In re Nathan V.
Filed 1/24/13 In re Nathan V. CA2/4
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 FOUR
In
re NATHAN V.,
a
Person Coming Under the Juvenile Court Law.
B239786
(Los Angeles County
Super. Ct. No. CK90071)
LOS
ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
A.
C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
County, Timothy R. Saito, Judge. Affirmed.
Nancy Rabin Brucker, under appointment
by the Court of Appeal, for Defendant and Appellant.
John F. Krattli, County Counsel, James
M. Owens, Assistant County Counsel, and William D. Thetford, Principal Deputy
County Counsel, for Plaintiff and Respondent.
A. C. (Mother) appeals from an order
of the juvenile court granting the
request of Neil V. (Father) for a restraining order against her to protect
himself, their child Nathan V., and Father’s fiancée Maria P. We find substantial evidence supports the
court’s order and so affirm.
FACTUAL AND PROCEDURAL
BACKGROUND
Nathan (born in 2004) came to the
attention of the Los Angeles County Department
of Children and Family Services (DCFS) on August 25,
2011, when
DCFS received a report of domestic violence between Mother and her husband,
Alfred A. (Stepfather). Stepfather was
arrested after he tried to choke Mother.
Mother left to stay with family members, but she returned to the home
with Nathan a few days later. Mother
indicated to the caseworker that she did not want to maintain an emergency
protective order against Stepfather.
Instead, she and Stepfather planned to seek counseling through their
church.
On September 2, 2011, Father called the caseworker to
express his concern for Nathan’s safety, explaining that Mother had been
violent during their marriage and that he left her in 2010 after she threw an
object at him, cutting his face and giving him a black eye.
On September 8, 2011, the caseworker interviewed Mother
and Stepfather in their home. Mother
stated that she had been diagnosed with bipolar disorder, but she had been
unable to take her medication because she was pregnant. The caseworker discussed the most recent
incident and a previous incident of domestic violence and suggested to
Stepfather that alcohol played a role in both incidents.
The caseworker expressed concern for
Nathan, but Stepfather and Mother explained that they had never been abusive
toward Nathan. The caseworker
interviewed Nathan, who was well cared for and did not have any signs of abuse
or neglect. Nathan denied that Mother or
Stepfather had ever tried to harm him, but he said that it made him sad when he
saw the violence between Mother and Stepfather and that he did not want
Stepfather to hurt Mother again. When
the caseworker returned to the living room, Mother was crying and said her
husband had left. The caseworker told
Mother that Stepfather could not return to the home until he had successfully
enrolled in court-ordered programs.
On September
12, 2011,
the caseworker received a voicemail from Stepfather, who said that Mother was a
liar and that Nathan should be with Father, not with Mother. He stated that this was not her first
incident of domestic violence against him or Father, and that Mother’s
17-year-old daughter, Deanna L. (born in 1993), had left because of Mother,
whom he described as “incapable of taking care of her kids.†The caseworker asked Mother about these
statements, and she said that Stepfather wanted Nathan to live with Father so
that Mother and Stepfather could have their own family. The following day, Stepfather left another
message for the caseworker, apologizing for his first message and explaining
that he had been angry and drunk at the time.
Deanna told the caseworker that she
was going to live with Mother for two months before leaving for college and
denied that she was in any danger at Mother’s home. Deanna felt that Father was trying to create
problems for Mother in order to gain custody of Nathan. She said Mother and Stepfather argued, but
she denied that they hit each other.
Nathan was detained from Mother and
released to Father at a September 26, 2011 detention hearing. Mother was granted monitored visits, but
Father was not to be the monitor. A
pretrial resolution conference was scheduled for October 24,
2011.
On October 24,
2011, Father
filed an application for a restraining order against Mother, seeking protection
for himself, his fiancée, and Nathan.
The application relied on an October 20, 2011 jurisdiction/disposition report for
a description of Mother’s conduct. The
court issued a temporary restraining order.
The jurisdiction/disposition report
detailed three DCFS referrals. First, a
child abuse referral on November 23, 2009 alleged that Mother abused
Deanna. Deanna told the reporting party
that she was afraid to go home because she was having academic problems and was
afraid Mother would assault her. Mother
admitted hitting Deanna on the shoulder when Deanna lied about not being in
class. Deanna said Mother had hit her in
the past, but Father (who was Deanna’s stepfather) said that Deanna lied a
lot. The allegations were found to be
inconclusive, and the referral was closed.
Another referral was made on December
9, 2009,
alleging that Deanna was sexually abused by a teacher.
On April 5, 2010, a child abuse report alleged
emotional abuse, physical abuse, and severe neglect by Mother of Nathan. Mother had chased Father in her car for
approximately 10 miles while Nathan was in the car. Mother admitted throwing an object at Father
and causing a black eye. She stated that
she was recently diagnosed with bipolar disease and was being treated. At the time of the report, Father stated that
he felt Nathan was safe with Mother, despite the car chase. The allegations of emotional abuse and severe
neglect were found to be inconclusive, and the allegations of physical abuse
were determined to be unfounded, so the referral was closed.
The jurisdiction/disposition report
further alleged at least three violent altercations between Mother and
Stepfather, on July 18, August 24, and September 8 of 2011. Mother asserted that there were errors in the
report regarding these incidents. She
stated that Stepfather had hit her on only one occasion and speculated that
Stepfather had become violent because he was frustrated about not being able to
find a job and about Mother’s problems with Father.
Mother also stated that the July 2011
incident described in the report did not involve domestic violence. According to Mother, in that incident,
Stepfather had become upset during an argument about money and his lack of a
job, so they went for a walk. When they
returned home, Stepfather began cutting up clothes she had bought for him and
throwing them in the toilet. When she
tried to remove them from the toilet, Stepfather slipped and broke a mirrored
door in the bathroom. Mother called the
police, but she said it was because she wanted him out of the house, not
because he had hit her. She denied a
statement on the police report that she was an aggressor in the incident. Mother also asserted that her mental health
concerns did not contribute to the arguments she had with Stepfather, stating
that, contrary to the caseworker’s earlier report, she was taking a reduced
dosage of her medication during her pregnancy.
The report also indicated that
Stepfather had called Father in July 2011 to express concern for Nathan because
Mother “was crazy.†Mother called Father
in August 2011 to say that Stepfather had hit her. Nathan told Father that Stepfather had choked
Mother and threatened to kill her.
Father expressed the opinion that Mother had started the fights with Stepfather,
stating that she was aggressive toward him during their marriage.
In October 2010, Father called the
police to report that Mother had smashed Father’s jack-o-lantern on his car
when she came to pick up Nathan. He did
not see her do it, but he assumed it was her.
According to Deanna, Father and Mother
argued a lot during their marriage, and Father broke things and made holes in
the walls. She said that during their
last argument before they separated, Father made holes in the bathroom door
while Mother was in the bathroom, and Mother threw something at his face, resulting
in swelling under his eye.
The jurisdiction/disposition report
recommended family reunification services be provided to Mother to address
domestic violence, parenting, and mental health issues. The report also recommended family
maintenance services be provided to Father to address parenting issues and
communication skills to better co-parent with Mother.
At the November 7, 2011 adjudication
hearing, Mother pled no contest to the allegations in an amended petition. The court sustained the allegations of
failure to protect, based on the violent altercations between Mother and both
Stepfather and Father, as well as Stepfather’s alcohol use, and found Nathan to
be a person described by Welfare and Institutions Code section 300.
temporary restraining order.
Following numerous continuances, a
hearing was held on February 14, 2012, regarding Father’s application for a
permanent restraining order. Father
testified that his request for the restraining order was based on 2010 emails,
Mother’s vandalism of his car in late 2010, and two telephone calls from her
that violated the restraining order granted in this case.
In support of his application, Father
submitted two email exchanges between him and Mother from May and July
2010. The emails indicate plenty of
acrimony between Mother and Father, but they do not indicate any threatening or
harassing behavior by either party.
At the February 2012 hearing, Father
testified that Mother called him twice in December 2011, in violation of the
temporary restraining order. In the
first call, Mother called him to say that Stepfather was threatening her, her
family, and Father. Mother told Father
to let his job know and have the police department get involved.
keep Nathan out of school in order to keep him safe because Stepfather was
threatening to hurt both Nathan and Father.
Father further testified that he was afraid because Mother’s “husband is
a felon. They are currently having
issues, and I believe that she is telling him things to make him angry, that’s
going to hurt me and my son.â€
When asked if Mother had ever
assaulted him, Father recounted the incident in 2009 or 2010 when Mother threw
a “hard, plastic elephant and struck [him] in the face, cutting [his] lower
eye.†There had been no other incidents,
and there were no incidents of assault or threats against his fiancée.
Father conceded that Mother’s 2010
emails did not contain any threats against him.
He also conceded that he did not see Mother throw the pumpkin at his car
in the 2010 vandalism incident. Father
had unsuccessfully sought a restraining order in 2010, based on Mother throwing
the plastic elephant at his face, the car chase, and her emails.
Counsel for Mother and counsel for
Nathan opposed the restraining order, arguing that there was no threat and that
the incidents Father recounted were too remote to support a finding of imminent
danger. The recent voicemails from
Mother appeared to be intended to warn Father of a possible threat from
Stepfather and did not themselves indicate that Mother was threatening
him.
The court granted a one-year
restraining order, citing in particular the possible threat that Stepfather
posed to Father. The court allowed the
possibility for Mother to have monitored visits with Nathan and ordered no
contact between Father and Stepfather.
Mother filed a notice of appeal.
DISCUSSION
Mother contends there was insufficient
evidence to support the issuance of the restraining order. We conclude that the juvenile court’s finding
was supported by sufficient evidence and so affirm.
“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. The
juvenile court may issue orders ‘(1) enjoining any person from molesting, attacking,
striking, sexually assaulting, stalking, or battering the child or any other
child in the household; (2) excluding any person from the dwelling of the
person who has care, custody, and control of the child; and (3) enjoining any
person from behavior, including contacting, threatening, or disturbing the
peace of the child, that the court determines is necessary to effectuate orders
under paragraph (1) or (2). A court . .
. may simultaneously issue an ex parte order enjoining any person from contacting,
threatening, molesting, attacking, striking, sexually assaulting, stalking,
battering, or disturbing the peace of any parent, legal guardian, or current
caretaker’ of the child.†(
Cal.App.4th 199, 211 (Cassandra B.).)
“‘[W]e 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. [Citation.]’ [Citation.]â€
(In re B.S. (2009) 172
Cal.App.4th 183, 193 (B.S.).)
In Cassandra
B., the minor’s attorney sought and was granted a temporary restraining
order against the mother, who had left numerous voice messages for the
caretaker, gone to the minor’s school, and tried to enter the caretaker’s
apartment building. On appeal, the
mother argued that the juvenile court did not have authority to issue the
restraining order because violent behavior or the threat of violence was a
prerequisite to the imposition of a restraining order under section 213.5. However, the court held that violence was not
required for the imposition of a restraining order, pointing out that the
statute included “‘molesting’ or ‘stalking’ in the conduct the
which necessarily involves violent behavior or the threat of violence.†(Cassandra
B., supra, 125 Cal.App.4th at p.
211.)
Cassandra
B. further reasoned that the term “‘molest’†had been defined to mean “‘to
disturb, irritate, offend, injure, or at least tend to injure, another
person. [Citations.]’†(Cassandra
B., supra, 125 Cal.App.4th at p.
212.) The court found “ample evidenceâ€
to support the juvenile court’s issuance of the restraining order, citing the
mother’s “conduct in attempting to gain entry to the home of Cassandra’s
caregivers without their knowledge, appearing at Cassandra’s school and then
following behind the caregiver’s car after Cassandra was picked up from school,
together with her threats to remove Cassandra from her caregivers’ home . . .
.†(Ibid.)
Pursuant to Cassandra B., the restraining order in this case was justified even
if Mother did not engage in violent behavior or threaten violence against
Father. While the emails cited by Father
did not support the grant of the restraining order because there was no
evidence in the emails of harassing or stalking conduct, the car chase and
vandalism of Father’s car do constitute evidence of “‘conduct designed to disturb,
irritate, offend, injure, or at least tend to injure, another person. [Citations.]â€
(Cassandra B.,
reasoned, Mother’s relationship with Stepfather was cause for concern. Mother earlier had relayed to Father threats
against him and Nathan made by Stepfather, and last minute information filed
with the court indicated another violent altercation between Mother and
Stepfather in February 2012. Because of
the prior threats made by Stepfather, it is reasonable to infer that Mother’s
continued violent relationship with Stepfather posed a threat to Father, his
fiancée, and Nathan.
Viewing, as we must, the evidence in
the light most favorable to the respondent and “‘indulg[ing] all legitimate and
reasonable inferences to uphold the juvenile court’s determination’†(
sufficient to support the court’s issuance of the restraining order.
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
J.
We concur:
EPSTEIN, P. J.
MANELLA, J.
name="_ftn1" title="">[1] All further statutory references are
to the Welfare and Institutions Code.
name="_ftn2" title="">[2] The record indicates that Father
worked in law enforcement.
