Opinion
B318210
09-19-2023
In re BRYSON H., a Person Coming Under the Juvenile Court Law. v. TYNISHA P., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Melania Vartanian, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 21CCJP04869A, Rudolph A. Diaz, Judge. Affirmed.
Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Melania Vartanian, Deputy County Counsel, for Plaintiff and Respondent.
PERLUSS, P. J.
The juvenile court in November 2021 declared then-10-month-old Bryson H. a dependent child of the court and removed him from the custody of his mother, Tynisha P., after sustaining a petition pursuant to Welfare and Institutions Code section 300, subdivision (a) (serious physical harm) and former subdivision (b)(1) (failure to protect), alleging that Tynisha had a history of violent and assaultive behavior that endangered the child's physical safety, created a detrimental home environment and placed Bryson at a substantial risk of serious physical harm. Two months later the court granted a request for an order restraining Tynisha from contacting Los Angeles County Department of Children and Family Services emergency response children's social worker (CSW) Kristy Brown and requiring Tynisha to remain a minimum of 100 yards from Brown. Appealing the restraining order, but not the jurisdiction findings or out-of-home placement of Bryson, Tynisha contends the juvenile court applied an incorrect legal standard and there was insufficient evidence the order was necessary to ensure Brown's safety.
Statutory references are to this code.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Tynisha's Verbally Assaultive Response to the Detention of Bryson
CSW Brown first had contact with Tynisha in late August 2021 after the Department was informed a caller had contacted the child protection hotline requesting information about safely surrendering a seven-month-old child. When told the child was not eligible for safe surrender, the caller, who identified the mother as Tynisha and the child as Bryson, asked what other options were available because the mother was overwhelmed and could not care for the child. Brown interviewed Tynisha at her home two days later (after several unsuccessful attempts to do so). Tynisha denied wanting to safely surrender Bryson.
On September 1, 2021 Brown advised Tynisha through an exchange of text messages that she was investigating whether Bryson was safe and properly cared for in the family home and intended to work with Tynisha to try to avoid opening a case. However, Brown cautioned, "I can't say what will happen. I have to complete the investigation." Two weeks later Brown spoke with Tynisha via cellphone to obtain additional information. Before disconnecting the call, Tynisha said to Brown, "Is that all you wanted, Stupid Ass Bitch." Later that day Brown and another CSW made an unannounced visit to Tynisha's home. Tynisha was not there and in subsequent telephone communications expressed her displeasure at social workers coming to the residence without prior notice. In her October 21, 2021 detention report Brown noted that Tynisha's behavior seemed to change following this incident and after a request had been made for information about Bryson's father. The report also stated Tynisha had exhibited similar behavior during an earlier investigation involving one of Bryson's older half-siblings, noting, "[M]other would often make threats, was hostile and emotionally unstable, violent, verbally abusive and has poor impulse control which was exhibited in the presence of child Ayden."
On September 22, 2021 Tynisha texted Brown, asking her to see if Bryson's father, Marcus H., was willing to take custody of the child. When Brown contacted Marcus the following day, he stated he wanted nothing to do with the situation, explaining Tynisha had tried to burn down his home, vandalized his car and harassed members of his family. Marcus stated, "This person is unstable and dangerous. I want nothing to do with her and do not call me again." The Department subsequently confirmed that Marcus had obtained a restraining order to protect him from Tynisha. On the same day, after speaking with a supervising CSW, Tynisha declined to participate in a safety plan, and then said to Brown, "You are a sneaky bitch telling people what happened and that is why I have a problem with you. You are not going to take my baby."
On October 14, 2021 the Department obtained an order authorizing Bryson's removal from Tynisha's custody. Brown, another CSW and a sheriff's detective went to Tynisha's home to serve the removal order. As detailed in the detention report, when Brown handed Tynisha a copy of the removal order and advised her of the date and time for the detention hearing, Tynisha said, "You're a stupid ass bitch that's why I don't like you, you always doing weird shit." After Tynisha threw the documents at Brown, the detective asked Tynisha to talk to him off to the side. A search of the home determined the child was not present (and no one else was in the home). Tynisha approached Brown and said, "Wait until I catch your ass in the streets. I am going to hurt you bad. I am going to dog walk your ugly ass. You really have no idea who you are fucking with. I will find your address, and I am going to beat your ass bitch." When Brown cautioned Tynisha that her threats would be documented, Tynisha responded, "I do not give a fuck. I am going to get your ass bitch so what I don't care." Until Brown went downstairs in the apartment complex away from Tynisha's unit, leaving the second CSW and the detective to inquire about Bryson, Tynisha continued to scream at her.
Later in the day Brown, having learned that Bryson was being cared for by a respite family through a nonprofit organization, left the Department office in Santa Fe Springs to pick up the child. Again as detailed in the detention report, approximately two blocks from the office, Brown noticed a vehicle rapidly approaching her car. Brown switched lanes to allow the vehicle to pass; but the vehicle, which Brown saw was being driven by Tynisha, stopped in the middle of the street, blocking Brown's path. Tynisha then threw a large object at Brown's car, causing the windows to shake. Brown reversed her car and proceeded back to the Santa Fe Office with Tynisha following her. Brown had to brake to avoid a collision. Tynisha got out of her vehicle and began banging and kicking Brown's car. Brown called the 911 emergency number and the supervising CSW for assistance. Tynisha approached Brown, who had remained in her vehicle, and said, "Bitch I told [you] I was gone [sic] come get you and you know I will find out where you live. Get out the car scary ass bitch. You took my son? You playing with my life! That is my life! You playing with my life so I am going to fuck up yours."
Bryson was safety taken into protective custody by a different CSW on October 14, 2021.
2. The Request for Restraining Order
The Department filed a dependency petition on behalf of Bryson on October 18, 2021. On October 20, 2021 Brown, represented by a deputy county counsel, filed a request for restraining order using Judicial Council mandatory form JV-245, Request for Restraining Order-Juvenile. The request identified Kristy Brown, CSW III, as the petitioner, stated the child was the subject of a petition filed under section 300, checked the box reflecting that Brown was the social worker in the matter, and marked additional boxes stating Tynisha had assaulted or attempted to assault Brown; caused, threatened or attempted bodily injury on Brown; caused Brown to fear physical or emotional harm; and stalked Brown. The request repeated the detention report's description of the interaction between Tynisha and Brown on October 14, 2021 and noted that Tynisha was the subject of another restraining order for acts of violence.
The JV-245 request form identified Brown as the petitioner. However, the deputy county counsel who prepared the form identified himself as the attorney for DCFS, and the juvenile court referred to the "restraining order as requested by the Department."
The court issued a temporary restraining order on October 21, 2021 and set the hearing on the request for a permanent order for November 10, 2021. The hearing was continued several times to permit proper service to be made, and the temporary restraining order remained in place until January 28, 2022.
3. The Permanent Restraining Order
At the outset of the January 28, 2022 hearing the court took judicial notice of all its prior findings in the case, which included the jurisdiction findings involving Tynisha's history of assaultive behavior. Brown then testified that Tynisha had threatened to harm her when she attempted to serve the removal order for Bryson, warning Brown she was "going to catch me on the street and find out where I live." Tynisha's threats, Brown continued, caused her fear and alarm. Brown also described Tynisha's subsequent vehicle pursuit, her attack on the car Brown was driving, and Tynisha's repeated verbal threats, as detailed in the detention report. As a result of Tynisha's actions, Brown had not returned to work since October 14, 2021; and she testified she was afraid to go back without a permanent restraining order in place.
Brown also testified, when Tynisha became aggressive and threatened her, to deescalate the situation she walked away and let the other social worker and detective continue to handle the matter.
On cross-examination Brown conceded she had not had any contact with Tynisha since the incidents on October 14, 2021. However, Brown testified she received emails from Department administrators that Tynisha had contacted them and wanted Brown to return her calls. Brown had not done so.
In an interview summarized by the Department in its jurisdiction/disposition report, Tynisha denied threatening Brown or using abusive language during their October 14, 2021 interactions. Tynisha did not testify at the January 28, 2022 hearing on the restraining order.
Arguing for issuance of a three-year restraining order, the Department's counsel explained that Brown was no longer assigned to Bryson's case, which permitted Tynisha to obey the outstanding temporary restraining order while working toward reunification with Bryson; but counsel nonetheless urged that a permanent order was necessary to ensure Brown's safety. Tynisha's lawyer, in contrast, insisted, because Brown was no longer assigned to the case, there was no evidence to support a finding that a permanent restraining order was needed to protect Brown, emphasizing there had been no contact between the two of them since October 14, 2021.
The court issued a three-year restraining order, finding the evidence established that Brown "continues to experience and have reasonable and serious fear for her safety." Explaining that the social worker "needs protection now until we are satisfied that Mother is no longer a threat to her," the court expressly authorized Tynisha to request to modify or terminate the order in the future once she could demonstrate she "has learned to control her emotions and reactions as demonstrated on several occasions." The court ordered Tynisha to have no direct or indirect contact with Brown; to stay a minimum of 100 yards from her, as well as from her home, work and vehicle; and to take no actions to obtain Brown's address or location.
Tynisha filed a timely notice of appeal.
DISCUSSION
1. Governing Law and Standard of Review
Section 213.5, subdivision (a), authorizes the juvenile court to issue a temporary order after a dependency petition has been filed enjoining an individual from "contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the child's current or former social worker." Pursuant to section 213.5, subdivision (d)(1), after notice and a hearing the court may issue an order authorized by subdivision (a) as a permanent restraining order for up to three years. California Rules of Court, rule 5.630(e)(1) provides at the hearing for a restraining order "[p]roof may be by the application and any attachments, additional declarations or documentary evidence, the contents of the juvenile court file, testimony, or any combination of these."
Issuance of the restraining order does not require evidence of previous infliction of physical harm; nor does it require evidence of a reasonable apprehension of future physical abuse. (In re Bruno M. (2018) 28 Cal.App.5th 990, 997; In re C.Q. (2013) 219 Cal.App.4th 355, 364.) It is sufficient to show that the restrained person disturbed the peace of the protected individual. (In re S.G. (2021) 71 Cal.App.5th 654, 671; In re Bruno M., at p. 997; see Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389, 401.) "In this context, disturbing the peace means '"conduct that destroys the mental or emotional calm of the other party."'" (In re Bruno M., at p. 997; accord, In re S.G., at p. 671.)
"'[A]ppellate courts apply the substantial evidence standard to determine whether sufficient facts supported the factual findings in support of a [section 213.5] restraining order and the abuse of discretion standard to determine whether the court properly issued the order.' [Citation.] When an appellant challenges 'the sufficiency of the evidence, . . . [i]f there is substantial evidence supporting the order, the court's issuance of the restraining order may not be disturbed.'" (In re S.G., supra, 71 Cal.App.5th at pp. 670-671; accord, In re A.M. (2019) 37 Cal.App.5th 614, 619; In re Carlos H. (2016) 5 Cal.App.5th 861, 866.)
2. The Juvenile Court Did Not Apply an Incorrect Legal Standard
Tynisha contends the juvenile court erred by basing its order on CSW Brown's subjective fear, not the objective danger she faced-that is, the court did not consider whether the failure to grant the order would actually jeopardize Brown's safety. This argument misperceives the broad scope of section 213.5, which, as discussed, is not limited to safeguarding the protected individual from physical violence but authorizes a restraining order to protect a social worker's mental or emotional calm. Or as phrased slightly differently by the court in In re A.M., supra, 37 Cal.App.5th 614, a restraining order is proper if there is sufficient evidence it is necessary to maintain the "emotional and psychological safety" of the protected individual by prohibiting the specified conduct. (Id. at p. 619.)
Of course, CSW Brown's testimony concerning her fear of Tynisha following the verbal assault and threats at Tynisha's apartment and the physical attack and additional threats later that day described her subjective reaction to Tynisha's conduct. But that evidence, together with Brown's testimony concerning Tynisha's conduct, was precisely what was needed by the court to determine whether to issue a restraining order under this portion of section 213.5.
3. Substantial Evidence Supported Issuance of the Restraining Order
Twice on October 14, 2021-on separate occasions and in different locations-Tynisha threatened to physically attack Brown, first telling her, "I am going to hurt you bad," and "I am going to beat your ass bitch," and later, after chasing Brown and throwing an object at her car, warning her, "I will find out where you live," and promising, "You playing with my life, so I am going to fuck up yours." In addition, the evidence at the January 28, 2022 hearing included the juvenile court's jurisdiction findings that Tynisha had a history of violent and assaultive behavior other than with Brown, specifically prior threats made by Tynisha to Bryson's father, as well as vandalizing his car (slashing his tires) and attempting to burn his home. As discussed, Brown testified she remained afraid of Tynisha and, because of her fear, had been unable to return to work.
Notwithstanding this overwhelming-and unchallenged- evidence in support of a no-contact, stay-away restraining order, Tynisha contends there was insufficient evidence the order was necessary because she had ceased her misconduct. Tynisha points to the fact that she had not tried to have physical contact with Brown after October 14, 2021 (ignoring her attempts at phone contact) and asserts in her appellate brief (without citation to the record) this cessation of efforts at physical contact was "just as she did not continue her outbursts against her children's fathers over time." While this may demonstrate that Tynisha is willing to obey a restraining order-the temporary order Brown obtained after the October 14 threats of violence and the domestic violence restraining order protecting Marcus from Tynisha-it does nothing to suggest that Brown's fear of retribution from Tynisha in the absence of such an order was unjustified.
Substantial evidence supported the juvenile court's finding that Tynisha's conduct reasonably caused Brown to seriously fear for her safety. It was well within the court's discretion to issue the three-year restraining order to protect Brown.
DISPOSITION
The January 28, 2022 order is affirmed.
We concur: FEUER, J., MARTINEZ, J.