IN RE: ARLENE M. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

In this appeal, Salvador M. (Father) challenges a restraining order issued against him under Welfare and Institutions Code section 213.5.¹  We find substantial evidence supports issuance of the restraining order and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Initial Detention

Arlene M., born July 2007, is the daughter of Father and A.C. (Mother).  She came to the attention of the Los Angeles County Department of Children and Family Services (Department) in 2007 when she was one month old.   A juvenile dependency petition was filed under section 300 on August 13, 2007, alleging actual or potential harm to Arlene as a result of Mother's and Father's history of domestic violence.   The petition alleged that Father grabbed Mother's body with force and that Mother has repeatedly slapped Father in the face.   Father was also alleged to have a history of alcohol abuse that endangered Arlene's health and safety.

During the Department's investigation, Mother told a caseworker that she and Father had been dating for a year before Arlene's birth.   During that time, Father grabbed Mother by the arms, which caused bruising, and threw his keys at her.   Father also tried to break down the door at Mother's family home on April 27, 2007, while he was intoxicated.   He forced Mother to get in the car with him and was later cited for not having a valid driver's license, failing to stop at a red light and driving at an unsafe speed.   Mother also reported that Father once pushed her against a car during an argument sometime in June 2007.   A police report was taken of the incident.   Mother says she was not injured.

Mother moved in with Father after Arlene was born but moved back to her mother's house two weeks later because he was aggressive and violent when drunk.   On July 16, 2007, Mother was visiting her mother, Maria R. (Grandmother) when Father saw them crossing the street.   He ran over to them and attempted to take Arlene from them.   Mother quickly gave Arlene to Grandmother, who took her home.   Mother and Father argued.   Although Father grabbed Mother's arms, Mother denies sustaining any injury and later returned to Father's house with Arlene.

Mother also reported that Father refused to let her speak to Grandmother two days later, on July 18, 2007.   They argued and Father “grabbed her from behind and would not let her go.  [Father] tried to lay [Mother] on the floor so they could have sexual relations.”   When Mother again tried to speak with Grandmother, Father grabbed her arms and would not let her reach the phone.   Mother slapped Father in the face twice and Father called the police.   After the police arrived, they agreed Mother and Arlene would move back to Grandmother's house but that Father would be allowed to visit.

It was also alleged that Mother tried to abort the baby when she took 35 insulin pills prior to Arlene's birth.   Mother denied the allegation and explained that she had taken 20 capsules of Naproxen over a short period of time due to a severe headache.   She was taken to the hospital and her discharge diagnosis was “drug overdose.”

Father denied grabbing Mother or trying to break down her door in his interview with the Department.   He admitted that incidents of domestic violence occurred but that Mother was the aggressor, explaining that Mother bit him several times during her pregnancy and Mother slapped him in public during an argument.   Father also admitted that he refused to allow Mother to speak to Grandmother on July 18, 2007.   However, he did not grab her or try to sexually assault her.   Had he done so, he would not have called the police.   He told the Department that he feels Arlene is at risk because Mother's brothers, who often babysit Arlene, are violent and inappropriate caretakers.

Grandmother told the Department that Father is Mother's paternal cousin.   She believes domestic violence is prevalent in Father's family.   She stated she herself was a victim of domestic violence for many years, which was witnessed by her children.   The Department noted that Arlene appeared to be well taken care of and Grandmother's home appeared to be clean, organized and well furnished.   Both Mother and Father were loving and nurturing towards Arlene.   Due to the extensive history of domestic violence in the family, however, the Department recommended that Arlene be detained.

After its initial investigation, the Department concluded that “the main issue in this case is that both parents are using their daughter as a tool.   Although both parents truly care for the well being of their daughter, it appears that father is attempting to have control of mother via his daughter.   Mother is using her daughter as [a] tool to taunt father.”

At the August 13, 2007 detention hearing, the juvenile court found that a prima facie case for detaining Arlene had been established.   Arlene was released to Mother's care while Father was granted monitored visits three times a week.   The Department was ordered to provide Mother with family maintenance services and Father with family reunification services.   The court's disposition case plan, filed October 10, 2007, ordered Mother and Father to attend domestic violence counseling, parent education classes and anger management classes.   Father was also ordered to undergo eight random tests for alcohol with any missed or positive tests to require a full program with the tester.   Pursuant to Mother's August 13, 2007 application for a temporary restraining order against Father, the court also enjoined Father from coming “within 100 yards of mother or minor or maternal grandmother, nor of mother's workplace, nor [minor's] day care, nor any place where he knows that mother and/or minor may be—except in the exercise of permitted visitation.”   That restraining order expired on October 10, 2007.

II. Continued Conflict Between Mother and Father

In his interviews with the Department, Father often told the caseworker that Arlene was at risk.   When asked to give an example, he stated that Arlene was exposed to domestic violence at Grandmother's home because Mother's brothers rough-housed with one another.   A caseworker conducted an unannounced visit to Grandmother's home and found Arlene to be “very well taken care of.”   Additional visits by the Department from July to October 2007 showed Arlene was in good health and well groomed.

Meanwhile, Mother and Grandmother complained that Father continued to harass and stalk the family, calling Mother to tell her he was watching her and describing what she was doing at that moment.   Grandmother also saw Father and his brother drive up to her driveway and watch the family from the car.   Grandmother expressed frustration to the Department that he was violating the temporary restraining order without consequences.

Mother and Grandmother also reported that Father called the police to report that Arlene was in danger.   In one incident, the police arrived at Grandmother's house at 2:00 a.m. after receiving a tip that a child had been left home alone.   They found Arlene asleep and well.   Father also told the caseworker that on or about October 20, 2007, a “friend” told him that Mother was at a party where there was drinking.   Although he admitted that Mother had not neglected Arlene at the party and was not drinking herself, he immediately filed a report at the police station and refused to leave until a squad car was sent to Mother's home.

By April 2008, Mother had complied with the court's case plan and finished her counseling and parenting classes.   Father, however, had not yet begun the counseling or domestic violence classes ordered by the court, claiming his work schedule prohibited any time off.   By October 8, 2008, Father had tested negative on eight consecutive drug tests and completed parenting classes but had not attended domestic violence counseling.   He continued to regularly attend monitored visits with Arlene, who called him “papa.”

On June 21, 2008, the police were called for a domestic battery incident at Mother's home.   When they arrived, Mother reported to the officers that Father had repeatedly called her throughout the day but she refused to speak to him.   At approximately 8:30 p.m., Father came to Mother's house and yelled for her to come outside.   Father became angry when Mother told him he needed to leave.   He forced the security gate open and grabbed her by her arms to pull her outside.   He then punched her in the shoulder, causing her to fall to the ground.   The officers observed a half-inch circular bruise to the inside of Mother's left bicep.   Mother's brother intervened and pushed Father away from his sister.   Father reportedly told Mother's brother, “Watch your back Cuz, I'm gonna blast ya'll ․ I know where you live.  [Sic.]” Mother's brother stated he feared for himself and Mother because Father was a known associate of the 38th Street gang.

III. The Supplemental Dependency Petition

A supplemental juvenile dependency petition was filed under section 387 on December 9, 2008, as the result of a call into the Child Abuse Protection Hotline.   The caller stated that Arlene was exposed to ongoing domestic violence as Mother and Father were constantly cursing and yelling at each other.   The caller reported the arguments often turned physical and Arlene was heard crying loudly.   The supplemental petition alleged that Mother allowed Father to visit Arlene without a monitor present, as ordered by the court.   The petition also alleged that Mother and Father engaged in the violent altercation on June 21, 2008, as set forth above.   The detention report submitted by the Department in connection with the petition also alleged that Father was seen pushing Mother into a mailbox.   When the police were called, Mother denied the incident happened.   According to the Department, these incidents warranted a more restrictive placement for Arlene.   In an addendum report, the Department recommended that Arlene be placed with Grandmother instead of Mother, with the parents to have separate visits.

In a November 10, 2008 interview with the Department, Mother denied any incidents of domestic violence or problems with Father since the court took jurisdiction.   She denied being hit or threatened by Father.   She also stated she did not fear Father.   She admitted she had visited Father's home in an attempt to reconcile with him after the court took jurisdiction but denied bringing Arlene with her.   Mother also denied she was hurt in the June 21, 2008 incident, stating that she was in the house and never came outside to confront Father.   Instead, she said that her brother was outside with Father.   The only thing she knew was that the police came to check on her and Arlene that day.

In an interview with the caseworker on November 12, 2008, Father also denied that any domestic violence incidents or problems had taken place after the court took jurisdiction.   He explained that he was being harassed and sued by the landlord at his building because he got into a fight with the building manager's husband in September or October 2008.   He knew the landlord told police he hit Mother and Arlene and that she heard banging, noises and the baby crying.   He was arrested after the fight with the building manager's husband.   The Department noted he was wearing an ankle bracelet.   Father told the Department that the landlord got a restraining order against him in July 2008 because “she accuses him of extortion and emotional abuse.”   The Department obtained and reviewed a copy of father's criminal record.   It showed three separate arrests in 2008:  on June 21, for inflicting corporal injury to spouse;  on September 29, for battery and driving under the influence;  and on November 26, for battery.   On November 26, Father also had an outstanding warrant for inflicting corporal injury on a spouse/cohabitant.   He also had three arrests for driving under the influence of alcohol or drugs on December 27, 2003, February 7, 2005, and October 15, 2005 as well as a warrant for failure to appear and driving under the influence of alcohol on September 17, 2004.

Father's apartment manager told the Department on November 5, 2008, that Father, Mother and Arlene lived together in his apartment.   The manager said that Father hit Mother and cursed at her in front of Arlene.   Grandmother, on the other hand, reported that Mother and Arlene lived with her.   After visiting Father's apartment, the Department noted that he had a high chair, crib and new baby clothes and toys.   Grandmother's neighbors confirmed seeing Father pick up Mother and Arlene from Grandmother's house.

The Department concluded that “Mother[ ] is aware of father's continued aggression and violence, and she appears to minimize his behavior.   Mother denied that father hit her earlier this year despite the police report which clearly documents the events that contradict mother's story.”   The juvenile court adopted the Department's recommendation on December 9, 2008, and ordered Arlene to be detained with Grandmother, Mother and Father to receive monitored visits.

Shortly after his interview with the Department, Father was incarcerated in federal prison in Lancaster from November 2008 to July 2009.   When he was released, he rented an apartment across the street from Grandmother's house with the intent to reconcile with Mother.   He and Mother lived there with Arlene for approximately two months.   Father told the caseworker that they had to leave the apartment as a result of problems with the landlord created by Mother's family.   Father told the Department that he believed Mother bought over the counter medication for methamphetamine producers.   He accused Grandmother of entertaining male friends at her home where they drank heavily when she was supposed to be watching Arlene.

Later in 2009, Father was charged with multiple crimes – battery, assault and public intoxication – for an incident occurring on or about August 3, 2008.   Father pled no contest to the battery charge.   He was ordered to serve 30 days in Los Angeles County jail or in lieu of jail, perform 20 days of service with the California Department of Transportation.   He was placed on summary probation for a period of 24 months and released on December 26, 2009.   Father's family reunification services were extinguished by order dated March 19, 2009.   Arlene was returned to Mother's custody.

IV. The Restraining Order at Issue

On April 22, 2010, the juvenile court issued a temporary restraining order, to expire May 6, 2010.   It found that “Father has hit mother.   As recently as 4/22/10, he has harassed mother and threatened violence.   He calls mother multiple times a day, every day, and calls her at her work.   At least twice a week, he goes to her work to harass her.   He has become increasingly jealous.   He threatens mother that if he sees her with another man, he will kill mother and the other man.   He calls her vulgar names.   Mother fears that these behaviors will get worse, and that father will physically hurt her and take her daughter away.   Mother is afraid of losing her job because of him.”   The court ordered Father to stay 100 yards from Mother and not contact her.

A. Mother's application

In her application for a permanent restraining order on May 6, 2010, Mother declared:

“When we used to live together, father would hit me.   About 3 months ago, I noticed that he started drinking heavily again.   He began harassing me and threatening violence.   He calls me multiple times a day, every day and calls me at work.   At least twice per week, he comes to my work to harass and threaten me.   He has become increasingly jealous and accuses me of dating someone else.   He threatens me that if he sees me with another man, he will kill me and the other person.   He calls me vulgar names (stupid, slut, son of a bitch).   He threatens to take my daughter away so that I will never see her again.   I fear for the safety of me and my daughter.   I am afraid that the stalking behaviors will get worse and that he will physically hurt me and take my daughter away.   I am afraid that I will lose my job if he does not stop harassing me.”

B. Father's testimony

At the hearing on the restraining order, Father testified that Mother regularly contacted him throughout the time he was purportedly harassing and threatening her.   Father further testified that he and Mother lived together for two and one-half months in 2009 but had separated by November.   Thereafter, they would often meet one another or call each other.   On April 21, 2010, he and Mother went to the mall to buy diapers for Arlene and shoes for Mother.   He said he only discovered at the hearing the next day that Mother had applied for a restraining order against him.   He also testified that he kissed Mother good night without objection when she dropped him off at his home and they would go to dinner or lunch.

He further testified that Mother often left Arlene with her brothers, who were not appropriate caregivers.   Father denied threatening Mother or harassing her.   He testified that friends and family often called him to alert him to Arlene's whereabouts because they knew he was concerned for his daughter's safety.   He stated that Mother viewed that as interfering with her personal life.   Father testified that he has not contacted with Mother since April 22, 2010, but that she has contacted him.   More specifically, he said sometime after April 22, Mother dropped by his work and asked him to install a screen TV into her car.   Father admitted he called Mother “stupid” several times when she pushed him during an argument.

C. Juvenile court ruling

The juvenile court granted the restraining order against Father, stating, “I don't find his explanations or his testimony to be very credible at all.”   The court explained:

“[I]t's pretty apparent from father's testimony that he's pretty much monitoring mother's situation.   And I don't believe for a second that people are just randomly calling him to report on the whereabouts of his daughter.

“I think he's following mother and he's monitoring what her activities are, who she's leaving the child with.   And while I understand that he may be concerned about his child, he doesn't get to follow mother.   He doesn't get to monitor her activities.

“And I placed the child in mother's home.   So he needs to respect that I have decided mother is capable of making these decisions for herself and that, if mother decides she wants to go out and leave the child with somebody, that – a relative or a close friend, that mother has the right to do that.”

The court emphasized the importance of Father continuing to have monitored visits with Arlene.

D. Father's request for rehearing

In a request for rehearing, Father stated that “after a temporary order was issued, Mother ․ frequently called him;  she also came by his place of employment, unasked, requesting that he install a stereo system into her car;  she also requested the he take her to the mall to buy her shoes and diapers for the child.”   The request for rehearing was denied.   Father timely filed his notice of appeal from the permanent restraining order and the denial of rehearing.

DISCUSSION

I. The Juvenile Court Did Not Err in Issuing the Restraining Order

Against Father

Section 213.5 permits a juvenile court to issue, ex parte or upon notice and a hearing, a restraining order “enjoining any person from contacting, threatening, molesting, attacking, striking, sexually assaulting, stalking, battering, or disturbing the peace of any parent, legal guardian, or current caretaker of the child, regardless of whether the child resides with that parent, legal guardian, or current caretaker ․“ (§ 213.5, subds.(a), (d).)  The court may also issue an order excluding a person from a residence or dwelling, “regardless of which party holds legal or equitable title or is the lessee of the residence or dwelling.”  (Id., subd. (e)(1).)

A juvenile court's issuance of a restraining order may not be disturbed on appeal if there is substantial evidence supporting the order.   As a result, “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.”  (In re Cassandra B. (2004) 125 Cal.App.4th 199, 210–211.)

Father contends that substantial evidence did not support the issuance of the permanent restraining order against him because he was merely concerned with Arlene's safety rather than intent upon threatening or harassing Mother.   He also argues that Mother obviously did not feel threatened or harassed by him since she regularly contacted him and met with him before and after she requested the restraining order.   We disagree.

Father's behavior clearly amounts to “contacting, threatening, molesting, ․ stalking ․ or disturbing the peace” of Mother. (§ 213.5, subds.(a)-(e).)   As noted by the court in In re Brittany K. (2005) 127 Cal.App.4th 1497, 1512, “the term ‘stalking,’ as utilized in section 213.5, does not refer exclusively to the act of literally following someone, although it certainly includes that conduct.   Instead, it refers broadly to conduct that is designed to ‘follow’ a particular person in a more general sense, as in to pursue, monitor, watch or keep that person under surveillance for no legitimate purpose, and with the consequent effect of seriously harassing, alarming, annoying, tormenting, or terrorizing the person being followed, pursued, monitored, watched or kept under surveillance.”

This is not a close case – all of appellant's contentions are belied by the record.   Father's own testimony establishes that he tracked Mother's whereabouts and monitored her conduct through “friends and relatives.”   Moreover, the juvenile court did not believe his assertion that he was only concerned for his daughter's welfare because Mother's family did not properly care for Arlene.   The Department's reports to the court show that Arlene has been well taken care of by Mother and her family.   Further, Mother's declaration showed that Father's behavior frightened her.   Finally, the trial court found Father's behavior was close in temporal proximity to the issuance of the restraining order.   This evidence is more than sufficient to establish that Father was “stalking” Mother for no legitimate purpose and that Mother was consequently terrorized.   That Father has recently been arrested and convicted of battery and that the family had a long history of domestic violence merely provides further support for the issuance of the restraining order.

DISPOSITION

The order issuing a restraining order against Father is affirmed.

BIGELOW, P. J.

We concur:

RUBIN, J.

GRIMES, J.

FOOTNOTES

FN1. All further section references are to the Welfare and Institutions Code, unless otherwise specified..  FN1. All further section references are to the Welfare and Institutions Code, unless otherwise specified.