Filed 3/16/18 In re D.R. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT


In re D.R., a Person Coming Under the Juvenile Court Law. H044722
(Santa Clara County
Super. Ct. No. JD24367)

SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN’S SERVICES,

Plaintiff and Respondent,

v.

A.R.,

Defendant and Appellant.


Appellant A.R. (father) challenges a juvenile court restraining order protecting his two-year-old daughter, D.R. (the child). He claims that the juvenile court erred in granting the child’s request for a restraining order against him because she was already adequately protected by criminal protective orders protecting the child’s mother and by the juvenile court’s dispositional order requiring supervised visitation. We reject his claim and affirm the court’s order.



I. Background
The child is the fourth child of mother and father. Father has a lengthy history of alcohol abuse that has precluded him from providing care for the children. He also has a criminal history of driving under the influence and domestic violence. Father was convicted of spousal battery in 2009. The three older children of father and mother were removed from their custody in 2012 (prior to the child’s birth) due to father’s domestic violence against mother and violent physical abuse of the eldest child. Father had hit, punched, and kicked the eldest child, and he had battered mother and burned her with a cigarette. The other children had witnessed father’s violence. Father did not participate in any services after the children were removed. Mother was provided with reunification services, but her efforts were inadequate. In 2014, their parental rights to the three older siblings were terminated. That same year, father was convicted of misdemeanor domestic violence, and mother became pregnant with the child.
In January 2015, while mother was pregnant with the child, an eyewitness saw father put a knife to mother’s throat in a public place and force her into a car. When the police arrived and interviewed both mother and father, they denied that this event had occurred, though they admitted to having had an argument. In January 2015, father was convicted of misdemeanor battery and felony dissuading a witness and sentenced to a year in jail. Criminal protective orders were issued barring father from contacting mother. The child was born in July 2015, while father was in jail, and he remained in jail for most of her first year of life.
After father’s release from “about a year” in jail, mother allowed father to live with her and the child despite the existence of the criminal protective orders. Father nearly completed a 52-week batterer intervention course that was required as a condition of his probation. On January 30, 2017, father was arrested for violating his probation by living with mother in violation of the criminal protective orders. Mother subsequently sought and obtained modifications to the criminal protective orders to permit peaceful contact between her and father.
Mother told the social worker that father was no longer violent because, after his release from jail, he had stopped drinking and started attending church with her. She admitted that father had been visiting the child in her home, and she saw no risk to the child in father having access to the child. However, she initially denied that father had been living with her even though the social worker pointed out father’s clothes in her closet. Mother first claimed those were her clothes and then admitted they were father’s clothes but claimed that they had been in her possession for a long time. Mother eventually admitted that father had been living with her and the child from November 2016 to January 2017. Father admitted that he had been living with mother and the child, and he told the social worker that he “has a close relationship” with the child. Father also told the social worker that he was attending AA meetings while in jail, but he provided no proof of his attendance.
On February 28, 2017, the Department filed a petition under Welfare and Institutions Code section 300, subdivisions (b) and (j) asking the court to take jurisdiction over the child, who was then 19 months old. At the time of the petition, father remained in jail. The child was detained only from father’s custody; she was released to mother’s custody. The jurisdictional hearing was originally set for March 22. The Department was recommending that reunification services be provided to mother and that “services for the purpose of enhancing his visitation” be provided to father. The hearing was continued, and the court asked counsel “to be prepared to address at our next hearing . . . what if any juvenile court restraining order should be issued.” The court explained: “[A]s I see the situation it appears that there’s still significant denial as well as ambivalence on the part of the parents regarding the history of domestic violence and so if I’m being asked to leave with the child with [mother], the question is what steps can I take to ensure that the child is not exposed to further domestic violence. Both of the criminal protective orders authorize peaceful contact, but I will need to hear argument from the Department and counsel as to whether that is sufficient to ensure that [the child] not be exposed to domestic violence.” At an April 4 hearing, the Department requested a continuance to assess whether continued contact between mother and father might warrant a change in its dispositional recommendation. The child’s trial counsel told the court that she was not seeking a restraining order “at this point” because father remained in custody. “However, my office will continue assessing the situation and will request it if we believe it is necessary.” The hearing was continued.
Mother told the social worker that father had tried to call her a couple of times from jail, but she had not accepted his calls. Both mother and father subsequently claimed that they had talked on the phone just once while he was in jail. The social worker then obtained recordings of 80 telephone conversations between father and mother while he was in jail. On at least one occasion, mother had put the child on the phone to talk to father. It was clear from the conversations that mother and father intended to continue their relationship after his release from jail.
Father was released from jail on April 6, 2017; he remained on probation. He declined to provide the social worker with his address or to identify his employer. Father told the social worker that he was working in construction in the San Francisco area. He had two supervised visits with the child between his April release from jail and the May jurisdictional hearing. Father was offered more visits, but he was not available for them. He refused to discuss his domestic violence with the social worker or to identify any of the “basic concepts” he had been taught in the batterer’s intervention program. Father admitted “physical discipline” of the child’s eldest sibling, yet he denied that he had inflicted any injuries.
At an April 13, 2017 hearing, the Department told the court that it would be amending the petition. The court set the contested jurisdictional hearing for May 19. Father’s trial counsel informed the court that father had been released from jail, and the child’s trial counsel made an oral request for a restraining order protecting the child from father “due to the fact father has been released from jail.” She noted that father had “violated a previous restraining order” and had never participated in services. Mother had a history of allowing father contact with the child in her home in violation of restraining orders. Father’s trial counsel opposed the request on the ground that there had been no domestic violence since January 2015, which was before the child was born. The Department argued that the parents’ dishonesty about their communications while father was in jail supported a concern that mother would allow father unmonitored access to the child in her home. The court found that “there is reasonable proof of past acts of abuse involving family violence, either to the mother or to the child’s siblings,” and it granted a temporary restraining order, which allowed contact only for court-ordered visitation. A hearing on the restraining order was set to coincide with the jurisdictional hearing.
On April 20, 2017, the child’s trial counsel filed a written request for a restraining order against father protecting the child. This request was based on (1) father’s January 2017 violation of the restraining order protecting mother, (2) his history of domestic violence against mother and physical abuse against the child’s eldest sibling, and (3) the fact that father was no longer incarcerated, and mother had a history of allowing him to live with her in violation of restraining orders. The request sought a restraining order that, like the temporary restraining order, permitted peaceful contact for court-ordered visitation with the child. Father filed written opposition to the request in which he claimed that there was no showing of a risk to the child nor was there a showing that the failure to issue the order would “jeopardize the safety” of the child.
At the May 19, 2017 contested jurisdictional hearing, the court heard evidence on jurisdiction at the same time as it heard evidence on the restraining order request. The social worker testified that children who are exposed to domestic violence are at risk of both physical and emotional harm in addition to cognitive and developmental delays. She believed that the child was at “[s]ubstantial risk of physical harm” due to father’s physical abuse of her sibling, domestic violence against mother, substance abuse, and mother’s criminal behavior. The social worker also testified that she believed a restraining order was necessary to protect the child from father. The intensity of father’s violence against mother and the child’s eldest sibling combined with his failure to complete services aggravated the risk to the child.
Although father had enrolled in a batterer intervention program in 2016, he had yet to complete the program, having completed 48 of the required 52 classes. He had never participated in a parenting “with use of nonviolent tactics” course. Father had provided no verification of any participation in a substance abuse program. This omission was particularly concerning because his prior violence had been associated with his alcohol abuse. The fact that mother and father lied to the social worker about their “almost daily contact” while he was in jail was also troubling. Their plan to continue their relationship created a serious danger to the child from renewed domestic violence. The child’s “extremely anxious attachment” to mother suggested that the child had been exposed to domestic violence. Father’s violation of the criminal protective orders was also “extremely concerning . . . .”
Father testified that he had engaged in domestic violence since he was 12 years old “since I . . . didn’t have the conscience back then that I have now.” He testified that he had not participated in “Parenting Without Violence” or “NA/AA meetings” yet because he had been told that “it would be better for me to finish one class before starting another one so I wouldn’t get everything mixed up in my head.”
The court took jurisdiction over the child under section 300, subdivisions (b) and (j). It found: “In this case, the repeated nature of the domestic violence, the severity of the domestic violence, father’s flagrant disregard for domestic violence protective orders, coupled with the fact that the parents are still a couple and the Court has received insufficient evidence of remediation, all leads to the inescapable conclusion that Court jurisdiction is necessary.” It also granted the child’s request for a restraining order and issued a three-year restraining order protecting the child from father. “[T]he court finds that [the child] is at substantial risk of physical harm from her father and that his past conduct causes a reasonable apprehension of imminent serious bodily injury to the child.” The restraining order prohibited contact except for court-ordered supervised visitation twice a week for two hours.
On May 20, 2017, father was arrested for driving under the influence and violating his probation. He remained in custody thereafter and expected to be committed to state prison. The Department changed its recommendation as to father and recommended that he be offered reunification services. At the May 31 dispositional hearing, the court removed the child from father’s custody and ordered family maintenance services for mother and reunification services for father.
The court also “revisit[ed] the issue of the juvenile restraining order . . . .” The child’s trial counsel argued that a restraining order was justified because the child had “a reasonable apprehension of bodily injury” due to father’s past domestic violence and physical abuse of her sibling. The court reaffirmed its restraining order: “Court has no doubt that a restraining order is needed to ensure [the child]’s safety. In fact, Court believes there’s a compelling need for a juvenile restraining order to ensure [the child]’s ongoing protection.” Father timely filed a notice of appeal from the court’s orders.

II. Analysis
“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, upon application in the manner provided by Section 527 of the Code of Civil Procedure or in the manner provided by Section 6300 of the Family Code, if related to domestic violence, the juvenile court has exclusive jurisdiction to issue ex parte orders (1) enjoining any person from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying the personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the child or any other child in the household.” (§ 213.5, subd. (a).) The juvenile court’s April 2017 temporary restraining order was issued under section 213.5, subdivision (a). Section 213.5, subdivision (d) permits the juvenile court to issue a three-year restraining order on the same basis after notice and a hearing. (§ 213.5, subd. (d).) The court’s May 2017 three-year restraining order, which is the order that father challenges on appeal, was issued under section 213.5, subdivision (d).
Father contends that the juvenile court’s May 2017 restraining order is not supported by substantial evidence. The substantial evidence standard of review is a deferential one. “ ‘[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.’ ” (In re N.L. (2015) 236 Cal.App.4th 1460, 1466.)
“Issuance of a restraining order under section 213.5 does not require ‘evidence that the restrained person has previously molested, attacked, struck, sexually assaulted, stalked, or battered the child.’ [Citation.] Nor does it require evidence of a reasonable apprehension of future abuse. [Citation.] . . . [S]ection 213.5 is analogous ‘to Family Code section 6340, which permits the issuance of a protective order under the Domestic Violence Prevention Act . . . if “failure to make [the order] may jeopardize the safety of the petitioner . . . .” [Citations.]’ ” (In re C.Q. (2013) 219 Cal.App.4th 355, 363-364 (C.Q.).)
Father accepts that we review the record to determine whether there was substantial evidence to support a finding that the failure to issue a restraining order “ ‘ “may jeopardize the safety” ’ ” of the child. (C.Q., supra, 219 Cal.App.4th at p. 364.) He claims that no such finding could be made because (1) there was no evidence that the child feared father, (2) there was no evidence that father had engaged in any domestic violence since his release from jail in 2016, (3) mother’s criminal protective orders protected herself and her home, and (4) the court’s dispositional order required father’s visits to be supervised. In father’s view, these facts eliminated any safety concerns.
We disagree with father’s view of the facts. The child, who was less than two years old and nonverbal, could not express any concerns that she might have had about father. Her extremely anxious attachment to mother suggested that she had been exposed to father’s domestic violence at some point. The fact that there were no confirmed reports of father’s domestic violence during child’s lifetime was hardly definitive given that he was incarcerated for much of the child’s life and that mother had a history of lying to cover up his misconduct. The criminal protective orders had proven ineffective in keeping father from having unsupervised contact with the child because mother was not willing to enforce them and had in fact had them modified to permit father to have contact with her. While the court’s dispositional order required father’s visits to be monitored, mother’s continued relationship with father posed a serious risk that father would have contact with the child outside of monitored visits since the child was in mother’s custody. Father was in custody off and on during the proceedings, but the juvenile court could not be assured that he would remain incarcerated throughout the dependency proceedings. It was unclear how long father would remain in custody after the dispositional hearing.
Father analogizes the facts of this case to the facts in C.Q., supra, 219 Cal.App.4th 355. In C.Q., the mother obtained a juvenile court restraining order requiring the father to stay away from her, the family home, and their three minor daughters except during monitored visitation. The father challenged only the portion of the order protecting the children on the ground that it was not necessary. The order was based on two incidents of domestic violence against the mother. The father and the mother were separated but continued to live together. (C.Q., at p. 358.) In July 2012, the father hit the mother in the arm in the presence of their 12-year-old daughter. (Ibid.) This daughter moved between them and told the father not to hit the mother. The father responded by leaving the house. (Ibid.) The previous incident had occurred a year earlier and had also involved the father hitting the mother’s arm. (C.Q., at pp. 358-359.) The father had also punched the mother’s adult son on a separate occasion in 2012. (C.Q., at pp. 360.) The three daughters, the youngest of whom was 11 years old, were protective of the father and did not fear him. (C.Q., at p. 364.)
The Second District Court of Appeal found that there was not substantial evidence to support the inclusion of the three daughters in the restraining order. “The portions of the restraining order Father does not challenge require Father to stay away from Mother and the family home where Mother and the children live. 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.” (C.Q., supra, 219 Cal.App.4th at p. 364.) Under these circumstances, the Second District concluded that there was no need to include the three daughters in the restraining order.
C.Q. is not on point here. The mother in C.Q. was no longer in a relationship with the father, and she was one who sought the restraining order. She could be expected to enforce the provisions requiring the father to stay away from both her and the family home. In contrast, here mother remains in a relationship with father, and she actively and successfully sought modifications to the criminal protective orders so that father would not be required to stay away from her and her home. Her history of lying to protect father meant that she could not be relied on to enforce any restrictions on father. In addition, the father in C.Q. had engaged in two or three instances of low-level domestic violence over a short period of time, while father in this case has a long history of extremely serious domestic violence and has also perpetrated serious physical abuse of the child’s sibling. We have no difficulty in this case in finding substantial evidence that father’s violent tendencies present a safety risk to the child that has not been ameliorated by the modified criminal protective orders or the dispositional order.

III. Disposition
The order is affirmed.






_______________________________
Mihara, J.



WE CONCUR:






_____________________________
Elia, Acting P. J.






_____________________________
Greenwood, J.