In re LILIANNA C., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES v. TORI C.
B324755 (Los Angeles County Super. Ct. No. 18CCJP05147B)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Filed 2/8/2024
Daniel Zeke Zeidler, Judge
CERTIFIED FOR PARTIAL PUBLICATION*
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. TORI C., Defendant and Appellant.
*
Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication as to all parts except Parts I.B. and II. of the Discussion.
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica S. Mitchell, Senior Deputy County Counsel, for Plaintiff and Respondent.
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In this juvenile dependency case, Tori C. (mother) attacks aspects of the three-year restraining order issued when the juvenile court asserted jurisdiction over her then four-year-old daughter, Lilianna C. (Lilianna). In resolving this attack, we necessarily confront a question of statutory construction—namely, does
and hold that a juvenile court‘s authority under
FACTS AND PROCEDURAL BACKGROUND
I. The Family
Mother gave birth to Lilianna in August 2018. At the time of her birth, Lilianna had methamphetamine and amphetamines in her bloodstream, and thereafter suffered withdrawal symptoms.2
II. Prior Juvenile Dependency Case
In October 2018, the juvenile court exerted dependency jurisdiction over Lilianna on the basis of (1) the drugs in Lilianna‘s body at the time of her birth, and (2) mother‘s history of illicit drug use. The court initially removed Lilianna from mother, but later returned her to mother‘s custody and, in October 2019, terminated jurisdiction over Lilianna.
III. Facts Underlying the Current Dependency Case
By January 2022, Lilianna was three years old. Mother regularly screamed at Lilianna and threatened to hit her, with her voice so loud that mother‘s neighbors could hear the commotion through the walls of their apartment complex. On several occasions, mother made good on her threats and actually did strike Lilianna with her hand. In late March 2022, mother took Lilianna to an alleyway; while under the influence or mentally ill, mother yelled that she needed a break, that people “want to lock her up and kill her,” and that she needed someone to take Lilianna. On prior occasions, mother had yelled
IV. Current Dependency Case
A. The petition
On March 29, 2022, the Los Angeles County Department of Children and Family Services (the Department) filed a petition asking the juvenile court to exert dependency jurisdiction over Lilianna due to (1) mother‘s “history of substance abuse” that “renders [her] unable to provide regular care and supervision” of Lilianna, as evidenced by the prior juvenile dependency case; and (2) mother‘s “fail[ure] to make an appropriate plan for [Lilianna‘s] ongoing care and supervision,” as evidenced by mother‘s attempt to find anyone else to take custody of Lilianna.3 The Department further alleged that mother‘s conduct placed Lilianna at substantial risk of serious physical harm, thereby warranting the exercise of jurisdiction under subdivision (b) of
B. Mother‘s threats and interim temporary restraining order
Soon after the Department filed its petition, the juvenile court detained Lilianna from mother and placed her with mother‘s sister (maternal aunt), who lived with her husband (maternal uncle) and their toddler child (maternal cousin).
On May 10, 2022, mother called maternal aunt and left a voicemail. In the voicemail, mother said, “Here‘s the deal. I am going to fucking murder you because you let [Lilianna] go around” Lilianna‘s grandmother (maternal grandmother), whom mother believed—without any foundation—was a “child molester.” In the same voicemail, mother accused maternal aunt of being in a cult and being mentally ill. The same day, mother also called and left a voicemail for maternal grandmother, in which mother “rambled on” while accusing maternal grandmother of being a child molester and being a cult member. Mother additionally made three attempts to call maternal uncle that day.
On May 19, 2022, the juvenile court issued a temporary restraining order (TRO) prohibiting mother from harassing and contacting Lilianna, maternal aunt, maternal uncle, maternal cousin, and maternal grandmother, and ordered
While the TRO was in place, mother did not make any more threatening communications.
C. Jurisdictional and dispositional hearing
On August 10, 2022, the juvenile court exerted dependency jurisdiction over Lilianna on the basis of mother‘s substance abuse and her failure to make an appropriate plan. The court removed Lilianna from mother‘s custody, and ordered the Department to provide mother with reunification services. The court ordered that Lilianna be placed with maternal aunt, maternal uncle, and maternal cousin. Simultaneously, the court issued a three-year permanent restraining order enjoining mother from harassing or contacting—and also ordering her to stay away from—Lilianna, maternal aunt, maternal uncle, maternal cousin, and maternal grandmother (except for authorized visits with Lilianna). Mother did not object to the inclusion of maternal cousin or maternal grandmother in the restraining order.
D. Appeal
Mother filed a timely notice of appeal challenging the juvenile court‘s “Jurisdiction and Disposition Orders of Suitable Placement . . . .” The notice did not list the restraining order.
DISCUSSION
In this appeal, mother does not contest the juvenile court‘s exercise of dependency jurisdiction over Lilianna or its dispositional order removing Lilianna from her custody. Instead, she argues that the juvenile court erred by issuing a restraining order that (1) protects Lilianna, because there is insufficient evidence to support any order against mother; and (2) protects maternal cousin and maternal grandmother, because the statute authorizing restraining orders—
Under
I. Lilianna as a Protected Person
Mother argues that there is insufficient evidence to support issuing a restraining order that protects Lilianna.
A. Construction of section 213.5
Before addressing mother‘s substantial evidence challenge, we must confront a precursor question of statutory construction: Does
In pertinent part, subdivision (a) of
“After a petition has been filed pursuant to Section 311 to declare a child a dependent child of the juvenile court, and until the time that the petition is dismissed or dependency is terminated, . . . the juvenile court has exclusive jurisdiction to issue ex parte orders (1) enjoining a person from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, . . . destroying the personal property, contacting, . . . coming within a specific distance of, or disturbing the peace of the child or any other child in the household.” (
§ 213.5 , subd. (a), italics added.)
Subdivision (d) then empowers a juvenile court to issue a restraining order lasting up to three years on any ground in subdivision (a) as long as the enjoined party receives notice and a hearing. (
Here is the problem:
First and foremost, it leads to what we view as an absurd result. If the above-quoted text is read literally, a juvenile court would lack the power—in the vast majority of dependency cases where petitions are filed by social workers pursuant to
Second, our review of the legislative history of
Third and lastly, the dependency statutes as a whole reinforce our conclusion that
To be sure, this drafting error is now 27 years old. In the intervening 27 years, countless judicial decisions have upheld restraining orders protecting the dependent child in cases where the social worker filed the petition, implicitly adopting the analysis we set forth here. We publish to provide a usable citation to justify this longstanding and consistent reading of
B. Substantial evidence analysis
Because, as we have concluded,
Lilianna is properly listed as a protected party because substantial evidence supports the juvenile court‘s implicit finding that mother previously disturbed Lilianna‘s peace. Mother regularly yelled at Lilianna and
Mother resists this conclusion with three arguments.
First, she argues that In re C.Q. (2013) 219 Cal.App.4th 355 and N.L., supra, 236 Cal.App.4th 1460 dictate a result in her favor. They do not, as they are inapt. Neither case involves a situation in which the parent directed her actions at the child—as mother did here. (C.Q., at pp. 364-365 [no basis to list children as protected persons when they were not present when father engaged in domestic violence against mother]; N.L., at pp. 1467-1468 [no basis to list child as protected person when mother‘s drug use and practice of making false allegations that father committed sexual abuse did not indicate that mother had “engaged in any violent or dangerous conduct toward” the child].)
Second, mother urges that the “primary basis” for the restraining order was the threatening voicemails she left in May 2022, and which did not threaten Lilianna. This is of no consequence because, as noted above, the record elsewhere supports the finding that mother on other occasions disturbed Lilianna‘s peace. The fact that mother did not also threaten to kill her daughter on the voicemail does not somehow negate all other evidence that supports naming Lilianna as a protected person.
Third and lastly, mother urges that she did not make any further threats after her May 2022 calls (and, implicitly, did not yell at or strike Lilianna since May 2022). This is also of no consequence because the TRO explicitly prohibiting that behavior had been in place since those threats were made, and mother‘s contact with Lilianna has been limited to monitored visits where the opportunity to yell at or strike Lilianna is greatly reduced. Under these circumstances, the absence of further harm does not mean that Lilianna is not in continued danger of abuse from mother should no restraining order at all be in place.
II. Maternal Cousin and Maternal Grandmother as Protected Persons
Mother also argues that the juvenile court erred in listing maternal cousin and maternal grandmother as protected persons because they fall outside the ambit of
Mother is incorrect as to maternal cousin. That is because, as noted above, the statute reaches the child and “other children in the household.” Because maternal cousin is the child of maternal aunt and maternal uncle, and because maternal aunt is the current caregiver of Lilianna, maternal cousin was a child in the household with Lilianna at the time the restraining order issued.
But mother is correct as to maternal grandmother.
DISPOSITION
The juvenile court is ordered to modify the restraining order to exclude maternal grandmother as a protected person. In all other respects, the juvenile court‘s jurisdictional and dispositional orders are affirmed.
CERTIFIED FOR PARTIAL PUBLICATION.
HOFFSTADT, J.
We concur:
ASHMANN-GERST, Acting P. J.
CHAVEZ, J.