In re SAMANTHA V. et al., Persons Coming Under the Juvenile Court Law.
B328568 (Los Angeles County Super. Ct. No. 22CCJP02643)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE
October 23, 2024
Lucia J. Murillo, Judge Pro Tempore
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from orders of the Superior Court of Los Angeles County, Lucia J. Murillo, Judge Pro Tempore. Affirmed.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Respondent.
Appellant Luis V. (father) and respondent Lilian O. (mother) have three children: Samantha V. (born in 2011), Rocio V. (born in 2016), and Santiago O. (born in 2017). The juvenile court assumed dependency jurisdiction over the three children because mother and father have a history of engaging in violent altercations in the presence of the children, father has a history of substance abuse, and mother failed to protect the children from father. The court later granted mother‘s request for a restraining order against father that included the children as protected parties and terminated jurisdiction with a juvenile custody order that awarded joint legal custody of the children to both parents, sole physical custody to mother, and monitored visitation to father.
On appeal, father contests the evidentiary sufficiency of the portion of the restraining order naming his children as protected persons and the order restricting him to only monitored visits with the children. We reject his challenge to the restraining order because there is substantial evidence that father exposed his children to the risk of physical harm from his acts of domestic violence against mother in their presence. Father‘s claim of error regarding the monitored visitation order fails because the
PROCEDURAL BACKGROUND1
We summarize only those aspects of the procedural history pertinent to our disposition of this appeal. We address facts relevant to father‘s appellate claims in Discussion, parts A-B, post.
On July 8, 2022, the Los Angeles County Department of Children and Family Services (DCFS or the agency) filed a dependency petition pursuant to
On August 26, 2022, the juvenile court held a combined jurisdiction/disposition hearing. Father pleaded no contest to an amended version of the dependency petition that averred the following: “The children Samantha V[.], Rocio V[.], and Santiago [O.]‘s mother . . . and father . . . have a history of engaging in violent altercations. On 04/18/2021, . . . father chased . . . mother with a rake, in the presence of the children Rocio and Santiago. On a prior occasion in 2021, . . . father slapped . . . mother‘s face. Father has a history of substance abuse, including alcohol, and is a recent user of amphetamine, methamphetamine, and alcohol, which renders . . . father incapable of providing regular care of the children. . . . [M]other failed to protect the children by allowing . . . father to reside in the children‘s home and to have unlimited access to the children. Such violent conduct on the part of . . . mother and . . . father, substance use by . . . father, and . . . mother‘s failure to protect the children create a detrimental home environment, and place the children at risk of serious physical harm, damage, [and] danger.”
The juvenile court sustained the amended petition, declared the children dependents of the court, removed them from father‘s custody, maintained them in mother‘s custody, ordered the parents to participate in services, and granted father
In October 2022, DCFS permitted father to have unmonitored visitation with the children.
The juvenile court scheduled a
At the
At the March 17, 2023 permanent restraining order hearing, father requested unmonitored visitation, which request the juvenile court denied. (See Discussion, part B, post.) The court granted mother‘s request for a permanent restraining order on the ground that “father‘s conduct has put [mother‘s] safety . . . and the children‘s physical and emotional safety at risk of harm.” The permanent restraining order expires on March 17, 2026, and the order protects mother and the three children from father, requires father to stay 100 yards away from the children‘s school, but allows father to have telephone calls with the children at certain designated times and monitored visitation with them.
On March 24, 2023, the juvenile court terminated dependency jurisdiction and issued a juvenile custody order conferring upon mother and father joint legal custody of the children, awarding mother sole physical custody, and granting father monitored visitation.
Father timely appealed from the permanent restraining order and the juvenile custody order.
”
“When ‘the juvenile court terminates its jurisdiction over a minor who has been adjudged a dependent child . . . the juvenile court on its own motion, may issue . . . an order determining the custody of, or visitation with, the child.’ (
” ’ ” ‘Substantial evidence . . . is . . . evidence which is reasonable, credible, and of solid value to support the conclusion of the trier of fact. [Citation.] In making this determination, all conflicts [in the evidence and in reasonable inferences from the evidence] are to be resolved in favor of the prevailing party, and issues of fact and credibility are questions for the trier of fact. [Citation.]’ ” . . . .’ [Citation.] . . . . [Citation.]” (In re Cole Y. (2015) 233 Cal.App.4th 1444, 1451-1452 (Cole Y.).) The ruling “should ‘be upheld if . . . supported by substantial evidence, even though substantial evidence to the contrary also exists and the [juvenile] court might have reached a different result had it believed other evidence.’ [Citations.]” (See In re Caden C. (2021) 11 Cal.5th 614, 640.) Put differently, ” ’ [w]e must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact. [Citation.]’ [Citation.]” (See Cole Y., at p. 1452.)
” ‘Review for abuse of discretion is . . . focused not primarily on the evidence but the application of a legal standard.’ ” (A.P., supra, 103 Cal.App.5th at p. 1143.) ” ’ ” ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. . . . . [Citation.]’ ” ’ [Citation.]” (N.M., supra, 88 Cal.App.5th at p. 1094.) Whether ” ’ “a discretionary order [is] based on an application of improper criteria or incorrect legal assumptions[,]” ’ ” however, ” ’ “is a question of law [citation] requiring de novo review [citation].” ’ [Citation.]” (See S.G., supra, 71 Cal.App.5th at p. 673.)
DISCUSSION
A. Father Fails To Demonstrate the Juvenile Court Erred In Including the Children in the Restraining Order
Father does not claim the juvenile court erred in issuing a permanent restraining order protecting mother from him. Instead, father argues the court erred in “includ[ing] the children in the restraining order” because “[t]here was no substantial evidence presented that [he] was in any way aggressive or inappropriate toward his children at any point in time, before or after the filing of the petition.” In particular, father asserts, “The children . . . all denied knowledge of any history of domestic violence between mother and [father]” and the children “stated they did not observe [father] behave in a strange or concerning manner“; father had no criminal history; Albert, a maternal
As we noted earlier, father pleaded no contest to—and the juvenile court sustained—an amended dependency petition, which alleged that he and mother “have a history of engaging in violent altercations,” including an occasion in April 2021 when “father chased . . . mother with a rake[ ] in the presence of the children Rocio and Santiago” and another incident in 2021 when “father slapped . . . mother‘s face“; “[f]ather has a history of substance abuse, including alcohol, and is a recent user of amphetamine [and] methamphetamine“; and “[s]uch violent conduct on the part of . . . mother and . . . father, substance use
A declaration mother filed in another matter in May 2021 to support a prior request for a restraining order against father contains additional evidence regarding father‘s acts of domestic violence and his substance abuse.8 In particular, mother attested that in April 2021, father “grabbed a pillow and put it over [her] face” while Santiago was sleeping in the bed next to her, and that father removed the pillow from mother‘s face and allowed her to leave the room after Santiago awoke. Mother further attested that in April 2021, father “went towards [one of the children‘s maternal uncles] to physically assault him” after the maternal uncle confronted father for playing loud music, but another maternal uncle succeeded in “h[olding father] back.” Mother also testified that father was drunk when he chased her with the rake, and that Rocio and Santiago were witnesses to that incident. Similarly, mother declared that on one occasion in 2013, father physically assaulted her while he “was heavily drunk . . . .”
Indeed, DCFS noted in the jurisdiction/disposition report mother had told the agency that “father drank alcohol daily,” “father would become agitated, rude and verbally confrontational with . . . mother whenever he consumed excessive amounts of alcohol,” and “the arguing between the parents had been
Furthermore, there is evidence that father continued to present a risk of physical harm to his children after the juvenile court sustained the amended dependency petition.
At the combined jurisdiction/disposition hearing held on August 26, 2022, the juvenile court ordered father to participate in a full drug and alcohol program, complete a 12-step program, submit to random and on-demand drug and alcohol testing, and complete a 26-week domestic violence program. Yet, in its
In addition, mother attested in her declaration supporting her request for the instant permanent restraining order that father harassed mother on multiple occasions between September 2022 and February 2023.
Mother also claimed in her declaration that father threatened her after the juvenile court had sustained the amended petition. Specifically, mother stated that in December 2022, father telephoned her, and stated that “if [she] was ever with another man, he would shoot [her] and who[m]ever [she] was with,” and that “he did not care if he went to jail.” Mother further attested, “On February 2, 2023, [father] stated that if he ever found out that I was with another person, I would be sorry.”
Based on the evidence detailed above, the juvenile court could have reasonably found that father repeatedly engaged in aggressive acts in mother‘s and the children‘s presence both
Lastly, father asserts in a heading to his opening brief that “the juvenile court erred by including the children in the restraining order while simultaneously ordering joint legal custody to both parents.” (Italics added; capitalization & boldface omitted.) He also seems to argue that the permanent restraining order “limit[s] his ability to exercise his educational rights over his children” because the order “prevent[s father] from being within 100 yards of the children‘s school . . . .”9 (Fn. omitted.) Father does not develop this argument further or cite authority to support it. Accordingly, father waives this claim of error. (See J.F., supra, 39 Cal.App.5th at p. 79 [” ’ “When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.” ’ “].)
B. We Reject Father‘s Assertion the Juvenile Court Concluded It Lacked Authority To Address His Request for Unmonitored Visitation
Father asserts that at the March 17, 2023 permanent restraining order hearing, “the juvenile court erroneously held
The reporter‘s transcript of the March 17, 2023 hearing belies father‘s claim the juvenile court concluded that it lacked authority to consider his request for unmonitored visitation. At that hearing, father‘s counsel orally requested that the court “restore [father] to unmonitored” visits with the children. Mother‘s counsel countered that father‘s request for unmonitored visits was not “proper . . . at th[at] time” because “[t]he court previously stayed receipt of the custody order until [March] 24th in order to hear the restraining order request, and the case closed for monitored visitation for father.”
In rejecting father‘s request for unmonitored visitation, the juvenile court remarked:
[Father‘s counsel], the minute order from February 27 indicates that the juvenile custody order is to reflect mother to be awarded sole physical custody of all the children . . . . Parents were to be awarded joint legal custody . . . . Father is to be awarded monitored visitation. Mother is not to monitor nor be present at father‘s visits.
There‘s no indication that the issue of father‘s visits would be heard today. At that time[, the] court found a basis for reverting father‘s visits to
monitored, and I will not disturb that order at this time.10
The transcript thus reveals the juvenile court agreed with mother‘s counsel that father‘s oral entreaty for unmonitored visits with his children was procedurally improper because the court had previously decided to issue exit orders awarding him only monitored visitation. The court merely found that it had already adjudicated the proper scope of father‘s visitation rights, and not that it was powerless to revisit that prior determination. Indeed, by observing that “the juvenile court declined to hear [his] request” for unmonitored visitation at the restraining order hearing (italics added), father seems to acknowledge the court simply elected not to reconsider whether father would be awarded unmonitored visitation in the exit order.
Father does not argue—let alone cite authority demonstrating—that the juvenile court erred in declining to exercise its discretion to reconsider its prior decision to close the dependency case with an order granting father only monitored visits. (See Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 111, 116 (Nickolas F.) [holding that a juvenile court has the discretion to “reconsider the substance of a previous order“].) Instead, father argues, in passing, “[T]he juvenile court erred in ordering monitored visits . . . in light of the evidence that there
Insofar as father challenges the juvenile court‘s decision not to reconsider its prior ruling restricting him to monitored visitation, we reject that claim of error. As we explained in Discussion, part A, ante, the record contains substantial evidence that at the conclusion of the dependency proceedings, there was still a risk that father would perpetrate future acts of domestic violence against mother in the children‘s presence. Accordingly, the court did not abuse its discretion in declining to reconsider its decision to grant father only monitored visitation. (See Nickolas F., supra, 144 Cal.App.4th at pp. 118-119 [indicating that in reviewing a juvenile court‘s ruling for abuse of discretion, the court‘s factual findings will be affirmed if they are supported by substantial evidence]; N.M., supra, 88 Cal.App.5th at p. 1094 [holding that the juvenile court‘s ” ‘primary consideration’ ” in fashioning an exit order ” ‘must always be the best interests of the child’ “].)
We affirm the juvenile court‘s March 17, 2023 restraining order and the juvenile custody order issued on March 24, 2023.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
KLINE, J.*
* Retired Presiding Justice of the California Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.