Opinion
B304444
02-16-2021
In re SIMON B. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff, v. SAMAR B., Defendant and Appellant, RAEL B., Respondent.
Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Patricia K. Saucier, under appointment by the Court of Appeal, for Respondent. No appearance for Plaintiff.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19CCJP04504AB) APPEAL from an order of the Superior Court of Los Angeles County, Julie Blackshaw, Judge. Affirmed. Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Patricia K. Saucier, under appointment by the Court of Appeal, for Respondent. No appearance for Plaintiff.
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After sustaining amended allegations of domestic violence and inappropriate physical discipline by Samar B., the juvenile court declared his two sons, 11-year-old Simon B. and seven-year-old Shoumen B., dependents of the juvenile court, removed the children from Samar's care and custody and released them to their mother, Rael B., under the supervision of the Los Angeles County Department of Children and Family Services (Department) with family maintenance services for Rael and family enhancement services including monitored visitation for Samar. At Rael's request the court issued a restraining order pursuant to Welfare and Institutions Code section 213.5 protecting her and the two children from Samar. On appeal Samar challenges only the inclusion of the children in the restraining order, arguing there was insufficient evidence he had harmed or would harm his sons. We affirm.
Statutory references are to this code.
FACTUAL AND PROCEDURAL BACKGROUND
1. Detention of the Children from Samar
The Department filed a dependency petition pursuant to section 300, subdivisions (a) (serious physical harm), (b) (failure to protect) and (j) (abuse of sibling), on July 16, 2019, alleging that Samar and Rael had a history of violent altercations in the presence of Simon and Shoumen, including an incident witnessed by Simon in which Samar choked Rael, and that Samar had physically abused Simon by slapping him.
The detention report indicated the family came to the attention of the Department after police officers responded to a domestic violence call in mid-June 2019. The report stated Samar had been convicted in May 2018 of inflicting corporal injury on a spouse and had on multiple occasions violated the no-contact criminal protective order issued in that case. Although noting Samar was participating in a domestic violence program, based on his ongoing violations of the criminal protective order and history of violence, the social worker categorized as "high" the risk of future abuse.
A prior referral following a domestic violence incident in May 2018 was closed as inconclusive. Rael stated at the time that she intended to return to Bangladesh, where she and Samar had married, to file for divorce. The social worker told Rael, if she reconciled with Samar once back in the United States, the Department would likely seek removal of the children.
At the detention hearing on July 17 and 19, 2019 the court detained the children from Samar, released them to Rael and ordered monitored visitation for Samar. The court also granted Rael's request for a temporary restraining order against Samar, protecting Simon and Shoumen, based on Rael's declaration that Samar had "a history of physically assaulting and stalking the mother and the children." Rael was not included in the order because the court determined she was adequately protected by the restraining order from the criminal case in effect through October 2021. The temporary restraining order was reissued several times at Rael's request until her request for a permanent restraining order was heard following the jurisdiction/disposition hearing.
2. The Jurisdiction/Disposition Hearing
The October 4, 2019 jurisdiction/disposition report and last minute information filings dated October 4, 2019, December 13, 2019 and January 15, 2020 for the continued jurisdiction/disposition hearing provided a picture of ongoing physical and emotional abuse of Rael by Samar beginning before their arranged marriage in Bangladesh in 2008. Rael stated Samar hit her soon after they were married when she left a camcorder in a taxi and would strike her if she ate before he did because that was not allowed in their culture. His physical abuse continued during her pregnancies with their two children. She did not call the police for many years because she feared Samar and did not understand the extent to which laws in the United States would protect her from her husband.
Describing the May 2018 incident that led to Samar's arrest and conviction for inflicting corporal injury to a spouse, Rael reported that Samar had hit her during an argument after she took change to do laundry. He squeezed her throat with this right hand and scratched her neck with his fingernail. Simon witnessed the violence and heard Rael's screams. Samar pleaded no contest to a misdemeanor charge, but insisted to the social worker that Rael had lied about the incident and denied he had hurt her.
Notwithstanding the criminal protective order, Rael said Samar had forced himself into her apartment on many occasions, insulting and berating her, and in one instance pushing her, in front of the children. She did not call the police because she did not want the children to see officers coming to their home.
Simon told the social worker he had seen his father hit his mother "many times" and described an incident in which Samar picked up a chair and threw it at Rael. Simon worried his father might hit Rael and said he wanted the court to "teach [Samar] a lesson to be kind to my mom and to us." He also said he feared his father, who slapped him and hit him on his body with a belt. Rael confirmed Simon's report that Samar had tied Simon's legs and hands and put him in a dark room as punishment after Simon threw a shoe near his paternal grandfather.
Following a mandatory settlement conference on January 15, 2020 Samar pleaded no contest to the subdivision (b) allegations in an amended section 300 petition. Count B-1 as sustained following Samar's plea stated Rael and Samar "have a history of engaging in physical altercations in the presence of the children. The father was convicted of inflicting corporal injury to a spouse/cohabitant, with mother being the victim in that case. In October 2018, a restraining order was issued restraining the father from contact with the mother. In November 2018 and February 2019, the father violated the restraining order by going to the mother's home and pushing mother. Such conduct by the father against the mother places the children at substantial risk of serious physical harm." Count B-2 as sustained alleged, "On prior occasions, the father Samar B[.] inappropriately physically disciplined the child Simon which places Simon and his brother Shoumen at substantial risk of serious physical harm." The court dismissed the allegations under subdivisions (a) and (j) pursuant to the parties' agreement.
Although nonoffending Rael submitted to the jurisdiction of the juvenile court. After declaring the children dependents of the court, the court ordered them released to Rael under the Department's supervision and removed them from Samar "based on the facts supporting the jurisdictional findings and the facts stated in the Department's evidence," finding by clear and convincing evidence it would be detrimental to the safety, protection or physical or emotional well-being of the children if they were returned to his care. Rael was ordered to participate in a domestic violence support group and individual counseling. The court ordered family enhancement services for Samar with monitored visitation at the Department's offices for at least six hours per week.
3. The Permanent Restraining Order
At the hearing on Rael's request for a permanent restraining order, held immediately following the disposition hearing on January 15, 2020, Samar's counsel stated Samar did not object to issuance of the order to protect Rael. However, his counsel insisted Samar "is a different person than he was when he came in." Counsel pointed to Samar's completion of a 52-week domestic violence program (ordered as a condition of probation) and a report he was doing very well in a parenting course. Emphasizing there had been no inappropriate incidents during Samar's visitation with the children since the dependency proceedings began, counsel argued monitored visitation, together with the court's order that neither parent disparage the other in the children's presence, was sufficient protection for the children.
The court disagreed and issued the restraining order protecting the children, as well as Real. Explaining its ruling, the court stated, "This is a case that involved violence against both the mother and the children. The facts are uncontroverted. The children have been harmed, were frightened by these events. And so I do believe the basis for a restraining order is appropriate."
The court commended Samar for addressing the issues that had brought the family to court and suggested at the next hearing "the judicial officer will be very interested in learning your progress." That initial section 364 review hearing, originally scheduled for July 15, 2020, was continued because of the pandemic to February 17, 2021.
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 any person from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, . . . 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." This provision also permits the court to issue orders protecting "any parent, legal guardian, or current caretaker of the child." After notice and a hearing the court may issue a permanent restraining order for up to three years. (§ 213.5, subd. (d)(1).) California Rules of Court, rule 5.630(f)(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."
Evidence a parent has previously inflicted physical harm on a child is "'certainly sufficient'" to justify the issuance of a protective order. (In re Bruno M. (2018) 28 Cal.App.5th 990, 997; accord, In re B.S. (2009) 172 Cal.App.4th 183, 193.) However, "[i]ssuance 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 protected person. (In re C.Q. (2013) 219 Cal.App.4th 355, 363; accord, In re B.S., at p. 193.) "There need only be evidence that the restrained person 'disturbed the peace' of the protected child." (In re Bruno M., at p. 997; accord, In re E.F. (2020) 45 Cal.App.5th 216, 223, review granted on a different issue June 17, 2020, S260839; see In re B.S., at p. 194.) An order may be issued whenever the "'"failure to make [the order] may jeopardize the safety of the petitioner."'" (In re C.Q., at p. 364; accord, In re N.L. (2015) 236 Cal.App.4th 1460, 1466.)
"We review a trial court's issuance of a restraining order for an abuse of its discretion, and the evidentiary foundation for such an order for substantial evidence." (In re E.F., supra, 45 Cal.App.5th at p. 222, review granted; accord, In re Carlos H. (2016) 5 Cal.App.5th 861, 866.) "Under substantial evidence review, we 'interpret the facts in the light most favorable to the [order], indulge . . . all reasonable inferences in support of the trial court's order,' and do not reweigh the evidence." (In re E.F., at p. 222, review granted; accord, In re Bruno M., supra, 28 Cal.App.5th at p. 997.)
2. The Juvenile Court Did Not Abuse Its Discretion by Including the Children in the Restraining Order
In sustaining the section 300, subdivision (b), allegations in the amended dependency petition, the juvenile court found that Samar's physical abuse of Rael in the presence of their children placed the children at substantial risk of serious physical harm and his inappropriate physical discipline of Simon also created a substantial risk of serious physical harm for both Simon and Shoumen—findings that Samar does not contest. Nothing more than those findings is needed to support issuance of a three-year restraining order under section 213.5, subdivision (d). (See In re E.F., supra, 45 Cal.App.5th at p. 223, review granted; In re Bruno, supra, 28 Cal.App.5th at p. 997.)
Samar's argument that, notwithstanding his past behavior, the restraining order was unjustified because he had not engaged in violent conduct since the beginning of dependency proceedings not only ignores the court's findings but also fundamentally misperceives the purpose of a restraining order. Once Simon and Shoumen were detained, they were protected by a temporary restraining order; and Samar was permitted only monitored contact with the children. The combined benefits of a protective order and limited visitation provided the safeguards the children needed. That is precisely what the juvenile court properly sought to accomplish in exercising its discretion on January 15, 2020 to order monitored visitation for Samar at the disposition hearing and issue a permanent (three-year) restraining order.
"Monitored visitation of a child is not incompatible with a restraining order." (In re N.L., supra, 236 Cal.App.4th at p. 1466; see In re C.Q., supra, 219 Cal.App.4th at p. 363 [permanent 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'"].)
Neither In re C.Q., supra, 219 Cal.App.4th 355 nor In re N.L., supra, 236 Cal.App.4th 1460, cases cited by Samar in which the appellate courts reversed portions of juvenile court restraining orders protecting the dependent children, suggests the court here abused its discretion by including Simon and Shoumen in the restraining order. In In re C.Q., while the father had been violent toward the mother, there was no evidence any acts of violence had occurred in the presence of their three daughters. (In re C.Q., at p. 357.) Although acknowledging their parents argued, the three children, ages 11, 12 and 16, denied any domestic violence and, in fact, pressured their mother not to report the father because they wanted to continue to see him. (Id. at pp. 358-359.) In In re N.L. the mother had threatened the father, but, as the court explained, there was no evidence the mother had engaged in or threatened any violent or dangerous conduct toward the child or that the mother's violent conduct or threats to the father occurred in the child's presence. (In re N.L., at pp. 1468-1469.)
Here, in contrast, there was not only evidence but also an unchallenged finding that Samar had physically abused Rael in the presence of the boys, threatening their physical safety and disturbing their peace within the meaning of section 213.5. (In re Bruno, supra, 28 Cal.App.5th at p. 997 [restraining order upheld on appeal because father "destroyed the peace" of the children through abuse of mother in their presence even though father had not been aggressive toward the children and they were "never in the line of fire"]; see In re E.F., supra, 45 Cal.App.5th at p. 223, review granted [evidence that conduct destroyed the mental or emotional calm of the protected party sufficient for issuance of a section 213.5 restraining order].) Ample evidence supported the juvenile court's decision to include Simon and Shoumen in the restraining order that also protected Rael.
DISPOSITION
The juvenile court's order is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.