In re E.L. CA2/4 ( 2021 )

Filed 1/13/21 In re E.L. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re E.L. et al., Persons B304401
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No.
19CCJP07849)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
V.L.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Daniel Zeke Zeidler, Judge. Affirmed in part,
reversed in part and remanded with directions.
Lisa A. Raneri, under appointment by the Court of Appeal,
for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Acting
Assistant County Counsel, Brian Mahler, Deputy County
Counsel for Plaintiff and Respondent.
The juvenile court exercised dependency jurisdiction over
the two children of V.L. and ordered them removed from his
physical custody and placed with their mother, M.A. V.L.
challenges the restraining order issued to protect M.A. and their
children from him. He contends the court erred by imposing the
restraining order for four years and naming his children as
protected individuals. We remand for the imposition of a
restraining order with a duration of three years and affirm the
order in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
On the night of December 3, 2019, V.L. and M.A. argued
because V.L. was intoxicated. He began yelling, throwing things
and slamming doors. M.A. feared he would awaken their
children, aged eight and five years old. She handed V.L. his keys,
told him to sleep in the car or in the garage, and locked him out
of the house. V.L. managed to reenter the home, and M.A. called
the police. Officers arrived, and V.L. calmed down.
The next morning, V.L. was still intoxicated from the night
before and stayed home from work. He claimed to have no
memory of what had happened, but he told the children their
mother had called the police on him. Hearing that, M.A. said she
was going to take the children and leave. V.L. grabbed a handgun
and ammunition from a case and repeatedly threatened to
commit suicide. The children cried and implored him not to kill
himself. When V.L. went into the bathroom, M.A. left with the
children. She telephoned the police. Arriving officers confiscated
V.L.’s firearm.
2
On January 7, 2020, M.A. obtained a temporary restraining
order protecting her and the children from V.L. The order was to
expire on the date of the jurisdiction hearing.
At the jurisdiction hearing on January 23, 2020, V.L signed
a waiver form and pleaded no contest. The juvenile court
sustained the dependency petition as amended and found V.L.’s
alcohol abuse prevented him from caring for the children, and his
behavior on December 4, 2019 placed them at risk of serious
physical harm within the meaning of Welfare and Institutions
Code section 300, subdivision (b)(1). 1
The juvenile court then proceeded with the disposition
hearing and M.A.’s request for a permanent restraining order.
V.L was in general agreement with the case plan but opposed
M.A.’s request for a restraining order. He urged the court to
implement instead a mutual stay-away order. V.L argued he was
taking steps to address his alcohol abuse by participating in AA
meetings, individual counseling, parenting classes, and drug and
alcohol testing. At the very least, V.L asked that the restraining
order not include the children and be imposed for one year, rather
than three years. The court stated, “My usual restraining order is
for five years.” V.L. requested the court to consider an order of
shorter duration.
At the conclusion of the disposition hearing, the juvenile
court declared the children dependents of the court and ordered
the children to remain removed from V.L. and placed with M.A.
The court also ordered appropriate services for the parents and
visitation for V.L. to be monitored by the Department of Children
and Family Services (Department).
1 Further statutory references are to the Welfare and
Institutions Code, unless otherwise indicated.
3
The juvenile court granted M.A.’s request for a restraining
order to protect her and the children from V.L., noting the
“serious nature of the original incident, including the possession
of a firearm.” The order was to expire on January 22, 2024 and
“to mirror” the conditions of the temporary restraining order,
including the Department’s ability to liberalize V.L.’s visitation in
writing.
V.L. timely appealed.
DISCUSSION
A. The Juvenile Court Lacked Jurisdiction To
Issue a Four-Year Restraining Order
Section 213.5 enables a juvenile court to issue an order to
protect a dependent child and the child’s caregiver once a
dependency petition has been filed. In pertinent part, the statute
provides that the juvenile court may enjoin “any person” from
“contacting, either directly or indirectly, by mail or otherwise,
coming within a specified distance of, or disturbing the peace” of
any child or parent. (§ 213.5, subd. (a); see Cal. Rule of Court,
rules 5.620(b) & 5.630.)
The juvenile court’s restraining order against V.L. directed
him to stay away from and not contact M.A. and the children,
except as stated in the visitation orders.2 The order was to expire
in four years.
2 Specifically, with respect to M.A. and the children, the
January 23, 2020 pre-preprinted order (form JV-255) restrained
V.L. from having “5.a. (2) [c]ontact either directly or indirectly in
any way, including but not limited to, in person, by telephone, in
4
V.L. contends the court lacked jurisdiction to issue a
restraining order in excess of the three-year limitation of section
213.5, subdivision (d). The Department takes no position on the
issue, thereby implicitly conceding the point.
Our review of the juvenile court’s order is de novo. (In re
Destiny D. (2017) 15 Cal.App.5th 197, 205.) The resolution here is
straightforward. Section 213.5, subdivision (d)(1) permits the
juvenile court to issue an order which “shall remain in effect, in
the discretion of the court, no more than three years, unless
otherwise terminated by the court, extended by mutual consent of
all parties to the restraining order, or extended by further order
of the court on the motion of any party to the restraining order.”
(Italics added.) Thus, the plain language of the statute mandates
an initial maximum three-year term. (See Maricela C. v. Superior
Court (1998) 66 Cal.App.4th 1138, 1143-1144 [court should give
the words of a statute “their ordinary, everyday meaning,” and
neither interpretation nor construction is required where the
language “is without ambiguity, doubt, or uncertainty”].) Because
neither section 213.5 nor any case authority we are aware of
confers discretion on the court to set an initial duration of the
writing, by public or private mail, by interoffice mail, by e-mail,
by text message, by fax or by other electronic means[,] [¶] except
by visitation as indicated [in attached schedule]. [¶] b. must stay
away at least . . . 100 yards from . . . (1) [M.A. and the children]
except for visitation as indicated . . . . (2) home of [M.A. or the
children]. (3) job or workplace of [M.A. or the children]. (4) vehicle
of [M.A. or the children]. (5) school of [M.A. or the children]. (6)
the children’s school or childcare.” Additionally, V.L. “must NOT
take any action to get the address or location of [M.A. or the
children] or the addresses or locations of the family members,
caregivers, or guardians of [M.A. or the children].”
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restraining order beyond three years, the court exceeded its
jurisdiction in issuing a four-year restraining order.3
We remand for the juvenile court to issue a new restraining
order with an expiration date no later than January 22, 2023.
Upon the filing of that new order, the existing restraining order
will be deemed vacated. Nothing in this opinion precludes the
juvenile court from extending the duration of the new restraining
order upon a motion by a party to the order. (See § 213.5, subd.
(d)(1).)
B. The Juvenile Court Did Not Err By Including the
Children as Protected Persons
Appellate courts have applied the substantial evidence
standard to determine whether sufficient evidence supported the
factual findings for a restraining order and the abuse of
discretion standard to determine whether the court properly
issued the restraining order. (In re N.L. (2015) 236 Cal.App.4th
1460, 1466.) The practical differences, however, between the two
3 Although the juvenile court did not mention section 213.5
in granting the restraining order, M.A.’s pre-printed request
(form JV 245) and the order itself both referenced the statute. We
conclude the basis for the order was section 213.5, subdivision (a)
as opposed to the court’s inherent power to issue orders
protecting a child or a parent. (See In re M.B. (2011) 201
Cal.App.4th 1057, 1064 [juvenile court may prevent violence by a
parent against a social worker under statute allowing employers
to protect their employees, as well as under its inherent power to
issue injunction].) “In a dependency [action] . . . the court has the
inherent authority to prevent abuses that could undermine the
proper administration of justice.” (Ibid.)
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standards are insignificant. (Ibid.) “If there is substantial
evidence supporting the order, the court’s issuance of the
restraining order may not be disturbed.” (Ibid.)
A juvenile court has broad discretion under section 213.5 to
implement restraining orders to protect a dependent child or
caregiver during the proceedings. Issuance of a restraining order
under the statute does not require evidence that the restrained
person has previously harmed the child. (In re B.S. (2009) 172
Cal.App.4th 183, 193.) Rather, the order should issue if failure to
do so might jeopardize the child’s safety. (Id. at p. 194.)
V.L. contends the court improperly included the children as
protected persons in the restraining order. He argues a
“restraining order naming only [M.A.] as a protected person and
the juvenile court’s assumption of dependency jurisdiction, with
its attendant orders removing [the children] from [V.L.] and
limiting [V.L.] to monitored visitation with the children, provides
the children sufficient judicial protection.” V.L. maintains any
future incident could not involve a gun, because the restraining
order prohibits him from possessing or in any way obtaining a
firearm.
According to V.L., this case is similar to In re C.Q. (2013)
219 Cal.App.4th 355, which involved a father who was the subject
of a restraining order protecting his three children, ages, 11, 12
and 16, from him. (Id. at pp. 357, 362-363.) During an argument,
the father punched the mother’s arm. (Id. at p. 358.) Their
twelve-year-old daughter stepped between her parents and asked
the father to stop. (Ibid.) The father then left the home. (Ibid.)
None of the children expressed fear of the father or wanted him
to leave. (Id. at pp. 358-359.) Our colleagues in Division One
concluded the single incident of the father’s domestic violence
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was insufficient evidence to support the inclusion of the three
children in the restraining order. (Id. at pp. 365-366.)
Here, the evidence before the juvenile court was quite
different. V.L. had a history of alcohol abuse. On December 29,
2013, he was convicted of driving under the influence of alcohol.
When interviewed initially in this case, V.L. told a Department
social worker that he had experienced an alcohol problem “for the
past 15 years” and still drank six to eight beers daily.
Interviewed again on December 26, 2019, V.L. described his
alcohol consumption as “casually drink[ing],” consuming two to
three drinks a day.
V.L. also had a history of emotionally abusing M.A. when
he was intoxicated, at times in front of the children. A year
earlier, M.A. and the children left the house for several months
because V.L.’s anger and drinking were out of control. On the
night of December 3, 2019, he was drunk, ranting and belligerent
toward M.A. The following morning, still intoxicated, V.L. told his
five and eight-year-old children that M.A. “had called the police
on him.” When she voiced her intention to leave, V.L. retrieved a
gun and threatened to kill himself, terrifying his extremely young
children. V.L. had threatened to commit suicide in the past, but
he had never pulled out a gun.
Evidence that V.L. minimized his chronic alcohol abuse just
a month before the jurisdiction hearing, emotionally abused M.A.
and his children, experienced an alcohol-fueled rage prompting
him to threaten suicide using a gun, and engaged in dangerous
conduct even after the police had come to his home hours earlier,
supported a reasonable inference he may jeopardize the safety of
his very young children if they were not included in the
restraining order.
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We applaud V.L.’s expressed concerns for his children and
his efforts to address his alcohol abuse. Nonetheless, he has
failed to demonstrate the juvenile court erred by including the
children in the restraining order. Sufficient evidence supports the
issuance of the order protecting the children and M.A. from him.
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DISPOSITION
The matter is remanded to the juvenile court for the
issuance of a restraining order on the same terms as the
restraining order filed on January 23, 2020, but with an
expiration date of January 22, 2023. Upon the filing of the new
restraining order, the existing restraining order shall be deemed
vacated. Nothing herein precludes the juvenile court from
extending the term of the new restraining order pursuant to
Welfare and Institutions Code section 213.5, subdivision (d)(1), or
other applicable law. The remaining orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
WILLHITE, Acting P.J.
COLLINS, J.
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