In re A.M. CA3 ( 2021 )

Filed 3/16/21 In re A.M. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
In re A. M., a Person Coming Under the Juvenile C092699
Court Law.
SAN JOAQUIN COUNTY HUMAN (Super. Ct. No.
SERVICES AGENCY, STKJVDP20170000382)
Plaintiff and Respondent,
v.
J. M.,
Defendant and Appellant.
Appellant challenges the juvenile court’s restraining order requiring her to stay
away from: (a) her daughters A. M. and K. M. (both dependents of the court under § 300
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of the Welf. & Inst. Code1); and (b) her daughters’ caregivers, arguing there was
insufficient evidence for the order. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
By July 6, 2020, the juvenile court had terminated appellant’s parental rights to
her daughters A. M. and K. M. Also on July 6, 2020, a social worker employed by San
Joaquin County Child Protective Services (CPS) filed in the trial court a request for a
restraining order against appellant, claiming appellant and her “representatives, ha[d]
repeatedly gone to” the home of appellant’s daughters’ caregivers, which “caused the
caregivers to have a reasonable fear for the safety of themselves and the children,” given
appellant’s “documented volatility and mental health struggles.”
In a September 2020 hearing at which appellant appeared telephonically, the social
worker testified she sought the restraining order because, despite “several conversations
with [appellant], as well as [appellant’s] mother . . . , as well as a family friend . . . not to
disturb the caregivers’ home,” all three women “ha[d] visited the caregivers’ home
insisting to see the minors.”
The social worker explained that appellant’s mother lived “[a]bout a mile” from
the caregivers’ home, and that -- though the social worker had previously told appellant’s
mother not to go to the caregivers’ home unannounced -- appellant’s mother went to the
home in December 2019 “to deliver Christmas gifts to the minors.”
Further, though the social worker had asked appellant not to go to the caregivers’
home “[a]pproximately ten times” in the year before the hearing, appellant admitted to
the social worker that she went to the caregivers’ home multiple times, including in April
2020 (when appellant left a gift in the front yard of the home) and on consecutive days in
May 2020, when (appellant told the social worker) appellant’s chase of a vehicle that ran
1 Further undesignated statutory references are to the Welfare and Institutions Code.
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over her dog lead her to the caregivers’ home, and she returned the next day and asked to
see her daughters.
The social worker explained that appellant had a history of being aggressive with
CPS during supervised visits with her daughters, leading to the summoning of law
enforcement and appellant being escorted out of the CPS building. Also, the daughters’
caregivers wanted the restraining order, as contact with appellant made them nervous and
fearful.
Appellant had not been to the caregivers’ home since May 2020, several months
before the court issued a preliminary restraining order in July 2020. The social worker
believed that, in the six months before the September 2020 hearing, appellant had been
living a “transient lifestyle” moving between several states in the Western United States.
The social worker said that appellant’s “behavior” and “mental instability”
“pose[d] a danger in terms of becoming aggressive,” “in the presence of the caregivers, as
well as the minors.”
While the social worker testified, appellant -- who was represented by counsel at
the hearing -- tried to make an objection. The juvenile court told appellant that she would
“have an opportunity . . . to speak” later in the hearing, “[s]o just wait.” Appellant
replied: “Are you okay, sir? You don’t sound -- is someone holding a gun to your
throat?”
Later, appellant testified she was living in Washington state and planned to remain
there “for the rest of [her] life.” She denied that she went to the caregivers’ home on
consecutive days in May 2020. She said the proposed restraining order against her was
“a very disruptive idea for everybody,” as it would be “very difficult” for her, “when
trying to get a job or trying to get housing,” because the restraining order might “pop[] up
on [her] record.”
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Appellant wondered “why anyone would want to do this in this situation,
especially since [appellant] ha[d] no criminal history of hurting anybody.” “I don’t plan
to ever go back” to the caregivers’ house, appellant testified.
On cross-examination, when counsel for CPS asked appellant if she had ever been
to the caregivers’ home, appellant replied: “I don’t want to talk about it. I -- I just want
to have a peaceful day.”
When counsel asked appellant if she brought a gift to the caregiver’s home in
April 2020, appellant replied, “I will not answer that question.”
After the juvenile court told appellant she “need[ed] to answer the question,” and
did not “have a choice” in the matter, appellant replied, “Is someone going to kill me if I
don’t answer?” The juvenile court responded: “No. Then I may end up issuing the
restraining order.” Appellant replied, “I do not want to answer that question, sir.”
Later, after appellant attempted to invoke her Fifth Amendment right against self-
incrimination, the juvenile court said: “It’s a little late. You’ve already been a
witness . . . .” Appellant replied: “Well, that’s fine. I’m not a criminal, and I’m not a
bad person. And I haven’t done anything to harm anyone.”
Counsel for CPS asked appellant if she “recall[ed] being charged on April 22nd,
2020, with threatening crime with intent to terrorize and assault[.]” “I plead the Fifth
again,” appellant answered.
In argument at the hearing, counsel for CPS said appellant “ha[d] been with” the
juvenile court system “since around 2017,” and observed that the “[c]ourt [wa]s fully
aware of how her behaviors go up and down with her mental health.” Appellant’s
“criminal history” was “almost three full pages long,” and included “battery, [and]
disorderly conduct.” Appellant had “conditions that [we]re untreated, and she [wa]s not
stable,” counsel argued. “She is a danger to these children and to the foster parents. She
knows where they live.”
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While counsel for the minors was agreeing with counsel for CPS, appellant
interjected: “You guys are a danger to this country, all of you. You’re destroying it.”
Appellant continued, until the court clerk cut her off at the judge’s instruction: “I’m
going to hang up because I’m not going to be abused by your court system anymore.
You guys . . . continue to damage -- . . . .”
Appellant’s counsel argued against the restraining order, explaining “[t]here was
no aggression” noted in connection with appellant’s contacts with the caregivers’ home,
and that appellant was living in Washington with “no desire to return” to California.
Before imposing a restraining order for the period of one year, the juvenile court
noted its concerns with “the veracity of [appellant],” who “sa[id] she never showed up” at
the caregivers’ home.
DISCUSSION
Appellant contends the juvenile court “abused its discretion in imposing a
restraining order against [appellant] pursuant to section 213.5,” as there was not
“substantial evidence to support the court’s decision.” CPS disagrees.
We conclude there was substantial evidence for the juvenile court’s decision.
“Section 213.5, subdivision (a) permits a juvenile court to issue an order
‘enjoining any person from . . . attacking, striking, . . . threatening, . . . harassing, . . .
coming within a specified distance of, or disturbing the peace of the child [or any
parent] . . . .’ ‘Issuance 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 child.” [Citation.] Nor does it require evidence of a
reasonable apprehension of future abuse. [Citation.]’ [Citation.] Section 213.5 is
analogous ‘to Family Code section 6340, which permits the issuance of a protective order
under the Domestic Violence Prevention Act [(Fam. Code, § 6200 et seq.)] . . . if “failure
to make [the order] may jeopardize the safety of the [child or current caretaker] . . . .”
[Citations.]’ [Citation.] A restraining order issued after notice and hearing may remain
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in effect up to three years. (§ 213.5, subd. (d)(1).)” (In re N.L. (2015) 236 Cal.App.4th
1460, 1466.)
“In reviewing the restraining order, ‘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.’ ” (In re C.Q.
(2013) 219 Cal.App.4th 355, 364.)
Here, a social worker testified that appellant: (i) had a history of being aggressive
with CPS during supervised visits with her daughters; and (ii) admitted that -- despite the
social worker’s numerous requests -- she twice visited her daughters’ caregivers’ home in
May 2020. The social worker further testified that appellant told her that, on one
occasion, she was at the caregivers home coincidentally because she had been chasing a
vehicle that ran over her dog. The social worker explained she thought a restraining
order was necessary because appellant’s “behavior” and “mental instability” “pose[d] a
danger in terms of becoming aggressive,” “in the presence of the caregivers, as well as
the minors.”
Appellant denied the May 2020 visits on direct examination and indicated that a
restraining order was unnecessary because she planned to remain outside of California.
But on cross-examination, appellant refused to answer questions about any visits she
made to the caregivers’ home, insisting that she was “not a criminal” and had not “done
anything to harm anyone.” When counsel for CPS asked appellant if she recalled being
charged in April 2020 with “threatening crime with intent to terrorize and assault,”
appellant refused to answer.
Then, during argument at the hearing, appellant interrupted and disrupted the
proceedings, threatening to “hang up” because of “abuse[] by [the] court system,”
prompting the juvenile court telephonically to silence her. And earlier in the hearing,
appellant asked the trial court if “someone [was] holding a gun to [the court’s] throat,”
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and at a different moment queried whether -- if she refused to answer questions on cross-
examination -- someone would “kill” her.
At the end of the hearing, the juvenile court questioned appellant’s “veracity”
because she maintained on direct examination that “she never showed up” at the
caregivers’ home.
This is substantial evidence supporting the juvenile court’s implicit finding that
failure to make the order may have jeopardized the safety of the minors or their
caregivers: (i) appellant’s aggressive behavior during the hearing buttressed the social
worker’s testimony of appellant’s aggressive behavior with CPS and the social worker’s
fear that appellant would “becom[e] aggressive” in the presence of the minors and their
caregivers; (ii) appellant’s unannounced and unwanted visits to the home of her
daughters’ caregivers -- despite the social worker’s repeated requests that appellant stay
away from them -- reflected a willingness to ignore and transgress relevant norms; and
(iii) appellant’s indications that she would not return to California were insufficient,
given the juvenile court’s reasonable implicit adverse credibility finding as to appellant
(in light of the conflicting testimony on the question whether appellant visited the
caregivers’ home in May 2020, and appellant’s refusal to answer questions on the
matter). (See Jose O. v. Superior Court (2008) 169 Cal.App.4th 703, 708, citing In re
Kristin W. (1990) 222 Cal.App.3d 234, 253, for the proposition that “[a] reviewing court
may imply a finding if substantial evidence supports it”]; cf. Ocheltree v. Ozsgyanyi
(1962) 207 Cal.App.2d 344, 356 [affirming judgment against a party, and observing that
“of no little significance [was] [the party’s] courtroom conduct,” wherein the party “was
evasive,” and “highly agitated and insulting” on the stand, and ultimately “walked out of
the courtroom and did not return”; and quoting with approval the trial court’s comments
that it could “ ‘only draw inferences adverse to [the party] for his refusal to answer
the . . . questions’ ” on cross-examination].)
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DISPOSITION
The restraining order is affirmed.
/s/
Robie, J.
We concur:
/s/
Blease, Acting P. J.
/s/
Krause, J.
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