In re N.L., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. Na.L., Defendant and Appellant.
No. B260293
Second Dist., Div. Five
May 21, 2015
236 Cal. App. 4th 1460
Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
MOSK, J.—
INTRODUCTION
Na.L. (mother) appeals from the juvenile court’s permanent restraining order against her requiring her to stay away from K.E. (father), the father of N.L., their six-year-old daughter, and N.L. Mother contends that therе was insufficient evidence to support the inclusion of N.L. in the restraining order as a protected person. In affirming in part, reversing in part, and remanding the matter, we hold that based on the record, the juvenile court erred by including N.L. in the restraining order.
FACTUAL AND PROCEDURAL BACKGROUND1
In 2013, the Los Angeles County Department of Children and Family Services (Department) filed a
On June 18, 2014, the juvenile court declared N.L. a dependent of the juvenile court, removed her from mother’s custody, ordered the child home-of-parent father, ordered mother to have monitored visits with N.L. that were
On August 11, 2014, father filed a request for a restraining order seeking, inter alia, аn order that mother stay at least 100 yards away from him and N.L., their residence, his workplace, his vehicle, and N.L.’s school. In support of his request for a restraining order, father declared under penalty of perjury that “[o]n June 18, 2014, following the hearing, [mother] attempted to remove [N.L.] from school. Mother threatened Father, struck him, leaving scratches on Father’s hand and pulled his hair. Mother thrеatened Father when she told him ‘You dead Motherf-----.’ ‘You already know what’s coming to you.’ ‘My people are going to put a bullet through your head.’ Mother violated the court’s 12/18/13 order that she stay [a]way from Father’s home and [N.L.’s] school.”3
The juvenile court granted father’s request, issued a temporary restraining order, and set an order to show cause hearing for August 18, 2014. Thereafter, on several occasions, the juvenile court extended the time of the expiration of the temporary restraining order.
On September 15, 2014, the Department reported that “mother currently has [monitored] visits with [N.L.] every Sunday for 6 hour[s] [a] day .... [During mother’s monitored visits with N.L.,] mother’s interaction with [N.L.] is good, and [N.L.] appears to enjoy spending time with her mother. [N.L.] has reported to [the Department] that she likes visiting with her mother.”
On October 15, 2014, the juvenile court held an order to show cause hearing regarding the issuance of a permanent restraining order. On that date, father declared under penalty of perjury, “I am requesting a restraining order for the following reasons: [¶] 1) Mother has used vulgarity against me, my mother and my family on 9/13/14. [¶] 2) She has threatened me and my family on 9/13/14. [¶] She has had other people threaten my life. [¶] After the last court date,4 she continues to contact the school because she wants a report of the incident that took place there. [¶] In addition, she threatened to remove [N.L.] from school on June 18, 2014, violating a retraining [sic] order that was issued on 12/18/13. [¶] As such, I am fearful of [mother] and fear for my child’s safety.” Father did not base his request for a restraining order on mother’s substаnce abuse, her false allegations that father sexually abused N.L., or her violation of a visitation order.
Mother’s counsel said at that hearing, “The request for a temporary restraining order . . . references an incident that occurred at the school. Therе is a December 18th order from 2013 saying mother is not to attend the child’s school. [¶] . . . [¶] The mother does hold educational rights. . . . [T]here is nothing preventing the mother from contacting the school. [¶] . . . [¶] She is appropriate during her visitation. There have been no concerns raised by the Department, no request by the Department to modify her visits and [father’s counsel] references her erratic behavior; however, the sustained petition references her marijuana use . . . and generally calling in referrals on the father. None of those things have happened since the court sustained the petition. [¶] Additionally, [father’s counsel] references an incident since the temporary restraining order was issued. There is zero evidence to support his statements or threаts my client has made. Furthermore, nothing that he articulated references a specific theft to this child and there are no reports . . . that the father has made regarding [mother] violating the restraining order. So had she in fact threatened father or done anything since the original temporary order was issued on August 11th, there should be a police report or at least an incident rеport regarding mother violating the restraining order. [¶] So I would ask the court not to issue a restraining order preventing the mother from or limiting the mother’s contact with the child. [¶] The child is safe in her placement, safe during the visits. There’s no concerns mother is going to harm the child or take [the child] or do something else.”
The juvenile court issued the restraining order and included N.L. as a protected person. The juvenile court explained that it included N.L. in the restraining order because “[i]t’s a safety risk to the father and he has care of the child. It’s a safety risk to the child and I think that if this was a woman coming to court asking for this restraining order, there would not be an issue.” The juvenile court granted mother monitored visits with N.L. “twice weekly for 3 hours each, minimum,” and the restraining order was “good for one year,” expiring on October 15, 2015. Mother filed a timely notice of appeal.
Subsequently, a final judgment was filed acknowledging the restraining order, placing N.L. in father’s custody, awarding mother six hours of weekly monitored visits supervised by “Rachel Green or other [person] approved by Father; if none available, professional monitor to be paid by mother,” and terminating jurisdiction over N.L.5
The Department filed a letter with this court stating that it did not request the order that mothеr challenges on appeal and that it would not be taking a position regarding the appeal. The letter stated that the Department had contacted the appropriate attorneys from the Los Angeles Dependency Lawyers unit representing father to inform them of the Department’s intention not to take a position in the appeal so that the Los Angеles Dependency Lawyers unit could determine whether it wished to request that its client be appointed counsel on appeal. Neither father, nor anyone on his behalf, has requested the appointment of counsel regarding this appeal. Father has not filed a brief in this matter.
DISCUSSION
A. Standard of Review
Several courts have applied the substantial evidence standard in reviewing the issuancе of a restraining order under
B. Applicable Law
Monitored visitation of a child is not incompatible with a restraining order. (In re C.Q., supra, 219 Cal.App.4th at p. 363 [pеrmanent restraining order requiring the father to stay away from the minor children “except during monitored visitation”]; In re B.S., supra, 172 Cal.App.4th at p. 188 [restraining order prohibiting the father from contacting the protected persons, “‘except for brief and peaceful contact as required for court-ordered visitation of children’”]; In re Cassandra B., supra, 125 Cal.App.4th at p. 206 [restraining order issued against the mother who nevertheless was entitled to reasonаble monitored visitation].)
Mother does not challenge the portions of the restraining order naming father as a protected person and requiring her to stay away from the home where father and N.L. live. Instead, mother contends that there was insufficient evidence to support the inclusion of N.L. as a protected person in the restraining order. We agree.
In In re C.Q., supra, 219 Cal.App.4th 355, the Departmеnt responded to a referral of an incident of domestic violence reported by the mother (July 11, 2012, incident). According to the mother, the father abused her in the family home in the immediate presence of their 12-year-old daughter and while their other three daughters, one of whom was an adult, were in the home. (Id. at p. 357.) At the adjudication and disposition hearing that was held about three months after the July 11, 2012, incident, the mother requested a permanent restraining order against the father. (Id. at p. 362.) The juvenile court “issued a permanent restraining order requiring Father to stay away from Mother, the three minor children (except during monitored visitation), the children’s school or childcare, and the home where Mother and the children live.” (Id. at p. 363.) On appeal, the father contended there was insufficient evidence to support the issuance of a restraining order naming the three minor children as protected persons. (Id. at pp. 357, 363.)
The Court of Appeal reversed the portion of the restraining order naming the children as protected persons, stating, “There is no evidence indicating the children’s safety might be in jeopardy absent their inclusion in the restraining ordеr. [Citation.] . . . Father has monitored visitation with the children, and Mother is not permitted to monitor those visits. The children have stated they want visits with their father and are not afraid of him. There have been no reports that Father has engaged in any violent or otherwise inappropriate conduct since the July 11, 2012 incident.” (In re C.Q., supra, 219 Cal.App.4th at p. 364.) The court said that issuance of a restraining order under
As in In re C.Q., supra, 219 Cal.App.4th 355, here there is no evidence that N.L.’s safety might be in jeopardy absent her inclusion in the restraining order. In support of his request for a restraining order, father stated that on June 18, 2014, mother “threatened to remove [N.L.] from school,” аnd that on or about October 2, 2014, mother continued to contact N.L.’s school. Although father contended in support of the request for the restraining order that the December 18, 2013, order required mother “stay [a]way from . . . [N.L.’s] school” and mother’s threats to remove N.L. from school were contrary to its terms, the December 18, 2013, order was superseded by the juvenile court’s June 18, 2014, order that both mother and father were N.L.’s educational rights holders. As such, mother had the right to communicate with the school.
In addition, there is no evidence in the record that mother had engaged in any violent or dangerous conduct toward, or made any threats to, N.L. There is no evidence that mothеr’s violent conduct or threats occurred in N.L.’s presence. About one month after father filed his request for a restraining order, and about one month before the juvenile court issued the permanent restraining order that included N.L., the Department reported that mother’s interaction with N.L. during their visits was favorable, N.L. appeared to enjoy
Although, as noted above, the court in In re C.Q., supra, 219 Cal.App.4th 355, reversed the portion of the restraining order naming the children as protected persons, it did not modify the restraining ordеr to state that the enjoined parent, the father, had to stay away from the children when they were in the physical presence of the mother. Because the restraining order requires mother here to stay away from father, mother necessarily is required to stay away from N.L. when the child physically is in father’s presence.6 We remand the matter to the juvenile court to modify the rеstraining order in accordance with this opinion.
DISPOSITION
The juvenile court’s order is affirmed in part and reversed in part. We remand the matter for the juvenile court to modify the restraining order to exclude N.L. as a protected person, but shall state that mother is required to stay away from N.L. when N.L. is physically in father’s presence.
Turner, P. J., and Goodman, J.,* concurred.
*Judge of the Los Angeles Superior Court, assigned by the Chief Justice рursuant to article VI, section 6 of the California Constitution.