Filed 8/22/22 In re J.J. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

Kevin J. (Father) appeals a dispositional order made by the dependency court denying him visitation with the two children he shares with T.F. (Mother), five-year-old Jacob J., and eight-year-old Joyce J. (Minors). In making its order, the juvenile court relied upon a five-year stay-away domestic violence restraining order (DVRO) that was then and now in effect enjoining Father from having any contact with the Minors, as well as another half sibling, adult Jade J., whom he sexually abused. Given these facts, the juvenile court concluded that visitation would be detrimental to Minors. Mother and Minors are members of and live within the territory of the Round Valley Indian Tribes (the Tribe). The DVRO was issued by a court of that jurisdiction. Father argues the juvenile court mistakenly concluded it lacked jurisdiction to modify the DVRO or to issue a conflicting order permitting visitation. Father also challenges the factual basis of the detriment finding.

We will affirm. The juvenile court correctly understood that honoring the full faith and credit of the DVRO and its issuing court meant denying visitation in this case. The record on which the DVRO issued also supplies substantial evidence supporting the court’s detriment finding.

• I. BACKGROUND

On August 19, 2021, the Minors and their half sibling, 14-year-old Johenna J. (collectively, the Minor Children), were detained by the Mendocino County Department of Social Services, Family and Children’s Services (Department), after Mother began suffering symptoms of a major mental health crisis. Mother displayed dangerous behavior in the presence of the Minors and failed to provide for and protect the Minor Children. The events took place in tribal housing. Mother’s dangerous behavior included shooting a neighbor with a BB gun, burning her backyard, and wandering the neighborhood making strange statements. When social workers and tribal staff tried to speak with her, Mother was uncooperative, argumentative, and acted and spoke manically. She had not been providing food for the Minor Children or cleaning the house in which they lived. She considered setting fire to her backyard a “controlled burn.” The Minor Children were distressed. Jade, their adult half sibling, had been helping out by providing food and paying bills. Johenna appeared depressed, had been staying in her room, and had cut off all her hair.

The Department filed a Welfare and Institutions Code section 300 petition,[1] naming Mother and Father as respondents. Count (b‑5) alleged failure to protect against Father, asserting he was currently incarcerated for sexually abusing Jade; he is precluded from contacting the Minors as a result of the DVRO; and he has not seen the Minors for one year.

The DVRO, issued by the Tribal Court for the Round Valley Indian Tribes on Judicial Council form DV‑130, entitled “Restraining Order After Hearing (Order of Protection),” restrains Father from contacting Mother, the Minors, and Jade (collectively, the Protected Persons), as of September 29, 2020, through September 29, 2025. It describes Father’s relationship to Mother as “ex-boyfriend.” It enjoins Father from contacting the Protected Persons by any means, and includes a stay-away order enjoining Father from coming within 100 yards of them or their schools. Subsection (6)(b) of the form, entitled “Personal Conduct Orders,” allows “[p]eaceful written contact through a lawyer or process server or another person for service of legal papers related to a court case . . . .” The box next to subsection (6)(c), entitled “Exceptions,” is NOT checked. Were it checked, the DVRO would have permitted “[b]rief and peaceful contact” with the Protected Persons “as required for court-ordered visitation of children.” Similarly, the box next to subsection (7)(b), also entitled “Exceptions,” includes the same language and is also NOT checked. (Were this box checked, it would have permitted contact under the same conditions and for the same purpose but in contravention to the Stay-Away Order section of the DVRO.) As a result, the DVRO does not contemplate any contact between Father and the Protected Persons for any reason. The only permitted contact is indirect contact, such as by a lawyer or process server. The DVRO also enjoins Father from entering the Round Valley Indian Reservation during its duration without prior approval of the Tribal Council or Tribal Court.

The basis for the DVRO is revealed in a felony abstract of judgment, attached to the jurisdiction report by the Department, indicating Father was convicted of violating Penal Code section 261.5(c) for unlawful sexual intercourse with a minor (Jade J.). For that offense, Father was sentenced to a term of two years eight months in state prison.

Father attended the combined jurisdiction/disposition hearing by phone, which was held on November 9, 2021. At the hearing, Father’s counsel made an offer of proof that if called to testify, Father would state that he is a safe and supportive father to his biological children and was shocked to learn of Mother’s behavior given he otherwise believed her to be an appropriate caregiver. Father’s counsel further represented that Father “understands that he’s not able to visit with the [Minors] due to the [DVRO], but upon release, he will be looking forward to obtaining any classes that the [Department] asks him to take so that he can try to reunify with his children.” At the conclusion of the hearing, Father’s counsel requested the court modify the DVRO so that Father could utilize services and visit with the Minors.

The court declined to modify the DVRO. The court observed that “t’s a jurisdictional issue. [The Tribal Court is] a sovereign court.” The court explained that given that the DVRO precludes contact between Father and Minors throughout the entire period of reunification, it was concerned about ordering services to begin with. The court further found that given the facts supporting the DVRO, any contact between the Minors and Father would be detrimental to their welfare. As a result, it ordered no visitation between Father and Minors. The court explained that Father was free to seek modification of its order by first appearing before the tribal court that issued the DVRO, have it modified, and then return to juvenile court to petition to modify the finding of detriment and the corresponding no-visitation order.

1. [i]Standards of Review

We independently review the juvenile court’s interpretation of its jurisdiction. (In re Ari S. (2021) 69 Cal.App.5th 1125, 1131.)

A factual finding that visitation would be detrimental is reviewed for substantial evidence. (In re Mark L. (2001) 94 Cal.App.4th 573, 580–581, disapproved on other grounds in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.)

2. The Court Correctly Gave Full Faith and Credit to the Tribal Court’s DVRO

Father argues the juvenile court mistook the limits of its jurisdiction and incorrectly concluded it did not have the power to modify the DVRO.

Father first relies upon California Rules of Court, rule 5.445(c)(2). This rule requires every superior court to adopt a local rule that, inter alia, includes the following provision: “Modification. [¶] A procedure by which the court that has issued a criminal court protective order may, after consultation with a court that has issued a subsequent child custody or visitation order, modify the criminal court protective order to allow or restrict contact between the person restrained by the order and his or her children.” Although Father concedes that this Rule does not explicitly refer to orders made by tribal courts, “it does strongly suggest the juvenile court has the jurisdiction, authority and duty to modify domestic violence orders to either accommodate or restrict visitation.”

Father’s interpretation of this rule is incorrect because it would conflict with federal law. Pursuant to title 18 United States Code section 2265, subdivision (a), entitled “Full faith and credit given to protection orders,” “Any protection order issued . . . by the court of one State, Indian tribe, or territory . . . shall be accorded full faith and credit by the court of another State, Indian tribe, or territory . . . and enforced by the court and law enforcement personnel of the other State, Indian tribal government or [t]erritory as if it were the order of the enforcing State, Indian tribe, or territory.” The juvenile court thus lacked the power to issue an order permitting visitation because doing so would fail to give full faith and credit to the DVRO and its issuing court.

Next, Father’s relies upon In re B.S. (2009) 172 Cal.App.4th 183. There, as a result of a domestic violence incident, a criminal protective order was issued restraining father and protecting mother and the child from harassment. (Id. at pp. 186–187.) Soon after (upon notice and opportunity to be heard), the juvenile court issued a subsequent restraining order, protecting mother, the child and an additional party (the maternal grandmother). (Id. at p. 188.) Its order acknowledged that the criminal court’s order is entitled to precedence, and that law enforcement must enforce the criminal restraining order to the extent there is any conflict with the juvenile restraining order. (Ibid.) The Court of Appeal did not find father’s arguments persuasive that he was confused by having two different restraining orders. (Id. at p. 192.) Father cites to a portion of the opinion in which the appellate court did acknowledge “the Legislature has clearly provided that a criminal court restraining order and a juvenile court restraining order must be allowed to coexist.” (Id. at p. 193.) But In re B.S. is easily distinguished. There, two state restraining orders were being challenged. Here, Father asked a court of one sovereign jurisdiction to issue an order that would conflict with a domestic violence restraining order issued by a court of another sovereign jurisdiction. Contrary to Father’s contention, In re B.S. does not stand for the proposition that a juvenile court is empowered to issue a visitation order that conflicts with a preexisting stay-away order issued by a court of a foreign sovereign.[2]

3. Substantial Evidence Supports the Detriment Finding

Father cites In re J.N. (2006) 138 Cal.App.4th 450, 456–457 for the proposition that being incarcerated does not automatically entail a finding of detriment; to the contrary, as a presumed father, Father argues he was entitled to visitation. Although Father concedes he was convicted of a sexual crime involving Jade J., he nevertheless insists visitation should have been ordered with Minors because they were not the victims of any abuse by Father.

Father quotes the following from In re J.N., which we reproduce directly from his brief because it shows why Father’s argument fails. There, the Court of Appeal held: “Section 361.5, subdivision (e)(1) provides that if a parent is incarcerated, the court shall order reasonable services unless the court determines, by clear and convincing evidence, that services would be detrimental to the child. In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the nature of the crime, and the degree of detriment to the child if services are not offered.” (In re J.N., supra, 138 Cal.App.4th at pp. 456–457, italics added.)

Father is incorrect that the juvenile court relied upon the mere fact of Father’s incarceration in making its detriment finding. Rather, the court properly considered “the nature of the crime,” i.e., that he sexually abused Minors’ half sibling. Father’s authority merely requires the juvenile court to consider the “nature of the crime” when exercising its discretion to consider making a detriment finding. Here, the court most certainly did. Father cites no authority holding the trial court was required to authorize visitation in spite of the DVRO and the underlying facts that led to its issuance. Ample authority exists to the contrary. (See In re I.J. (2013) 56 Cal.4th 766, 778–779; see also Los Angeles County Dept. of Children & Family Services v. Superior Court (2013) 215 Cal.App.4th 962, 968 [“Cases overwhelmingly hold that sexual abuse of one child may constitute substantial evidence of a risk to another child in the household—even to a sibling of a different sex or age or to a half sibling.”].)

• III. DISPOSITION

The juvenile court orders are affirmed.

STREETER, J.

WE CONCUR:

POLLAK, P. J.

BROWN, J.

[1] Subsequent undesignated statutory references are to the Welfare and Institutions Code.

[2] Father makes an additional argument intended to show that the DVRO is not governed by the Indian Child Welfare Act (25 U.S.C. § 1902 et seq.) (ICWA). This argument is a red herring. Our analysis regarding the juvenile court’s obligation to give full faith and credit to the DVRO relies on federal law, but does not turn on whether the DVRO is governed by ICWA.