Mother felt threatened when father made
unprovoked comments like, “if we cannot be together with the
baby, then neither of us are going to have the baby,” and “I will
make sure the baby is taken away and put in foster care.”
DCFS also interviewed a family friend, who reported that
during verbal exchanges with others, father made “veiled
threats” about using a gun to protect himself. For example, while
motioning to his waistband, father stated to others: “if that’s how
you really feel about it, then run up on me, I bet you I’ll protect
myself. I got my piece and I will use it. You’re in my house and I
will protect myself.”
2. Section 300 Petition and Detention Hearing
On September 7, 2021, DCFS filed a section 300 petition on
behalf of daughter, alleging that the parents had a history of
domestic violence, and that there were two recent incidents in
which father was the aggressor. DCFS also alleged that father
abused marijuana, and negligently left two loaded firearms
within access of the child.
The next day, mother filed a second restraining order
application – this time with the juvenile court – again listing
guns. However, mother did not aver the existence of other
incidents of violence or conflict. On September 2, 2021, the
family law court dismissed the application for lack of sufficient
evidence.
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herself and daughter as protected persons. In addition to the
August 1, 2021 incident we have described, mother alleged that
there was another incident on August 8, 2021, where father
pushed and locked mother out of the bedroom.
On September 9, 2021, the juvenile court detained
daughter from father, kept physical custody with mother, and
issued a temporary restraining order protecting both daughter
and mother from father. The juvenile court scheduled a hearing
on jurisdiction, and on whether a permanent restraining order
should issue.
3. Subsequent Investigation
In addition to confirming her prior statements regarding
the August 1, 2021 incident, mother told the social worker that
father had been verbally and emotionally abusive for a long time
prior to the physical abuse. For example, father called her
“ ‘pathetic, lame and a “ ‘hoe’ ” and told her she was “ ‘broke and
dirty.’ ” Mother indicated that as the family suffered financially
during the pandemic, father became more and more aggressive.
Mother reported to DCFS that father had threatened her
and some of her relatives’ boyfriends with guns in the past.
Mother stated that about a year earlier, father stood over mother
and choked her while she was sitting on the couch because she
had confronted him about cheating. Mother tried to get up from
the couch and leave, but father forced her back down and grabbed
her by the neck.
Mother described another incident that occurred on
August 6, 2021. On that date, while mother held daughter in her
arms, father grabbed her by the leg. When mother tried to kick
father off, father attempted to get on top of mother while she was
holding daughter in her right arm. Mother threw daughter onto
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the bed to protect herself as father swung at her. Daughter was
not injured during this incident.
Father denied the domestic violence. He possessed two
guns and insisted he kept them in a closet that was inaccessible
to daughter. Father denied mother’s claim that father carried a
revolver on his person at all times.
4. Jurisdiction and Disposition Hearing
The section 300 hearing took place on November 10, 2021.
The court admitted the jurisdiction/disposition report, the
detention report with attachments, and DCFS’s exhibits. The
court also admitted into evidence father’s exhibits: a
September 2, 2021 family court minute order showing the
dismissal of mother’s first protective order petition for
insufficient evidence, a bail bond receipt showing mother paid
father’s bail, a parenting class progress letter, proof of enrollment
in a domestic violence course, and a document showing
completion of a parenting program.
Mother and maternal grandmother did not testify; counsel
relied on the facts in the DCFS report that had been admitted.
Father testified that on August 1, 2021, he and mother went out
with friends and he got into an argument with mother about
money. Mother was upset that father confronted mother’s cousin
when he did not pay for his portion of the food. At the end of the
evening when they dropped off a friend, mother, still crying,
voluntarily left the car father was driving. He then drove home
and told the maternal grandmother, who was babysitting, that
she could leave. Because the maternal grandmother refused to
leave, father called law enforcement. Next, police officers,
mother, and other family members arrived home. The maternal
family informed law enforcement that father had a gun on his
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person. When law enforcement searched father, no gun was
found.
Father testified that after police left, he put daughter down
to sleep. Mother then went to pick her up, saying she is leaving.
Father stated he attempted to stop mother, and his ring became
caught in mother’s wig. At that point, mother’s sister and her
cousin’s boyfriend joined in a physical altercation with father.
The police returned and arrested father. Five hours later, mother
bailed father out of jail.
Father also testified about the August 8, 2021 incident. He
stated that on that day, the parents were still cohabitating and
mother returned home under the influence at 1:00 a.m. Father
explained he locked the door to their room, and mother tried to
break down the door to enter. In doing so, mother skinned her
knee. Mother left, and later had father served with a restraining
order.
Father denied that he was ever under the influence while
supervising daughter. Father testified he owned two registered
guns that he kept in a cabinet or on the dresser. However, he
intended to keep the guns in a safe in the future.
The juvenile court heard closing arguments, and then
sustained the domestic violence allegations, stating that it did
not find father credible. The juvenile court proceeded to
disposition, admitting all exhibits that had been offered. Father
submitted on removal of daughter from his care.
The court declared daughter a dependent of the juvenile
court, removed her from father’s custody, and placed her with
mother. The court ordered father to attend a domestic violence
program, engage in individual counseling, and participate in drug
testing. The court granted father monitored visitation two to
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three times per week for two to three hours at a time, with a
DCFS-approved monitor.
Father’s counsel asked the juvenile court to deny mother’s
request for the restraining order. He argued that father had not
harassed or stalked mother, the family court denied mother’s
first request for a restraining order, and there had been no new
violence since the family court’s order. The juvenile court pointed
out that it did not have the facts that were before the family court
or know why the family court denied mother’s first restraining
order. The court highlighted that, since that denial, DCFS had
gathered a lot more evidence in support of the restraining order
that the family court did not have before it. The juvenile court
concluded substantial evidence supported the petition and took
judicial notice of the sustained domestic violence allegations,
which included the fact father possessed firearms and had
threatened people with them.
The restraining order required father to stay 100 yards
away from mother and daughter (except for court ordered
visitation), their home, vehicle, job, school, and childcare facility.
The order allowed father monitored visitation with daughter, and
permitted DCFS to liberalize father’s visits. The order also
prohibited father from owning or possessing firearms.
Father appeals.
DISCUSSION
Father does not challenge the court’s findings that he
perpetrated domestic violence against mother in daughter’s
presence or the issuance of the order restraining him from
contacting or being near mother. Father disputes only the order’s
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inclusion of daughter as a protected person, and we limit our
discussion to that issue. 3
1. Applicable Law
Pursuant to section 213.5, subdivision (a), the juvenile
court may issue an order “enjoining a person from molesting,
attacking, striking, stalking, threatening, sexually assaulting,
battering, harassing, telephoning, . . . destroying the personal
property, contacting, . . . or disturbing the peace of the child[.]”
The statute “also permits the court to issue orders including the
child’s parent as a person protected from the behaviors listed
above and excluding the restrained person from the child’s
home.” (In re C.Q. (2013) 219 Cal.App.4th 355, 363 (C.Q.).)
“Monitored visitation of a child is not incompatible with a
restraining order.” (In re N.L. (2015) 236 Cal.App.4th 1460, 1466
(N.L.).)
“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 child.’ [Citation.] Nor does it require evidence of a
reasonable apprehension of future abuse.” (C.Q., supra,
219 Cal.App.4th at p. 363.) The court may identify a child as
protected person where the “evidence indicate[s] the children’s
3 In the Statement of Appealability section of his opening
brief, father states, “On November 22, 2021, Jeffrey C. (“father”)
filed a notice of appeal from the hearing held November 11, 2021,
at which the the (sic) juvenile court removed [daughter] from his
care and issued a permanent restraining order. [Citation.] On
his notice of appeal, father indicated his intent to challenge the
restraining order (among other orders).” Father’s opening brief
addresses only the restraining order as it pertains to daughter.
He filed no reply brief.
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safety might be in jeopardy absent their inclusion in the . . .
order. [Citation.]” (Id. at p. 364.)
“In reviewing the issuance of a restraining order under
[section 213.5], ‘we view the evidence in a light most favorable to
the respondent, and indulge all legitimate and reasonable
inferences to uphold the juvenile court’s determination. If there
is substantial evidence supporting the order, the court’s issuance
of the restraining order may not be disturbed.’ [Citations.]” (In re
Bruno M. (2018) 28 Cal.App.5th 990, 996–997, fn. omitted (Bruno
M.).)
2. Substantial Evidence Supports the Restraining Order
Father contends no reasonable or credible evidence showed
daughter’s safety would be jeopardized absent her inclusion in
the restraining order since father’s violent behavior was never
directed towards daughter. We disagree with this
characterization of the record.
Daughter was repeatedly exposed to father’s violence, was
in harm’s way during at least two incidents, and was used by
father to exercise power over mother. On August 1, 2021, when
mother reached to pick daughter up out of her crib, father
grabbed mother by the arm, and threw her on the bed. He did
this all while a loaded firearm sat unsecured, feet away from the
physical altercation and from sleeping infant daughter.
On August 8, 2021, while mother held daughter, father
grabbed mother’s leg and then tried to get on top of mother.
Mother had to toss daughter onto the bed to defend herself from
father. At minimum, father exhibited a willful disregard for
daughter’s safety during this assault. (See In re B.S. (2009)
172 Cal.App.4th 183, 194.)
10
On another occasion, father locked mother out of the
bedroom where he was with daughter. In other instances, father
expressed that if he could not have daughter, he would make sure
mother could not have her. Father essentially used daughter to
exercise power and control over mother. Based on this evidence,
the juvenile court reasonably concluded daughter’s safety would
likely be in jeopardy without her inclusion in the order.
In asserting the evidence was insufficient, father likens the
present case to C.Q., supra, 219 Cal.App.4th 355. In C.Q., the
mother reported to the police that the father struck her with a
closed fist while their three children (ages 16, 12, and 11 years
old) were present in the home, and that one child witnessed the
incident and intervened in it. (Id. at p. 358.) The mother also
asserted that all three children witnessed the father strike and
bruise her arm a year prior. (Id. at pp. 358–359.) However, in
interviews with DCFS, the children denied knowledge of any
domestic violence. (Id. at p. 359.) The children were not afraid of
their father and wanted visits with him. (Id. at p. 364.) At the
jurisdiction and disposition hearing, the juvenile court issued a
restraining order requiring the father to stay away from the
mother, the children (except during monitored visits), the
children’s school or childcare, and the family home where the
mother resided with the children. (Id. at p. 363.) The Court of
Appeal reversed the part of the restraining order naming the
children as protected persons for lack of evidence indicating the
children’s safety would be jeopardized absent inclusion in the
restraining order. (Id. at pp. 357, 364.)
Father also relies on N.L., supra, 236 Cal.App.4th 1460.
There, DCFS filed a section 300 petition on behalf of a six-year-
old child due to her mother’s drug use and repeated false
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accusations that the father sexually abused the child. (Id. at
p. 1462.) A month after the court declared the child a dependent,
removed her from the mother’s custody, and ordered her to home-
of-parent father, the father sought a restraining order requiring
the mother stay away from the father and the child, their
residence, father’s workplace, father’s vehicle, and the child’s
school. In support of the restraining order, the father described
an incident where the mother had attempted to remove the child
from school. He also stated that the mother had threatened him,
struck him, and pulled his hair. (Id. at p. 1463.) After a
contested hearing, the juvenile court issued the restraining order
and included the child as a protected person. (Id. at p. 1465.)
The mother appealed the portion of the order including the child
as a protected person. (Id. at p. 1467.) The Court of Appeal
reversed, pointing out that per a recent order of the juvenile
court, both parents were the child’s educational rights holders,
and thus the “mother could contact [the child]’s school and seek
to remove [the child] from school.” (Id. at p. 1468.) The Court of
Appeal observed that the mother had never engaged in violent or
dangerous conduct towards the child, nor had any such conduct
occurred in her presence. (Id. at p. 1469.)
For obvious reasons, C.Q. and N.L. are inapt. Unlike the
children in those cases, daughter here was physically near
father’s violent conduct on multiple occasions (once being tossed
on a bed because father tried to get on top of mother). Father
also inhibited mother’s access to daughter during a conflict with
mother. Daughter’s tender age (an infant, not school-age
children as in C.Q. and N.L) makes her particularly vulnerable
and helpless in the presence of father’s violence, lack of self-
control, and manipulation.
12
This case more closely resembles Bruno M., supra,
28 Cal.App.5th 990. There, the father argued insufficient
evidence supported the inclusion of his two children in a section
213.5 restraining order. (Id. at p. 997.) Acknowledging the
children were present during his violence, the father nonetheless
asserted he “ ‘was never aggressive with [them] and [they] were
never in the line of fire’ of his assaults on [the] mother.” (Ibid.)
The Court of Appeal held the restraining order was
supported by substantial evidence that father disturbed the peace
of the children. (Id. at p. 997.) The Court of Appeal observed the
children frequently witnessed the abuse, the five-year-old yelled
at father to stop during one incident, and the two-year-old
covered her ears during another. (Ibid.) The Court explained,
“while the children had not yet been hurt during these
altercations, the court could properly consider the extent and
violence of father’s attacks on mother when issuing the order.
That is, the juvenile court ‘could reasonably infer, from the
father’s tendency to resort to violence as well as from his evident
lack of impulse control, that he might be a threat to [the
children’s] safety. Such a threat could arise, even in the mother’s
absence, if the father got angry with another adult or with [the
children]. Even assuming an opposite inference might be equally
reasonable, we are not authorized to second-guess the juvenile
court on this point.’ ” (Id. at p. 998.)
More egregious than the facts in Bruno, daughter here was
in the “line of fire” during one of father’s attacks. As in Bruno M.,
the record in this case reflects father “ ‘disturbed the peace’ ” of
and endangered daughter by engaging in violent conduct toward
mother in daughter’s presence and by preventing mother’s access
to daughter. (Bruno M., supra, 28 Cal.App.5th at p. 997.)
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Father argues that Bruno misstates the law because the
order protecting the child must be based on more than
disturbance of the child’s mental and emotional peace, and that
“destroying the ‘emotional calm’ of a child does not necessarily
relate to the child’s safety.” Father’s predicate facts are belied by
the record. The evidence was substantial that father did more
than disturb daughter’s mental and emotional peace—father
attacked mother while mother held infant daughter and caused
mother to toss the child on the bed during one incident. Viewing
the evidence in the light most favorable to the respondent, the
juvenile court could reasonably have found that father’s pattern
of conduct would continue in the future (particularly in light of
his expressed intent to deprive mother of the child) and imperil
daughter’s physical well-being.
DISPOSITION
The juvenile court’s order is affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
KIM, J.
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