Filed 1/10/18 Cynthia W. v. A.S. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE


CYNTHIA W.,
Plaintiff and Appellant,
v.
A.S.,
Defendant and Respondent.

A149143

(San Mateo County
Super. Ct. Nos. FAM0131848 & FAM131530)

Cynthia W. appeals from an order denying her request to include her two children in a restraining order issued as to her under the Domestic Violence Prevention Act. (Fam. Code, § 6200 et seq. (DVPA). ) We affirm.
In January 2016, Cynthia W. sought a domestic violence restraining order against her husband, A.S. In her supporting declaration, she described an October 27, 2015, incident in which A.S. “shoved [her] violently across the bathroom, about 7 or 8 feet from doorway to wall, into the bathroom wall,” leaving “an approximate 2 foot hole in the sheetrock.” Cynthia W. claimed the couple’s eight-year-old daughter witnessed the incident from the bedroom and their four-year-old son came into the bathroom, started crying and asked if she was okay. A.S. then left her and the children “crying on the bedroom floor,” and departed from the family home. A.S. remained out of the home until November 13, when he “returned to the family home full time.” Cynthia W. claimed “[m]uch of [her] fear comes from the fact that A[.S.] is acting as though the October 27 . . . incident did not happen.” Cynthia W. further claimed that there was a “long history of episodes of [A.S.’s] uncontrolled anger,” which she said included him breaking things or yelling when he did not get his way, and that A.S. “engaged in controlling” her during their marriage, with A.S. blocking her from a doorway, taking away her phone for a period of time, and setting a code on the home’s thermostat so that “no one in the house can change the temperature except him.”
Cynthia W. asked that a restraining order be issued as to herself, their two children, and Cynthia W.’s mother, and that A.S. be ordered to move out of the home. She also asked the court to order A.S. to complete a 52-week batterer intervention program, attend anger management and parenting classes and to pay for their children’s therapy.
The same day, the court granted a temporary restraining order as to Cynthia W., the children, and Cynthia W.’s mother with no visitation, and ordered A.S. to move out of the family home. The court denied Cynthia W.’s request regarding anger management and parenting classes, and therapy, pending a hearing set for February 10.
On February 10, Cynthia W. filed an application for reissuance of the temporary restraining order. That same day, A.S.’s counsel requested a continuance of the hearing and a modification to the visitation order. The court reissued the temporary restraining order and continued the hearing to March 23.
On March 10, A.S. filed a response to Cynthia W.’s application. In his declaration, A.S. admitted pushing Cynthia W., and although he initially denied this took place in front of either child, he later admitted to the police during an interview that the children witnessed the incident. A.S. stated he had started individual counseling as well as an anger management program. He claimed “[t]his was the first and only incident that has ever occurred between Cynthia and I during the entire ten years of marriage,” that he had “taken responsibility for the October 27th incident,” and “had never been violent towards [the] children.” He maintained the alleged episodes of anger were “overstated,” and mostly due to inadvertence on his part. He claimed he only blocked Cynthia W.’s way temporarily due the couple’s mutual agreement to allow their daughter “the opportunity to soothe herself,” as they were following a method of sleep training with their daughter. He said he took Cynthia W.’s phone away only because the couple had agreed to do so to keep each other from texting while driving. And he said he temporarily locked the thermostat to keep Cynthia W.’s parents from continuously adjusting the temperature.
At the March 23 hearing, the court reissued the restraining order with certain agreed-to modifications while A.S.’s criminal case was pending and continued the matter to June 3.
Both Cynthia W. and A.S. filed briefs prior to the hearing, restating their positions. Cynthia W. asserted a restraining order was “essential to protect . . . the children from the significant probability that [A.S.] will perpetrate future violence.” A.S. maintained he had “taken full responsibility” for the October 27 incident, including voluntarily meeting with the sheriff’s office, pleading no contest to simple assault in his criminal case, and complying with the terms of his plea deal, which required attending additional anger management courses. He also maintained the October 27 incident was “the only instance of any form of violence during the parties’ marriage.”
At the June 3 hearing, the court noted it had met with counsel “in an effort to narrow the issues that would be subject to testimony.” The court took judicial notice of the criminal protective order against A.S. naming Cynthia W. as the protected party, and “in light of this fact and the burden required in a criminal case being higher than the burden . . . in this [DVPA] case, the Court will find, based on this order and further based on the defendant’s plea . . . , that Ms. Cynthia [W.] has met her burden under the [DVPA] to obtain an order under the Act as to her.” The court went on to state that the “purpose of today’s hearing will be to determine whether the parties’ children should also be made protected parties under the [DVPA.]”
Lynn Patner, a contract social worker for child protective services who observed visits between A.S. and the children, testified for A.S. She stated the daughter was initially hesitant to meet with A.S. However, when both children saw their father, they ran to him and hugged him. Thereafter, all the visits went “very smoothly.” She had observed over 20 visits, for over two months. Patner testified that she observed the children hit each other “many times,” but that on one occasion A.S. observed this happen and stated, “ ‘do we want to talk about pushing here? Remember, I made a mistake pushing mommy. That it was not okay.’ ” Patner stated that, based on the approximate 45 to 50 hours she had observed the children, there had been nothing that gave her cause “for concern about Dr. [A.S.] or the children’s interaction with Dr. [A.S.]”
When Cynthia W. started her testimony, the court reiterated it was going to issue a restraining order as to her, and directed the parties to focus on the issue of “whether the children should be made part of that order.” Cynthia W. claimed that, since the October 27 incident, both children had “regressive behavior,” “became much more clingy,” “were more emotional,” and her son was “more physical,” while her daughter was “a little bit more withdrawn” and was “also scared.” She also stated her son hit her daughter, and her daughter said, “ ‘he meant to hit me like daddy hit you.’ ” Cynthia W. claimed it was important to name the children in the restraining order “because they have been negatively impacted by the violence that they have seen,” and “even though there has been anger management and counseling, there hasn’t been a change in [A.S.’s] behavior.” When the court asked why Cynthia W. said there had been no change in conduct, Cynthia W. cited to A.S.’s declaration, claiming it showed he had not taken “ownership of what happened” and had not “start[ed] working towards improving the behaviors of no longer being controlling and no longer blaming or minimizing the victim.”
A.S., in turn, testified his interaction with the children did not materially change after the October 27 incident. He had remained in the home until the criminal no-contact order was issued for Cynthia W. He had observed no regressive behavior, although acknowledged a “very short period of apprehension,” about “two minutes,” with his daughter. After the October 27 incident, he voluntarily started individual counseling and anger management. By the time of the hearing, he also had completed 20 hours of a court-ordered, 32-hour anger management program and had continued with individual counseling. Finally, he claimed he had taken responsibility for the October 27 incident and had “never” denied “what had happened.”
The court found that “based on the evidence presented,” Cynthia W. had “not met her burden that the two children need to be additionally protected parties under the order.” When pressed for findings by Cynthia W.’s attorney, the court stated, “based on the behavior of the parties and what I have gathered from both the testimony and the testimony of . . . [¶] . . . [¶] Ms. Patner, the photographs and testimony of the parties, the Court finds that she has not met her burden that the children were victims of domestic violence. They may have witnessed an incident of domestic violence, but they themselves were not victims.”
Cynthia W. contends the trial court erred when it found the children were not victims of domestic violence and that it abused its discretion in declining to extend the restraining order to include the children.
Under the Family Code, an “order may be issued” for the purpose of preventing domestic violence, abuse, or sexual abuse if evidence shows “to the satisfaction of the court, reasonable proof of a past act or acts of abuse.” (§§ 6220, 6300.) Abuse means any of the following four categories: “(1) To intentionally or recklessly cause or attempt to cause bodily injury. [¶] (2) Sexual assault. [¶] (3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another. [¶] (4) To engage in any behavior that has been or could be enjoined pursuant to Section 6320.” (§ 6203, subd. (a)(1)–(4).) Section 6320, in turn, includes “molesting, attacking, striking, stalking, threatening, sexually assaulting, battering . . . , harassing, telephoning, including, but not limited to, making annoying telephone calls . . . , destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.” (§ 6320, subd. (a).)
We review the grant or denial of a DVPA protective order for abuse of discretion. (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413, 420.) If the issue involves a mixed question of law and fact, we review for substantial evidence if the issue is predominately factual and de novo if predominately legal. (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888.)
Cynthia W. contends A.S. “engaged in conduct which not only placed the parties’ minor children in reasonable apprehension of imminent serious bodily injury to another, but in fact caused the minor children to witness his infliction of serious bodily injury on their mother”; that she presented “substantial evidence” the children were “adversely impacted as a result of their father’s abuse of their mother”; and that the trial court failed to consider the impact of a denial of her request on the children.
However, substantial evidence supports the trial court’s findings to the contrary. Patner and A.S. both testified the couple’s daughter was only briefly hesitant in her first supervised visit with her father, but otherwise happily visited with him. Although Patner observed “many times where the children have hit each other,” none of these instances, or any of the children’s behavior, gave her “any cause for concern.” A.S. presented photographs of the children with him and family members on various outings and field trips, none of which showed the children in any fear. He testified the children were always excited to see him and did not want the visits to end.
Accordingly, the court’s assessment was that “it would appear that the children have not suffered any ill effects nor were victims of domestic violence themselves. They were aware of it. There is no indication that there is any residual-type injury that would differ in any other way, shape or form than any other children of parents who are dissolving their marriage in terms of trauma being endured by these children.” In short, the court credited Patner’s and A.S.’s testimony, an evidentiary determination we do not revisit on appeal.
Cynthia W. also contends the court erroneously imposed a heightened burden on her to show ongoing harm, given the court’s reliance on Patner’s testimony and the recent photographs of the children. However, what the court actually found was that, given “Ms. Patner, the photographs and testimony of the parties, the Court finds that [Cynthia W.] has not met her burden that the children were victims of domestic violence. They may have witnessed an incident of domestic violence, but they themselves were not victims.” (Italics added.) Nothing in the record suggests the court was unaware of the proper legal standards, and the evidence about which Cynthia W. complains was properly admitted as circumstantial evidence supporting the trial court’s findings.
Finally, as for Cynthia W.’s assertion that simply witnessing an act of domestic violence qualifies as abuse under the DVPA, she has cited no authority. Instead, she references dependency cases suggesting that “spousal abuse is harmful to the children, and that children suffer secondary abuse when they witness violent confrontations between their parents.” She acknowledges this rationale does not extend to the “family law arena,” but nevertheless asks this court to extend the rationale “to all cases where domestic violence is at issue.” We decline to do so.
Cynthia W.’s reliance on Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389 (Torres-Hernandez), and specifically Justice Streeter’s concurring opinion, is misplaced. In that case, the mother sought a permanent restraining order for herself and a modification to include her children. The mother testified the defendant yelled at her in front of the children, physically and emotionally abused her, broke into her home multiple times, called her hundreds of times, and had, since the initial restraining order, hit the children with both his hands and objects, including shoes and a belt. (Id. at pp. 393–395.) The trial court ruled the abuse of the children was irrelevant to the abuse the mother had suffered and was insufficient to support a finding of continued abuse as to her. It also declined to modify the restraining order to include the children. (Id. at p. 395.)
The Court of Appeal reversed, holding renewal of a DVPA restraining order does not require a showing of continued abuse, and, in any case, the defendant’s conduct after issuance of the initial restraining order, constituted abuse under the DVPA. It also held evidence of the abuse of the children was relevant to renewal and modification of the order. (Torres-Hernandez, supra, 1 Cal.App.5th at pp. 397–401.) In his concurring opinion, Justice Streeter stated evidence that the children had suffered abuse was “plainly” relevant to support a modification of the order. He noted social sciences studies support the “correlation between abuse against a parent and abuse against the children of that parent,” and literature shows “in 30–60 percent of families where either child abuse or spousal abuse exists, both forms of the abuse exist.” (Id. at p. 402 (conc. opn. of Streeter, J.), italics omitted.) Given that the “overlap between children witnessing domestic violence and being abused themselves has been widely documented,” the trial court should have, in Justice Streeter’s view, recognized that “the interests of the children are, as a practical matter, bound up with the interests of their mother under the relevant statutory standard.” (Id. at p. 403 (conc. opn. of Streeter, J.).)
Unlike in Torres-Hernandez, in the instant case there was no evidence the children were ever physically abused. Accordingly, its analysis does not pertain to either the issuance of the protective order as to Cynthia W., or the denial of a modification to include the children.
DISPOSITION
The trial court’s order granting a restraining order as to Cynthia W. and denying a restraining order as to the couple’s children is affirmed. Each party to bear its own costs on appeal.
 




_________________________
Banke, J.


We concur:


_________________________
Humes, P.J.


_________________________
Dondero, J.























A149143, Cynthia W. v. A.S.