Filed 11/18/20 In re D.S. CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re D.S. et al., Persons B301269
Coming Under the Juvenile
Court Law. (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No.
DEPARTMENT OF 19CCJP03268A-B)
CHILDREN AND FAMILY
SERVICES,
Plaintiff,
v.
J.S.,
Objector and Appellant,
R.S.,
Defendant and
Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Mary E. Kelly, Judge. Affirmed.
Mitchell Keiter, under appointment by the Court of
Appeal, for Objector and Appellant.
Janette Freeman Cochran, under appointment by the
Court of Appeal, for Defendant and Respondent.
________________________________
J.S. (mother) appeals a three-year restraining order
entered against her under Welfare and Institutions Code
section 213.5.1 Mother does not challenge the portions of the
order requiring her to stay away from Richard S. (father) or
father’s girlfriend. Instead, her sole contention on appeal is
that the juvenile court erred when it included the children,
D.S. (son) and R.S. (daughter), as protected persons under
the restraining order.2 Finding substantial evidence to
support the restraining order, we affirm.
1 All statutory references are to the Welfare and
Institutions Code, unless stated otherwise.
2 After mother filed her opening brief in which she
challenged the court’s decision to include the children as
protected parties in the restraining order, the Department
notified us that because it had taken no position on the
matter below, it would not be filing a respondent’s brief. The
Department reviewed the procedural history and suggested
that because the restraining order had been requested by
father, he would be the appropriate respondent on appeal.
We appointed counsel to represent father, and he filed a
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FACTUAL AND PROCEDURAL BACKGROUND
Facts
Mother and father were married in 2009, and they
divorced in 2015. Son was born in March 2010 and daughter
was born in September 2013.3 Mother and father shared
custody of the children pursuant to a custody order that
prevented mother from permitting contact between the
children and her boyfriend, who was a registered sex
offender with a 2016 conviction for lewd or lascivious acts
with a minor (Pen. Code, § 288, subd. (a)).
On May 8, 2019, the children were at mother’s home,
and father learned that mother’s boyfriend was present.
Father drove his motorcycle to mother’s home, and his
girlfriend followed with a car. When father arrived, he
started filming. Mother’s boyfriend was in his car talking to
mother, and father stated to them that the boyfriend was not
supposed to be within 100 yards of the children, so father
would be taking the children. The boyfriend responded,
“Take the kids. What do we care?” Then mother said,
“You’re going to take the kids? You’re going to take the f—
ing kids? Go take the kids.” Mother ran to Father’s
respondent’s brief. The children are not parties to this
appeal.
Father has one other child, who is the subject of an
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unrelated dependency proceeding in Orange County.
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motorcycle and tried to kick it over, but Father caught it.
Mother then hit father, who was still wearing his motorcycle
helmet, on the head and scratched him on the wrist. The
boyfriend drove away while father waited for mother to bring
the children out of the house. When son came out, he
reported mother had slapped him in the face for not moving
fast enough. The Los Angeles County Department of
Children and Family Services (Department) received a
referral the following day.
A social worker interviewed son and daughter
separately on May 15, 2019, at their school. Son, who was in
third grade, stated he knew why the social worker was there:
because his mother had attacked his father. Son reported
that mother hits him in the face when she is upset and has
also hit him in the past with a remote control. He said
mother calls him a “bitch” when she is cranky or mad, which
happens a lot. When asked about thoughts of self-harm, son
stated he hates himself and wants to die because things
would be better if he was dead because his mother is mean to
him and it makes him upset. Son also reported that mother
would hit daughter, and pull or grab her by the ear. He said
he feels safe with father and father’s girlfriend. Daughter
was in kindergarten in May 2019. When the social worker
explained her role to daughter, daughter stated “Then you
must be here because my mommy hits me all the time.”
Daughter reported mother hits her every day, and that when
daughter tells mother to stop hitting her, mother does not
listen. Daughter also said that mother hits son in the face,
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and did so the other day before the children went to father’s
house. Daughter said mother’s boyfriend comes to mother’s
home and sleeps on the couch. Daughter does not like
mother’s boyfriend hugging her because he squeezes too
hard. Daughter felt safe with father and his girlfriend;
father does not hit her, instead takes things away when she
gets into trouble.
In later interviews in July 2019, son and daughter
confirmed that mother slapped son during the May 8, 2019
incident. Son also said he was scared of mother because she
is mean.
Procedural history
On May 16, 2019, father obtained a temporary
restraining order (TRO) from a family law court protecting
himself, his girlfriend, son, and daughter from mother. The
TRO was valid until a hearing, scheduled for May 31, 2019.
On May 23, 2019, the Department filed a petition
alleging mother placed the children at risk of physical harm,
based on her conduct of striking son and allowing mother’s
boyfriend unlimited access to the children. At the initial
hearing in the juvenile court on May 24, 2019, the court
ordered the children detained from mother, and modified the
TRO to allow mother to have monitored three-hour visits,
three times a week. It also set a May 31, 2019 hearing on
father’s request for a permanent restraining order in the
juvenile court.
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On May 31, 2019, pursuant to a request from father,
the court found good cause to continue the restraining order
hearing to the date of the adjudication hearing, July 17,
2019. On that date, the court continued adjudication, but
heard argument on father’s restraining order request.
Mother argued that a restraining order was not warranted,
given the nature of the May 8, 2019 incident and that the
children were inside the home while the incident occurred
outside. Father argued that a restraining order was still
necessary. Minor’s counsel stated she was not asking for the
restraining order. The Department submitted. The juvenile
court found that the egregious circumstances, including
mother’s outburst on May 8 and her continued involvement
with a registered sex offender, warranted a restraining
order. The court issued a three-year restraining order
against mother, listing father, his girlfriend, and son and
daughter as protected persons. The order included a stay-
away order prohibiting mother from coming within 100
yards of the protected persons, their home, workplaces,
schools, and vehicles; except to facilitate monitored visitation
with the children, three times per week for at least three
hours. Mother filed a notice of appeal from the restraining
order on August 2, 2019.
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DISCUSSION
Mother contends there is no substantial evidence to
support the portion of the restraining order protecting the
children. We disagree.
Relevant law and standard of review
Section 213.5 and rule 5.630 of the California Rules of
Court4 govern issuance of restraining orders in juvenile
proceedings. Under section 213.5, subdivisions (a) and
(d)(1), the juvenile court has exclusive authority to enjoin
any person, including a parent, for a period up to three
years, from “molesting, attacking, striking, stalking,
threatening, sexually assaulting, battering, harassing,
telephoning, including, but not limited to, making annoying
telephone calls as described in Section 653m of the Penal
Code, destroying the personal property, contacting, either
directly or indirectly, by mail or otherwise, coming within a
specified distance of, or disturbing the peace of the
child . . . .” Rule 5.630(a), authorizes the juvenile court to
issue restraining orders as provided in section 213.5 after a
dependency petition has been filed under section 300. Rule
5.630(f)(1) provides at the hearing for a restraining order,
“[p]roof may be by the application and any attachments,
additional declarations or documentary evidence, the
4 All rule references are to the California Rules of
Court.
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contents of the juvenile court file, testimony, or any
combination of these.”
“A restraining order under section 213.5 is reviewed for
an abuse of discretion. The juvenile court’s factual findings
are upheld if they are supported by substantial evidence.
[Citation.] [¶] Under section 213.5, a juvenile court may
issue an order enjoining any person from contacting a child if
such contact would jeopardize the child’s safety.” (In re A.M.
(2019) 37 Cal.App.5th 614, 619.)
Issuance of the restraining order does not require
evidence of previous stalking, attacks, or infliction of
physical harm; nor does it require evidence of a reasonable
apprehension of future physical abuse. It is sufficient to
show that the restrained person “disturb[ed] the peace” of
the protected person. (§ 213.5, subd. (a); In re Bruno M.
(2018) 28 Cal.App.5th 990, 997, quoting Perez v. Torres-
Hernandez (2016) 1 Cal.App.5th 389, 401 [“disturbing the
peace means ‘“conduct that destroys the mental or emotional
calm of the other party”’”].) Evidence a parent has
previously inflicted physical harm on a child is “‘certainly
sufficient,’” on its own, to justify the issuance of a protective
order under section 213.5, subdivision (a). (In re Bruno M.,
supra, 28 Cal.App.5th at p. 997; In re B.S. (2009) 172
Cal.App.4th 183, 193.) Courts have upheld juvenile
dependency restraining orders even when there has been no
violent behavior or threats of violent behavior to the
protected person. Abusing a mother in the presence of
children, for example, even if the children were not
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physically harmed, is sufficient evidence to support a
restraining order. (In re Bruno M., at p. 997; In re B.S., at
p. 194.) Spying on a child, attempting to enter the
caregiver’s home, appearing at the child’s school, threatening
to take the child from the foster home, and otherwise
attempting to gain unauthorized access to a dependent child
constitutes substantial evidence to support the issuance of a
restraining order, even if there has been no physical abuse
or discipline. (See In re Brittany K. (2005) 127 Cal.App.4th
1497, 1512; In re Cassandra B. (2004) 125 Cal.App.4th 199,
212.)
Mother argues that a course of conduct is necessary to
support a restraining order, and that the facts of this case
are more akin to those in In re C.Q. (2013) 219 Cal.App.4th
355 and In re N.L. (2015) 236 Cal.App.4th 1460, where the
appellate court reversed portions of restraining orders
protecting the minor children for lacking sufficient
evidentiary support. First, we find no legal support for
mother’s argument that a restraining order is only
warranted when a parent has engaged in a course of harmful
or impermissible conduct, as opposed to a single incident.
Second, the evidence here includes statements by the
children that support an inference that mother has hit them
on other occasions, in addition to hitting son in connection
with mother’s outburst against father on May 8, 2019.
Lastly, the facts of In re C.Q. and In re N.L. are
distinguishable from the facts of the current case. In In re
C.Q., while there was evidence that the father had been
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violent towards the mother, the three daughters (who were
between ages 11 and 16) acknowledged that their parents
argued, but denied any domestic violence, and in fact
pressured mother not to report father because they wanted
to continue to see father, who would buy them whatever they
wanted. (In re C.Q., at pp. 358–359.) At the hearing on the
restraining order, minor’s counsel reported that minors were
so unhappy with mother for listing them as protected
persons, they were not longer speaking to mother. (Id. at
p. 361, fn. 9.) In In re N.L., the mother had made violent
threats towards the father, but the court noted that there
was “no evidence in the record that mother had engaged in
any violent or dangerous conduct toward, or made any
threats to, N.L.” (In re N.L., at p. 1468.)
Here, there was substantial evidence to support the
court’s decision to include the children as protected persons
in the restraining order. The juvenile court’s order is
certainly supported with sufficient “evidence that [mother]
‘disturbed the peace’ of [son and daughter].” (In re Bruno
M., supra, 28 Cal.App.5th at p. 997.) Both son and daughter
reported hitting or slapping by mother. Son, who was only
nine years old at the time, said mother was often cranky or
mad, and that she would call him a bitch and hit him on the
face. Daughter reported that mother hit her every day; that
mother would not listen when daughter told her to stop; and
that daughter did not feel safe with her mother. On May 8,
2019, mother’s anger resulted in violence directed toward
father, his property, and mother hitting son. We therefore
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find substantial evidence supports the court’s issuance of the
restraining order protecting the children from contact with
mother outside the confines of monitored visitation.
DISPOSITION
The July 17, 2019 restraining order is affirmed.
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.
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