In re D.G. CA2/1 ( 2020 )

Filed 8/17/20 In re D.G. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re D.G., a Person Coming Under B301091
the Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY
Super. Ct. No. 19LJJP00605)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
ORDER MODIFYING
Plaintiff and Respondent,
OPINION AND DENYING
PETITION FOR REHEARING
v.
(NO CHANGE IN JUDGMENT)
E.G.,
Defendant and Appellant.
THE COURT:
The opinion in the above-entitled matter filed on July 29,
2020 is modified:
On page 12, the following sentence is deleted:
“And in D.G.’s presence, Father stabbed furniture,
and broke the mother’s phone.”
That sentence is replaced with the following sentence:
Father also stabbed furniture and broke the mother’s
phone.
This modification does not constitute a change in the
judgment.
The petition for rehearing filed on August 7, 2020 by
appellant E.G. is denied.
____________________________________________________________
__
ROTHSCHILD, P. J. CHANEY, J. BENDIX, J.
2
Filed 7/29/20 In re D.G. CA2/1 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re D.G., a Person Coming Under B301091
the Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY
Super. Ct. No. 19LJJP00605)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
E.G.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Steven E. Ipson, Juvenile Court Referee. Affirmed.
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, and Jacklyn K. Louie, Principal
Deputy County Counsel, for Plaintiff and Respondent.
E.G. (Father) appeals from the jurisdiction and disposition
orders declaring his son, D.G., a dependent of the court under
Welfare and Institutions Code section 300, subdivisions (a) and
(b)(1),1 and removing D.G. from Father’s custody. Father also
appeals from the permanent restraining order against him.
He contends that the juvenile court erred in failing to grant
his request for a continuance of the jurisdiction and disposition
hearing to allow him to retain private counsel and that the court
should have excluded D.G. from the permanent restraining order.
We disagree and affirm.
FACTUAL BACKGROUND
The family consists of Father, the mother, F.G. (the
mother), their child, D.G. (born in August 2018), and D.G.’s
half sibling, I.G. (born in 2017).2 The parents have never
been married or lived together. For the entirety of Father’s
relationship with D.G.’s mother, he has been married to another
woman, and together they have nine children.
On July 11, 2019, the family came to the attention of the
Los Angeles County Department of Children and Family Services
(DCFS) based on allegations of Father’s ongoing physical abuse
of the mother while the children were present. The latest abuse
reported was a June 21, 2019 incident, alleging that Father, a
former gang member, had punched the mother multiple times
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise specified.
2 The children in this case have the same mother but
different fathers. Father is D.G.’s biological father and I.G.’s
father is A.A. Only Father and D.G. are parties to this appeal.
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and had threatened to harm her and the maternal grandfather
if she reported the abuse.
On July 12, 2019, the family law court granted the
mother an emergency temporary restraining order against
Father, prohibiting him from any contact with the mother and
the children.
When interviewed by the DCFS investigator, the mother
reported that after she obtained the restraining order, she and
the children left the state because she was afraid that Father
would find her and retaliate against her. She also disclosed that
she and Father had been in a relationship for about two years,
and although he did not live with her, he visited her apartment
daily. She stated that he was very jealous and had been
physically and verbally abusive to her throughout their
relationship. She disclosed that in January 2019 her neighbor
had called the police after overhearing the mother screaming and
one of the children crying. Although Father had been abusing
the mother at the time, when the police responded to the call, the
mother denied the abuse because she was afraid of Father.
As for the June 21, 2019 incident that resulted in the
report to DCFS, the mother stated that Father had accused her
of cheating on him, and he pushed and punched her several
times in the face and cursed at her. The children were present
during the incident. The mother did not initially call the police
after the incident because she was afraid that Father would
follow through with his threat to hurt the maternal grandfather,
but after the mother observed two-year-old I.G. act out the
June 21 event by mimicking a punch and pain, she decided to
report Father. She stated that she planned to seek a permanent
restraining order against him.
3
The mother’s coworker corroborated that the mother had
bruises. He also observed that when Father came to the mother’s
workplace, they would argue, and the coworker stated that
the mother eventually disclosed the domestic violence in her
relationship with Father.
When the social worker interviewed Father, he stated that
he and the mother had problems in their relationship because
he had refused to leave his marriage. He denied physically
or verbally abusing the mother or threatening her with harm.
Father claimed that the mother had issues with jealously and
that she engaged in self-harm. He denied “domestic violence”
in the relationship with his wife and their children.
On August 22, 2019, DCFS filed a section 300 petition
on behalf of 12-month-old D.G., as well as his two-year-old
half sibling, I.G., based on the allegations of Father’s ongoing
domestic violence against the mother in the children’s presence
and the mother’s failure to protect them by allowing Father to
have access to the children. The petition further alleged that
Father’s conduct endangered the children’s physical health and
safety and placed them at substantial risk of serious physical
harm. A copy of the July 12, 2019 emergency protective order
against Father was also attached to the petition.
The parents appeared at the detention hearing on
August 23, 2019, and the court appointed Father counsel.
Father’s counsel objected to the child’s detention from Father;
alternatively, she asked for unmonitored visitation. Father’s
counsel represented that Father denied any physical abuse in
the relationship and believed that the mother had inflicted
the injuries on herself. The court found prima facie evidence
to detain D.G. from Father and ordered the child released to
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the mother. The court ordered that Father have weekly
monitored visits.
The court also took jurisdiction of the restraining order
proceedings, and on August 26, 2019, held a hearing on the
mother’s request for a temporary restraining order against
Father. Father’s appointed counsel appeared at that hearing,
opposed the restraining order, and asked the court to exclude
D.G. from the order. The court, however, granted a temporary
restraining order (TRO) covering both children and scheduled
the hearing for a permanent restraining order for September 23,
2019, the date of the jurisdiction and disposition hearing.
The jurisdiction/disposition report revealed that Father
had a criminal history including arrests for robbery, a conviction
for battery and was arrested for inflicting corporal injury on the
mother on June 21, 2019.
When the dependency investigator re-interviewed the
mother, she described that Father attempted to control every
aspect of her life, including how she dressed and with whom
she interacted. The mother also reported multiple incidents of
physical violence before and after D.G.’s birth. She disclosed that
once, while she was holding six-month-old D.G., Father struck
her in the face causing her to bleed from the mouth. The mother
further reported that Father “stab[ed]” furniture and broke
her phone after he learned that it contained photographs of her
injuries.
Father also was re-interviewed, and he continued to deny
physically assaulting the mother; he repeated that the mother’s
injuries were self-inflicted.
On September 23, 2019, the date set for the combined
jurisdiction, disposition, and restraining order hearings, Father
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and his counsel, the mother and her counsel, and counsel for
DCFS were present. Before the hearing began, Father asked
to replace his appointed counsel, and the court conducted a
Marsden3 hearing. At the hearing, Father expressed that he
was unhappy with his appointed counsel because he did not
like her advice. The court denied Father’s request, expressing
that it did not appear that his lawyer had been ineffective or that
the communication between them had broken down.4 Father’s
counsel then informed the court, “My client is requesting a
continuance for him to hi[re] private counsel,” without specifying
how long a continuance he was requesting or providing any other
information on the subject. The court denied the request,
commenting that this was the day scheduled for the hearings.
The court then asked all counsel if they were ready to
proceed, and they all answered in the affirmative. After the
presentation of the evidence, which consisted solely of DCFS’s
reports, DCFS and the children’s counsel urged the court to
sustain the petition and remove D.G. from Father. Father’s
counsel argued that the court should dismiss the petition,
pointing to Father’s denials, the absence of evidence of domestic
violence in his long-term marriage, and the fact that no one
witnessed the abuse. His counsel also reiterated Father’s
position that the mother fabricated the domestic violence claims.
Father’s counsel also asked that the restraining order request be
denied, and in the alternative, the court not include D.G. as a
protected person, noting that if the court took jurisdiction, it
3 See People v. Marsden (1970) 2 Cal.3d 118.
4 On appeal, Father has not challenged the trial court’s
denial of his Marsden request.
6
could protect the child by ordering monitored visitation for
Father.
The court sustained the section 300 petition under
subdivision (b)(1), declared the children dependents of the court,
and removed custody of D.G. from Father, and ordered that he
remain placed with the mother. The court also granted a three-
year restraining order that included D.G. as a protected person
with a carve-out for Father’s monitored visitation.
Father timely appealed.
DISCUSSION
Father asserts that the court erred in failing to grant
a continuance of the hearings to allow him to retain private
counsel and that the court should have excluded D.G. from
the permanent restraining order. We disagree.
A. Trial Court Did Not Abuse its Discretion by
Denying Father’s Request for a Continuance
A juvenile court’s order denying a continuance is reviewed
for an abuse of discretion. (In re A.B. (2014) 225 Cal.App.4th
1358, 1366.) The test for abuse of discretion is “ ‘ “ ‘whether the
trial court exceeded the bounds of reason. When two or more
inferences can reasonably be deducted from the facts, the
reviewing court has no authority to substitute its decision for
that of the trial court.’ ” [Citations.]’ [Citation.] The abuse
of discretion standard warrants that [appellate courts] apply
a very high degree of deference to the decision of the juvenile
court.” (In re J.N. (2006) 138 Cal.App.4th 450, 459.)
The jurisdiction hearing on a section 300 petition must be
held within 30 days of the filing of the petition. (§ 334 [“[u]pon
the filing of the petition, the clerk of the juvenile court shall
7
set the same for hearing within 30 days . . . from the date of
the order of the court directing such detention”]; see also In re
Daniel S. (2004) 115 Cal.App.4th 903, 913–914.)
The court, however, may continue the hearing beyond
30 days if the continuance is not contrary to the interest
of the child. (§ 352, subd.(a)(1) [“the court may continue any
hearing . . . beyond the time limit within which the hearing
is otherwise required to be held, provided that a continuance
shall not be granted that is contrary to the interest of the
minor”].) The hearing may be continued beyond 60 days only
in exceptional circumstances, but in no case beyond six months.
(§ 352, subd. (b).)
In considering the child’s interests, the court shall give
substantial weight to the child’s need for prompt resolution
of the child’s custody status, the need to provide a child with
a stable environment, and where there is a temporary placement,
the damage to a child of such a placement. (§ 352, subd. (a)(1).)
Father asserts that he demonstrated good cause for his
request for a continuance to retain private counsel because such
counsel was critical to the preservation of his parental rights
and would not have prejudiced D.G. because the child remained
placed with the mother. Although we agree with Father that
the facts do not show extreme prejudice to the child because
he remained with his custodial parent, prompt resolution of a
child’s status is in a child’s best interest, as evidenced by the
code sections limiting the time period for granting continuances.
Further, the denial of a continuance may be justified if it would
cause disruption to the proceedings. (See, e.g., In re V.V. (2010)
188 Cal.App.4th 392, 398; see also In re Giovanni F. (2010)
184 Cal.App.4th 594, 603–604 (Giovanni F.).) That is the case
8
here. Father made his Mardsen motion and request for a
continuance on the date of the hearings without earlier notice
to the court or the parties. Further, Father was, or should have
been, aware that his request to replace his counsel might not
be granted, but made no showing that he had even explored
retaining private counsel. The inconvenience to all counsel
in having to return at a later date and again prepare for the
hearings, as well as the court’s need to manage its calendar
in an extremely busy court, justified denial.
We find support for our opinion in Giovanni F., where the
father sought a continuance to substitute his attorney after the
jurisdictional hearing had begun. The juvenile court “denied
the request, citing section 352 and noting the [adjudication] had
commenced, there had been ample time for [the father] to hire
an attorney and, given [the child]’s age, it would not be in his
best interests to continue the hearing.” (Giovanni F., supra,
184 Cal.App.4th at pp. 603–604.) The appellate court held that
refusing a continuance was not abuse of discretion, stressing
that continuances are discouraged in dependency cases and
that no continuance may be granted that is contrary to the child’s
interests. (Id. at p. 604.) Prior to the jurisdictional hearing the
child was detained with the grandmother and remained placed
with her afterwards. The court concluded that the child was
entitled to a timely resolution of his custody status and that
the father waited more than a month from setting this hearing
to request the substitution of counsel. (Id. at p. 605.)
The factual differences between this case and Giovanni F.
are not legally significant. In both cases the child was living with
a relative and thus would not have suffered serious prejudice
from a continuance. And although here, unlike in Giovanni F.,
9
the hearings had not yet begun, all parties were present and
ready to proceed, making the inconvenience to parties and
court comparable to Giovanni F. Under these circumstances,
Father has not convinced us that the court abused its discretion
in denying his request for a continuance.
B. The Court Did Not Err in Including D.G. as a
Protected Person in the Permanent Restraining
Order
The dependency court has broad discretion to issue
restraining orders protecting a dependent child and any caregiver
during the pendency of a case (§ 213.5, subd. (a)). Issuance of a
restraining order under section 213.5 does not require evidence
that the restrained person has previously harmed the child.
(In re B.S. (2009) 172 Cal.App.4th 183, 193.) Instead, a court
may, under section 213.5, issue a restraining order in favor of
a child if a failure to make the order might jeopardize the safety
of the child. (In re B.S., supra, at pp. 193–194.)
Courts have applied both substantial evidence and
abuse of discretion standards of review to restraining orders.
(In re N.L. (2015) 236 Cal.App.4th 1460, 1466.) On appeal,
however, there is no practical difference between the two
standards since “ ‘we 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.’ ” (Ibid.)
Father argues that including D.G. as a protected person
in the restraining order was unnecessary because there was
no evidence that Father would harm the child. We disagree.
10
Father relies on In re C.Q. (2013) 219 Cal.App.4th 355,
where the court reversed a restraining order against the father,
which included three children (ages 11, 12, and 16), and where
the facts showed that domestic violence did not occur in the
children’s presence. (Id. at p. 357.) Father also relies on
In re N.L., supra, 236 Cal.App.4th 1460, where the trial court
exercised jurisdiction over a six-year-old child based on sustained
allegations that the mother abused drugs and had made false
allegations that the father had sexually abused the child. (Id.
at. p. 1462.) The only evidence in the case regarding the mother’s
possible danger to the child was that she had threatened the
father. Nonetheless, the trial court granted the father’s request
for a TRO protecting himself as well the child. The appellate
court reversed the order protecting the child because there
was no evidence that the mother had engaged in any violent or
dangerous conduct toward the child, made any threats of such
conduct, or that the mother’s violent conduct or threats to the
father occurred in the child’s presence. (Id. at p. 1469.)
These cases do not persuade us. D.G. is significantly
younger than the children involved in In re C.Q. and In re N.L.
And, because the children in those cases were older, they could
summon help if their parents engaged in dangerous or harmful
behavior. In contrast, D.G. is a preverbal toddler, entirely
dependent on adults for care. Moreover, unlike the children in
the cases on which Father relies, D.G. was present when Father
physically assaulted the mother. Father’s other violent and
erratic behavior in D.G.’s presence distinguishes this case from
those cases where the appellate courts have reversed restraining
orders which included children.
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Father’s case is more comparable to In re B.S., supra,
172 Cal.App.4th 183, where the court affirmed the inclusion of
an infant in a restraining order. There, the court concluded that
the father’s “tendency to resort to violence” and “lack of impulse
control” posed a risk to the child’s safety even in the mother’s
absence. (Id. at p. 194.) Although Father argues that he never
harmed or threatened the child, as in In re B.S., “[s]uch a threat
could arise, even in the mother’s absence if the father got angry
with another adult or with [the child].” (Ibid.) Here, Father’s
lack of impulse control and violent tendencies are shown by his
numerous physical assaults on the mother, including at least
once while she was holding D.G. And in D.G.’s presence, Father
stabbed furniture, and broke the mother’s phone. As in In re
B.S., Father’s lack of control and violent tendencies endangered
D.G. even absent the mother’s presence. Consequently, the
juvenile court reasonably concluded that Father jeopardized
the safety of D.G. It therefore did not abuse its discretion in
including D.G. in the restraining order.
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DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
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