In re W.K.

Filed 1/19/10 In re W.K. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Appellant E. C. and respondent M. K. are the parents of W. K., who has been adjudged a dependent of the court pursuant to Welfare and Institutions Code section 300, subdivision (b).[1] Appellant appeals from an order denying her application for a restraining order against respondent ( 213.5).[2] For the reasons stated below, the order is affirmed.

I. Factual and Procedural Background

On December 4, 2008, the Department filed a juvenile dependency petition alleging that W. K. came within section 300, subdivision (b) (failure to protect). The petition alleged that appellant was not receiving treatment for her mental illness, had recently threatened to kill herself and three-year-old W. K., and had a history of substance abuse. The petition also alleged that respondent had a significant history of perpetrating domestic violence against appellant and violating restraining orders, an extensive criminal record, and a history of substance abuse and mental illness. Shortly thereafter, W. K. was removed from appellants custody and placed with his maternal aunt and uncle.

In the initial report prepared for the jurisdictional and dispositional hearing, the social worker requested a continuance to obtain medical records and police reports. This initial report also summarized some information relevant to the hearing. When W. K. tested positive for opiates at birth, he was placed into protective custody. Appellant subsequently received voluntary services from the Department between April 27, 2005 and March 2, 2006, and between March 17, 2008 and June 20, 2008. Though appellant had been diagnosed with bipolar disorder, depression, anxiety, and borderline personality disorder, she was not receiving treatment. Appellant initially did not deny that she told her mother that she was overwhelmed and intended to kill herself and her son in November 2008. However, she later claimed that her mother suffered from dementia and her statements were not credible. According to appellants parents, appellant can take care of W. K. for periods of no more than two hours.

The social worker also reported that appellant obtained several restraining orders against respondent in family court. In September 2003, the court entered a temporary restraining order against respondent. The court then entered a permanent restraining order in November 2003, which was in effect until September 2006. In October 2005 and January 2006, temporary restraining orders were again entered against respondent. In April 2006, the court entered a permanent restraining order, which was in effect until January 5, 2009. In April 2007, the marriage between appellant and respondent was dissolved, and legal and physical custody was granted to appellant.

Respondent has an extensive criminal history. His misdemeanor convictions include: violating domestic violence court orders (Pen. Code, 273.6, subd. (a)) in March 2007, November 2006, September 2005, and January 2005; willful disobedience of lawful court orders (Pen. Code, 166, subd. (a)(4)) in June 2005 and February 2004; battery on a person (Pen. Code, 242, 243, subd. (e)) in January 2005, October 1999, and June 1993; driving with a suspended license (Veh. Code, 14601.1, subd. (a)) in May 2003; possession of paraphernalia (Health & Saf. Code, 11364) in October 1999 and April 1995; vandalism (Pen. Code, 594, subd. (b)(4)) in July 1994; fighting (Pen. Code, 415.1) in December 1993; battery (Pen. Code, 242) in February 1988; and tampering with a vehicle (Veh. Code, 10852) in November 1986. In September 2005, respondent was also convicted of felony false imprisonment with violence (Pen. Code,  236, 237).

Both parents have substance abuse histories. Appellant reported that she had used acid, quaaludes, amphetamines, cocaine, and methamphetamine, and that her current problem was with cocaine, alcohol, and marijuana. Respondent previously used marijuana, alcohol, cocaine, and heroin. However, he has remained clean and sober since December 5, 1999.

On January 20, 2009, appellant sought a temporary restraining order against respondent. Appellant alleged that respondent pushed her to the ground in July 2008, attempted to take their son to assist a friend in September 2008 in violation of a court order, stated that he would comply with a court order to return a set of chefs knives with a knife in [her] back in October 2008, threatened to burn down her and her sisters houses in November 2008, arrived at her house as soon as she returned in November 2008, and falsely reported their sons absence in November 2008. She also alleged that respondent knocked her to the floor while she was pregnant in December 2004, killed the family cat by stuffing a dime in its throat in December 2004, threatened repeatedly to circumcise their son himself from April 2005 until the present, failed to complete the certified batterers program in August 2006, failed to seek psychiatric care and take medication in August 2006, and failed to return the chefs knives in April 2007.

On February 3, 2009, an updated report for the jurisdictional and dispositional hearing was filed. The social worker recommended that W. K. be adjudged a ward of the court and that both parents receive family reunification services. The social worker interviewed both parents regarding domestic violence. In her view, respondent minimized his role in the various domestic violence incidents. According to respondent, appellant was using methamphetamine during a pregnancy that resulted in a miscarriage. Though appellant accused him of hitting her, respondent stated that he hit his roommate because he believed his roommate had provided appellant with the drugs. Respondent also stated that he pushed appellant out of the way to leave the room. Respondent stated that he and appellant would yell and curse about once a month, and that they argued once a week during a period of six months to one year. Appellant told the social worker that respondent threatened her and her friends with harm, was very controlling, shoved and pushed her, and yelled at her. On one occasion, he choked her. This abuse continued for four to five years.

The social worker also summarized the contents of several police reports. A police report, dated March 19, 2007, stated that there was a restraining order against respondent on behalf of appellant and W. K., but appellant had recently filed for modification of the order to include friendly contact. Respondent took their son to preschool. When respondent returned, he and appellant began arguing. Respondent threatened to put a bullet through appellants boyfriends head, choked her, threatened to kill her, and slapped her. Respondent was later arrested for domestic violence.

A police report stated that there was a no contact restraining order against respondent in November 2006. According to both appellant and respondent, respondent had been staying at appellants house for a few days and refused to leave. Respondent was arrested for violating a restraining order.

A police report stated that respondent and appellant were arguing in September 2005. Respondent slammed the door on her hand, but appellant did not know if he had done so intentionally. Respondent also threatened her and W. K. Though respondent denied hitting or making any threats, he was arrested for making criminal threats and violating a restraining order.

A police report stated that respondent visited appellant in the hospital after their sons birth in April 2005. They began arguing about their sons circumcision. Respondent twisted appellants left wrist. Respondent denied touching appellant. He was later arrested for violation of a peaceful contact restraining order.

A police report stated that appellant and respondent were asleep when their cats began making noise in January 2005. Respondent became angry and began chasing the cat. When appellant tried to intervene, respondent pushed her and she fell. He then broke a basket over the cats back. Respondent was arrested for domestic violence and violation of a restraining order.

The social worker next reported on the parents substance abuse. Respondent had completed a drug and alcohol assessment in January 2009. It was determined that he did not need treatment because he had been sober for approximately nine years. Appellant takes prescribed medication and uses methadone and marijuana on a daily basis. After she completed a drug and alcohol assessment, she was referred to the perinatal substance abuse program for outpatient treatment.

The report also included information on the parents mental health history. Respondent was diagnosed with bipolar disorder in January 2004. In December 2008, respondent told the social worker that he was receiving treatment for depression. However, he currently believes that he was not suffering from depression. Instead, he feels fatigue and anger over his marriage to appellant. According to the social worker, respondent does not believe that he has a history of mental illness. Appellant told the social worker that she does not suffer from mental illness despite the numerous hospitalizations and history of self mutilation. However, appellant believes that she has borderline personality disorder. According to appellants parents, appellant has had mental health issues since preschool and has received psychiatric treatment since that time.

On February 3, 2009, both parents submitted the matter on an amended petition, and W. K. was adjudged a ward of the court. The juvenile court also ordered both parents to receive reunification services, and reissued a temporary restraining order against respondent as to appellant, but not W.K., pending a contested hearing.

On March 3, 2009, the juvenile court held a hearing on the application for a restraining order. At that time, W. K.s counsel and the Department asked that W. K. be included in the restraining order. Appellant was the only witness at the hearing, and she testified regarding various incidents of domestic violence. In December 2004, respondent knocked her to the ground while she was pregnant with W. K. After W. K. was born, respondent threatened several times to circumcise the child himself. On July 4, 2008, respondent pushed her and she fell to the ground. During a telephone conversation in October 2008, respondent told her that the only way he would return a set of chefs knives was with a knife in her back. In November 2008, after appellant told him that he could not see W. K. unless he paid child support, respondent threatened to burn down her house and her sisters house. Respondent also appeared at her door immediately upon her arrival at her house, and appellant believed that he was stalking her. Respondent told appellant that he falsely reported on November 22, 2008 that W. K. needed attention because he did not want to pay support and he wanted to go to jail. Appellant was afraid for her safety and believed that respondent would endanger W. K. in order to get back at her. W. K. was sometimes present during the arguments between his parents, and he referred to respondent as Swiper, whos a bad character on Dora the Explorer.

Following the hearing, the juvenile court denied the request for a restraining order. The court explained: And I heard the testimony from Ms. C[.], and she has not met her burden of proof. And let me tell you folks, I have done hundreds of restraining order trials and I have to say that her -- much of her testimony lacked detail about her allegations. [] Now, Ive read Mr. K[.]s criminal history and its extensive and there is a lot of domestic violence, but I dont see anything recently that would convince me to grant a restraining order. . . . [] . . . [] But there was no detail in Ms. C[.]s testimony, no detail that I could rely on and I did not find some of her testimony believable because of the lack of detail, so the request for the restraining order is denied. . . . [] . . . [] Well, you [Ms. C.] made about six allegations of different things that you considered to be signs of domestic violence or incidents of domestic violence. I made notes that some of them lack detail. Somebody asked you about the context. For me to believe that there was domestic violence, I have to understand exactly what happened and I could not from your testimony, and you were prompted more than once to provide that information to the Court. There were a number of times when you were asked a question, I thought a seemingly easy question, when you paused for some time, and it makes me wonder if youre telling the Court the truth or not, maam. And quite frankly, what you have described of the recent behavior does not rise to the level of this court granting a restraining order. [] Now, I am not denying that there have been criminal protective orders in the past and Domestic Violence Prevention Act orders in the past. And I am not denying that those -- that Mr. K[.] behaved in a way to warrant those being granted. But I cant rely on all that past information to grant a restraining order today. There has not been anything recently that I think warrants the restraining order, and thats why Im denying it.

II. Discussion

Appellant contends that the juvenile court abused its discretion in failing to issue the restraining order pursuant to section 213.5, subdivision (a) as an extension of the prior family court restraining order. We disagree.

Section 213.5, subdivision (a) provides that, once a juvenile dependency petition has been filed, the juvenile court may issue a temporary restraining order protecting the dependent child and any caregivers of the child. (In re CassandraB. (2004) 125 Cal.App.4th 199, 211 (Cassandra B.).) Section 213.5 states that the juvenile court may issue ex parte orders (1) enjoining any person from molesting, attacking, striking, sexually assaulting, stalking, or battering the child[,] . . . excluding any person from the dwelling of the person who has care, custody, and control of the child[,] and . . . enjoining any person from behavior, including contacting, threatening, or disturbing the peace of any child or parent as necessary. . . . ( 213.5, subd. (a).) After notice and a hearing, the juvenile court may issue any of the orders set forth in subdivision[] (a) . . . for a period not to exceed three years. ( 213.5, subd. (d).) Proof may be by the application and any attachments, additional declarations or documentary evidence, the contents of the juvenile court file, testimony, or any combination of these. (Cal. Rules of Court, rule 5.630(h)(2).) It was appellants burden to prove by preponderance of evidence that the allegations of her application for a restraining order were true. (Evid. Code, 115, 500.)

An appellate court reviews the juvenile courts decision on an application for a restraining order under the abuse of discretion standard. (Cassandra B., supra, 125 Cal.App.4th at p. 210.) The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) We apply the substantial evidence standard of review to the trial courts factual findings in support of the order. Thus, we review the evidence in a light most favorable to the respondent, and we indulge all legitimate and reasonable inferences to uphold the juvenile courts determination. (Cassandra B., at p. 210.) If the findings are supported by substantial evidence, an appellate court will not find the juvenile courts decision on an application for a restraining order to be an abuse of discretion. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1512.)

Relying on Ritchie v. Konrad (2004) 115 Cal.App.4th 1275 (Ritchie), appellant asserts that the test required under Family Code section 6345 should apply to the present case.

In Ritchie, the respondent sought an extension of a protective order under Family Code section 6345. (Ritchie, supra, 115 Cal.App.4th at p. 1280.) This statute provides that an order may be renewed upon request either for five years or permanently, without a showing of any further abuse since the issuance of the original order . . . . (Fam. Code, 6345.) The trial court interpreted the statutory language as entitling the protected party to an extension of the protective order upon request. (Ritchie, at p. 1281.) The appellate court reversed, and held that the trial court should grant a requested extension unless the request is contested and the judge determines the protected party does not entertain a reasonable apprehension of future abusive conduct. (Ritchie, at p. 1279.)

We first note that Ritchie did not involve interpretation of section 213.5, and that the language of section 213.5 differs from that in Family Code section 6345. However, even assuming that the Ritchie test applies in the present case, there was no error. Here, the application for an extension of the restraining order was contested. Following the hearing, the juvenile court found that appellant failed to carry her burden of proving by a preponderance of the evidence that the allegations in her application for the restraining order were true. The juvenile court expressly rejected appellants testimony regarding incidents of domestic violence, observing that appellant was unable to provide details of the events and that she paused for some time several times when she was asked a seemingly easy question. The juvenile court also acknowledged both the prior criminal and civil protective orders and respondents prior conduct. The court then concluded that since there had been no such conduct recently, a restraining order was unwarranted. This finding is supported by substantial evidence. It had been approximately two years since respondent had been convicted of violating a protective order. Given the complete rejection of appellants testimony, the juvenile court implicitly found that appellant did not have a reasonable apprehension of future abusive conduct. (Ritchie, supra, 115 Cal.App.4th at p. 1279.) Accordingly, the juvenile court did not abuse its discretion in denying the application for a restraining order. [3]

Appellant argues that even if the juvenile court rejected her testimony, there was substantial evidence to support an order granting the application for a restraining order. She first points out that, on February 3, 2009, the juvenile court sustained the petition alleging that W. K. was at risk and the mother had failed to protect him as evidenced by, among other reasons: [] (b)(7) [T]here is a significant history of the father, M. K., perpetrating domestic violence against the mother and violating a restraining order that prohibits him from having contact with the mother. [] (b)(10) [T]he father has a significant criminal history. . . . In light of this finding, appellant appears to be arguing that the juvenile courts finding that respondent posed no danger to her or W. K. was spectacularly flawed. We reject this argument.

The decision to sustain a section 300 petition is not the same as one to grant or deny an application for a restraining order under section 231.5. As appellant acknowledges, there was other evidence supporting the section 300 petition, including appellants mental illness, which affected her ability to parent W. K., appellants recent threat to kill herself and W. K., appellants failure to utilize services from the Department, and respondents failure to receive treatment for his mental illness. Other factors are considered in determining whether to issue a restraining order under section 213.5. Thus, a juvenile court must find evidence of molesting, attacking, striking, sexually assaulting, stalking, or battering the child[,] . . . [or] behavior, including contacting, threatening, or disturbing the peace of the child or parent. ( 213.5, subd. (a).) That a person has a history of domestic violence is not dispositive in making this determination.[4] At issue was whether respondents more recent conduct necessitated the issuance of a restraining order. The trial court found that appellants testimony was not credible, and thus appellant had failed to carry her burden of proof.

Appellant also contends that the juvenile court erred by failing to conduct the criminal record search required under section 213.5, subdivision (k). Respondent counters that appellant has waived this issue.

Section 213.5, subdivision (k)(1) states: Prior to a hearing on the issuance or denial of an order under this part, a search shall be conducted as described in subdivision (a) of Section 6306 of the Family Code. Family Code section 6306 provides in relevant part that the court shall ensure that a search is or has been conducted to determine if the subject of the proposed order has any prior criminal conviction for a violent felony specified in Section 667.5 of the Penal Code or a serious felony specified in Section 1192.7 of the Penal Code; has any misdemeanor conviction involving domestic violence, weapons, or other violence; has any outstanding warrant; is currently on parole or probation; or has any prior restraining order or any violation of a prior restraining order. (Fam. Code, 6306, subd. (a).) The trial court is required to consider this information prior to determining whether to issue a restraining order. ( 213.5, subd. (k)(2).)

A party, who does not make a timely objection in juvenile dependency proceedings to a non-jurisdictional issue, has forfeited the issue on appeal. (In re M. S. (2009) 174 Cal.App.4th 1241, 1252.) Any other rule would permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not. [Citations.] [Citation.] (In re Riva M. (1991) 235 Cal.App.3d 403, 412.)

Here, appellant did not raise the issue of the juvenile courts failure to comply with section 213.5, subdivision (k) at the hearing. Appellant argues that the waiver rule may be relaxed when a defect in the proceedings fundamentally undermined the statutory scheme so that the parent [was] kept from availing himself or herself of the protections afforded by the scheme as a whole. (In re Janee J. (1999) 74 Cal.App.4th 198, 208 [(Janee J.)].) Janee J. does not assist appellant. In that case, the appellant appealed from an order terminating her parental rights. (Janee J., at pp. 205-206.) She claimed that she was deprived of the effective assistance of counsel because counsel failed to object to errors relating to notice and findings at prior hearings. (Janee J., at p. 206.) However, the appellant failed to appeal from, or petition for writ review of, these prior orders. (Ibid.) After reviewing her various claims, the appellate court concluded that the appellant was not excused from the waiver rule. (Janee J., at p. 209.)

Here, at the hearing on the restraining order, appellants counsel did not claim that the juvenile court failed to comply with the criminal records search requirement. Instead, appellants counsel asked the juvenile court to take judicial notice of respondents criminal history, details of the domestic violence incidents, police reports, and prior restraining orders, which were documented in the report prepared for the jurisdictional and dispositional hearing. The juvenile court noted that it would take judicial notice of these documents.

Appellant now argues that the information provided by the social worker was incomplete. She claims that the social worker failed to include the actual convictions and sentences. There is no merit to this claim. First, the social worker listed respondents charged offenses, the dates, and the disposition as either a misdemeanor or felony. Thus, the reasonable inference is that respondent was convicted as charged. Second, section 213.5, subdivision (k) does not require that the record search include any sentence imposed. Appellant also relies on information provided by respondent during a psychiatric evaluation by Santa Clara County Mental Health in January 2004. This report states that respondent. was incarcerated at San Quentin from ages 17 to 23 for manslaughter. However, the reliability of this statement is questionable. This same evaluation states that respondent was committed to the California Youth Authority between the ages of 10 and 13, which appears highly unlikely. In addition, the social worker listed that respondent had been convicted of battery and tampering with a vehicle while he was allegedly in San Quentin. While respondent may have committed a battery while in prison, it is doubtful that he committed a violation of the Vehicle Code. It also appears inconceivable, given the issue in this case, that respondents conviction for manslaughter would not have been at least mentioned by appellant, appellants counsel, W. K.s counsel or the Departments counsel, if, in fact, he had been convicted of this offense. As in Janee J., appellant has failed to demonstrate that she should be excused from the waiver or forfeiture rule.[5]

Alternatively, appellant contends that her counsels failure to object to the adequacy of the criminal records check constituted ineffective assistance of counsel.

To establish ineffective assistance of counsel in dependency proceedings, a parent must demonstrate both that: (1) his appointed counsel failed to act in a manner expected of reasonably competent attorneys acting as diligent advocates; and that (2) this failure made a determinative difference in the outcome, rendering the proceedings fundamentally unfair in that it is reasonably probable that but for such failure, a determination more favorable for [the appellants] interest would have resulted. [Citations.] (In re Dennis H. (2001) 88 Cal.App.4th 94, 98.)

In the present case, appellant has failed to establish that her counsel failed to act as a reasonably competent attorney. There is nothing in this record on appeal to establish that the juvenile court did not consider the information that would have been revealed by the requisite criminal records search. Accordingly, we reject appellants contention of ineffective assistance.

III. Disposition

The order is affirmed.

_______________________________

Mihara, J.

WE CONCUR:

______________________________

Elia, Acting P. J.

______________________________

McAdams, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] All further statutory references are to the Welfare and Institutions Code unless stated otherwise.

[2] W. K. has filed a brief that challenges the order denying the application for a restraining order. The Santa Clara County Department of Family and Childrens Services (Department) has filed a letter brief, which states its position that no error occurred.

[3] W. K. argues that the trial court arbitrarily rejected appellants testimony. He asserts that her testimony was corroborated by the unchallenged history of the father repeatedly violating restraining orders and being convicted of domestic violence. Here, though the juvenile court expressly acknowledged respondents criminal history, it determined that appellants testimony was not credible. This court ha[s] no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence. . . . (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53 (Casey D.) Accordingly, we reject the argument that the juvenile court improperly disregard[ed] the evidence.

[4] Appellant focuses on respondents history of domestic violence and criminal conduct. As previously stated, it is not this courts role to reweigh the evidence to reach a result contrary to that of the juvenile court. (Casey D., supra, 70 Cal.App.4th at pp. 52‑53.)

[5] Appellant also argues that the social worker failed to include the system used to obtain information, the presiding court, and the conditions of probation or parole. Section 213.5, subdivision (k) does not require such information.