Filed 6/28/24 In re A.P. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re A.P. et al.,

Persons Coming Under the 

Juvenile Court Law.

 B327857

 (Los Angeles County

 Super. Ct. No. 22CCJP05017)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

Lidia P.,

Defendant and Appellant;

Luis M.,

 Defendant and Respondent.
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APPEAL from an order of the Superior Court of Los 

Angeles County, Pete R. Navarro, Judge Pro Tempore. Reversed

with directions.

Carol A. Koenig, under appointment by the Court of 

Appeal, for Defendant and Appellant Lidia P.

Benjamin Ekenes, under appointment by the Court of 

Appeal, for Defendant and Respondent Luis M.

___________________________

Appellant Lidia P. (Mother) asserts the juvenile court erred 

by denying her request for a restraining order protecting her 

from respondent Luis M. (Father). The juvenile court found that 

Father recently committed multiple acts of domestic violence 

against Mother and one of her children. The court nevertheless 

declined to issue a restraining order, finding it unnecessary 

because Mother and Father no longer resided together. The court 

instead orally ordered both parents to stay away from one 

another.

The parties no longer residing together was not a proper 

basis on which to deny Mother the protection afforded by a 

restraining order. Nor was the oral stay-away order a proper 

substitute. We therefore reverse and remand for a new hearing 

on Mother’s restraining order request.

FACTUAL AND PROCEDURAL BACKGROUND

Mother has two children: A.P. (born 2016) and D.P. (born 

2018). Father is D.P.’s presumed father, and has requested 

presumed father status for A.P. as well. On December 27, 2022,

the Los Angeles County Department of Children and Family 
3

Services (DCFS) filed a Welfare and Institutions Code1 section 

300 petition alleging A.P. and D.P. were at substantial risk of 

harm because of domestic violence between Mother and Father 

(counts a-1, b-1), Mother’s mental and emotional problems (count 

b-2), Father’s severe epilepsy and his driving the children 

without proper safety restraints (count b-3), Father’s marijuana 

use (count b-4), and Father’s physical abuse of A.P. (counts b-5, j1). With regard to domestic violence, count a-1 alleged that on 

December 10, 2022, Father forcibly grabbed Mother’s head with 

his hands causing her pain, and that on December 18, 2022, he

pushed Mother to the ground causing pain in her right leg. 

Count b-5 alleged that Father had twice hit A.P. in the head, once 

with a closed fist and once with an open hand.

Prior to the filing of the section 300 petition, on 

December 20, 2022, Father agreed with DCFS to a safety plan in 

which he would leave the family home. The next day, a social 

worker found Father still at the home. Both Mother and Father 

claimed he had not slept there the previous night and had 

stopped by to retrieve some belongings; both children said Father 

had slept in Mother’s bedroom the previous evening. At some 

point soon after December 20, 2022, Father indisputably moved 

out of the residence.

On December 28, 2022, Mother filed a request for a

restraining order pursuant to section 213.5, seeking protection 

for herself from Father based on his alleged domestic violence. 

The juvenile court granted a temporary restraining order (TRO)

and set the matter for a future hearing on whether a permanent 

1 All unspecified statutory references are to the Welfare 

and Institutions Code.
4

restraining order would issue.

2 Among other things, the TRO 

prohibited Father from contacting Mother or coming within 100 

yards of Mother or her home. After the TRO was issued, Father 

violated it by going to Mother’s home on two or three occasions to 

attempt contacting her. Call logs indicate Mother telephoned the

police on January 7, 15, and 29, 2023 to report Father’s violations 

of the TRO. On January 30, 2023, a DCFS social worker 

explained to Father the possible consequences of continuing to 

violate the TRO. Father promised to stay away from Mother, and 

there is no evidence in the appellate record that he contacted 

Mother after that discussion.

As permitted by section 213.5, subdivision (c)(5), the

hearing on the permanent restraining order took place

simultaneously with the jurisdiction/disposition hearing on 

February 22, 2023. Mother testified that she remained in fear of 

Father. At the hearing, the juvenile court sustained count b-1 

related to domestic violence by Father upon Mother, count b-2 

related to Mother’s mental and emotional problems, and counts 

b-5 and j-1 related to Father’s physical abuse of A.P.; the court 

struck the remaining counts. The court removed the children 

from both parents. Among other things, Father was ordered to 

participate in a domestic violence perpetrator’s class, and Mother 

in a program for domestic violence victims.

2 We use the term “permanent” to distinguish a restraining 

order issued after notice and hearing from a TRO issued ex parte. 

(Compare § 213.5, subd. (a) [TRO] with § 213.5, subd. (d)(1)

[permanent order].) Such an order is not permanent in the sense 

that it remains in force indefinitely, as permanent orders cannot 

exceed three years in length. (Ibid.)
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The court declined to issue a permanent restraining order, 

and dissolved the TRO, finding that the parents living separately

had accomplished the same result a restraining order would. The 

court instead orally ordered both parents “not to visit together. 

Father not to call Mother, not to go down to her house. Same 

thing with Mother. Stay away from the father.”

DISCUSSION

A. Standard of Review

We apply both the substantial evidence and abuse of 

discretion standards to determine whether a juvenile court 

properly denied a section 213.5 restraining order request. (In re

S.G. (2021) 71 Cal.App.5th 654, 670.) When reviewing for 

substantial evidence, “ ‘ “we draw all reasonable inferences from 

the evidence to support the findings and orders of the dependency 

court; we review the record in the light most favorable to the 

court’s determinations; and we note that issues of fact and 

credibility are the province of the trial court.” [Citation.] “We do 

not reweigh the evidence or exercise independent judgment, but 

merely determine if there are sufficient facts to support the 

findings of the trial court. [Citations.] ‘ “[T]he [appellate] court 

must review the whole record in the light most favorable to the 

judgment below to determine whether it discloses substantial 

evidence . . . such that a reasonable trier of fact could find [that 

the order is appropriate].” ’ [Citation.]” [Citation.]’ [Citation.]”

(In re I.J. (2013) 56 Cal.4th 766, 773.)

“The substantial evidence standard of review takes on a 

unique formulation where . . . ‘the trier of fact has expressly or 

implicitly concluded that the party with the burden of proof did 

not carry the burden and that party appeals.’ [Citation.] ‘Where 

the issue on appeal turns on a failure of proof at trial, the 
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question for a reviewing court becomes whether the evidence 

compels a finding in favor of the appellant as a matter of law.’ 

[Citation.] Specifically, we ask ‘whether the appellant’s evidence 

was (1) “uncontradicted and unimpeached” and (2) “of such a 

character and weight as to leave no room for a judicial 

determination that it was insufficient to support a finding.” 

[Citation.]’ [Citation.]” (In re S.G., supra, 71 Cal.App.5th at 

p. 671.)

“Review for abuse of discretion is . . . focused not primarily 

on the evidence but the application of a legal standard. A court 

abuses its discretion only when ‘ “ ‘the trial court has exceeded 

the limits of legal discretion by making an arbitrary, capricious, 

or patently absurd determination.’ ” ’ [Citation.]” (In re Caden C. 

(2021) 11 Cal.5th 614, 641.) Whether a trial court applied the 

correct legal standard in exercising its discretion is a question of 

law that we review de novo. (N.T. v. H.T. (2019) 34 Cal.App.5th 

595, 601-602.)

B. The Juvenile Court Erred in Denying Mother’s 

Restraining Order Request

1. Section 213.5

“Under section 213.5, and as pertinent here, a juvenile 

court has the authority to issue a restraining order lasting up to 

three years that protects . . . ‘any parent . . . of the [dependent] 

child’ from harassment by a parent. (§ 213.5, subds. (a) & (d); see 

Cal. Rules of Court, rule 5.630(a).)” (In re Lilianna C. (2024) 99 

Cal.App.5th 638, 643-644.) When a dependency matter is 

pending, the juvenile court has exclusive authority to issue such 

restraining orders; the parent of a dependent may not seek one 

from another division of the superior court. (§ 213.5, subd. (a).) 

Section 213.5 directs the juvenile court to issue such restraining 
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orders “in the manner provided by [s]ection 6300 of the Family 

Code.” (§ 213.5, subd. (a).) Given the cross-reference in section 

213.5 to Family Code section 6300, courts have analogized the 

issuance of a section 213.5 restraining order to the issuance of 

protective orders under the Domestic Violence Prevention Act 

(DVPA), Family Code section 6200 et seq. (In re N.L. (2015) 236 

Cal.App.4th 1460, 1466; In re B.S. (2009) 172 Cal.App.4th 183, 

194.)

Like the DVPA, a protective order issued pursuant to 

section 213.5 enjoins the restrained party among other things 

“ ‘from molesting, attacking, striking, . . . stalking, or battering’ ”

any parent of the dependent child. (In re B.S., supra, 172 

Cal.App.4th at p. 193.) “Accordingly, evidence that the 

restrained person has previously molested, attacked, struck, . . . 

stalked, or battered” the parent to be protected is not necessary 

but “certainly sufficient” to support the issuance of a restraining 

order under section 213.5. (Ibid.) Section 213.5 does not require 

a reasonable apprehension of future physical abuse by the party 

to be protected for issuance of a restraining order. (In re Lilianna 

C., supra, 99 Cal.App.5th at p. 644.)

If granted, a section 213.5 restraining order must be issued 

on approved Judicial Council forms and entered in the California 

Law Enforcement Telecommunications System or “CLETS.” 

(§ 213.5, subds. (h), (j).) An order’s entry into CLETS “permits it 

to be enforced by law enforcement officers.” (In re Marriage of 

Reichental (2021) 73 Cal.App.5th 396, 405.) A “non-CLETS” 

order, such as the juvenile court’s order here for the parties to 

stay away from one another, is not entered into CLETS and thus 

is typically not enforced by law enforcement. (Ibid.)
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2. Substantial Evidence Supports the Juvenile Court’s 

Finding that Father Committed Domestic Violence

Neither parent contests the court’s exercise of dependency 

jurisdiction, which was based in part on findings that Father 

committed multiple acts of domestic violence. At the combined 

hearing on jurisdiction/disposition and Mother’s restraining order 

request, the juvenile court found Father committed domestic 

violence against Mother on December 10 and 18, 2022. It further 

found Father had committed two acts of domestic violence 

against one of Mother’s children. Father does not contest that he 

perpetrated domestic violence and admits the court did not deny 

Mother’s restraining order request based on a failure of proof

that such abuse occurred.

With regard to Mother’s restraining order request, we are 

satisfied substantial evidence supports the court’s domestic 

violence findings. Father admitted grabbing Mother by the neck 

on December 10, 2022, and pushing Mother on December 18, 

2022, resulting in her falling down. Mother told police 

responding to the December 10, 2022 incident that Father was 

acting erratically, had grabbed her neck with both hands, and 

had held on for approximately two minutes before letting go. 

Although Mother told police Father did not attempt to strangle 

her while grabbing her neck, Mother told her sister that Father 

had in fact attempted to strangle her. Mother told DCFS that on 

December 18, 2022, Father had taken Mother’s phone away and 

pushed her to the ground when she attempted to retrieve it. A.P. 

told DCFS that Father had previously hit A.P.’s head with a

closed fist hard enough to fracture A.P.’s skull and send him to 

the hospital, and another time hit A.P.’s mouth with an open 

hand and knocked a tooth out.
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Father also admitted going to Mother’s home in violation of 

the TRO. Under the DVPA, engaging in behavior that violates a 

TRO constitutes an additional act of abuse. (Fam. Code, § 6203, 

subd. (a)(4); see also N.T. v. H.T., supra, 34 Cal.App.5th at 

p. 602.) We see no reason to reach a different result under 

section 213.5. Section 213.5 permits a juvenile court to enjoin 

“contacting” as well as “coming within a specified distance of” a 

protected party, and the TRO contained these prohibitions. 

(§ 213.5, subd. (a).) Father contacted Mother at her home in 

violation of the TRO more than once, requiring Mother to call 

police to enforce the TRO. Father’s counsel acknowledged at the 

February 22, 2023 hearing that Father knew he violated the 

TRO, and such knowing violations are neither de minimis nor 

technical but substantive acts of further abuse. (N.T. v. H.T., 

supra, 34 Cal.App.5th at p. 603.)

3. The Juvenile Court Abused its Discretion in Denying

the Requested Restraining Order Because the Parents

No Longer Lived Together

Conceding the court’s findings regarding his domestic 

violence, Father instead argues the court did not abuse its 

discretion in declining to issue the requested restraining order 

despite those findings. Father initially characterizes the juvenile 

court as having granted Mother’s request in part by issuing a nocontact order under section 213.5 and denying it in all other 

respects. That is not what occurred. The court’s oral ruling and 

its minute order make that clear the court denied all of Mother’s 

requests pursuant to section 213.5; it did not grant some and 

deny others. The court did not issue its stay-away order on a 

Judicial Council form, which would have set forth with more 

specificity what the order prohibited Father from doing, and the 
10

court did not transmit the order for entry into CLETS so that 

police could enforce it—both of which section 213.5 would have 

required. (§ 213.5, subds. (h), (j).)

Father next argues that even if the stay-away order was 

not issued pursuant to section 213.5, Mother suffered no 

prejudice or miscarriage of justice because the stay-away order

combined with the parents no longer residing together provided 

Mother any necessary relief. We disagree. Physical separation is 

not a substitute for the protection provided by a restraining 

order. Nor is a non-CLETS stay-away order.

A court may not deny a restraining order request under the 

DVPA on the basis that one parent no longer lives in the same 

residence as the other parent. (In re Marriage of F.M. & M.M.

(2021) 65 Cal.App.5th 106, 119-120, citing Fam. Code, § 6301, 

subd. (b).) The rationale for this rule is that given “ ‘the 

recognized seriousness of domestic abuse, domestic violence 

survivors must not be denied critical protection under the DVPA 

merely [because] they have succeeded in extracting themselves 

from the immediate risks posed by living with their abuser.’ ” (In 

re Marriage of F.M. & M.M., supra, at pp. 119-120.) That 

rationale applies with equal force to a section 213.5 restraining 

order, particularly given that such orders are issued “in the 

manner provided by [s]ection 6300 of the Family Code, if related 

to domestic violence.” (§ 213.5, subd. (a).) Given section 213.5’s 

reference to Family Code section 6300 and the juvenile court’s 

exclusive authority over restraining orders sought by a parent 

while dependency proceedings are on-going, a domestic violence 

survivor in Mother’s position should not receive less protection

than she would in a family law court simply because the parents 

no longer live together.
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The “use of residential separation as a substitute for a 

[restraining order is further] inappropriate given that the parties 

still have to coparent,” which means “further interactions 

between the two are unavoidable.” (In re Marriage of F.M. & 

M.M., supra, 65 Cal.App.5th at p. 120.) The facts here illustrate 

this point. Following the denial of the restraining order, the 

court made a home of Mother order in September 2023 and 

granted Father unmonitored visitation; the court later made

home of parents orders with Father having primary custody and

the parents exchanging the children for their respective custodial

times.

3 The parents may no longer live together, but their 

parenting responsibilities necessitate that they continue to 

regularly meet and interact with one another.

The mutual stay-away order was a similarly flawed

substitute for the protections afforded by a section 213.5 

restraining order. That the juvenile court felt compelled to issue 

such a stay-away order “suggest[s] that the . . . court believed 

there was a need to admonish [Father] from the bench that he 

must continue to stay away and have no contact with [Mother]” 

because of concerns that future abuse might occur “but without 

giving [Mother] the legal protection of a restraining order.” 

(Cueto v. Dozier (2015) 241 Cal.App.4th 550, 562.) As noted 

above, a restraining order is entered into CLETS and is

immediately enforceable by police. The stay-away order the court 

3 We grant Mother’s request for judicial notice of the court’s 

March 28, 2024 minute order, and on our own motion augment

the record to include the minute orders from the September 21, 

2023 and January 19, 2024 hearings, all of which reflect the 

court’s custody orders. (Cal. Rules of Court, rules 8.155(a)(1)(A), 

8.252(a).)
12

made was non-CLETS; should a violation occur, it would not 

provide Mother legal protection though immediate enforcement 

by police but instead require a more extended after-the-fact court 

process affording significantly diminished protection.

4. Remand for New Hearing

Mother requests that we order the juvenile court on 

remand to issue a restraining order. Because the juvenile court 

used an incorrect legal standard, it did not make factual findings 

related to the issuance of a restraining order beyond its finding of 

past abuse. Courts have discretion to issue a domestic violence 

restraining order based only on past abuse, and that discretion 

should be exercised liberally in favor of protecting survivors. (See 

Parris J. v Christopher U. (2023) 96 Cal.App.5th 108, 116.) If all 

material evidence relevant to the court’s exercise of discretion 

was undisputed, we could determine Mother’s entitlement to a 

restraining order as a matter of law. But the court expressed

concern with Mother’s veracity as to any issues beyond the 

specific allegations it sustained because she was not taking her 

psychotropic medication and suffered from paranoid delusions. 

We further note that during the February 22, 2023 hearing,

Mother made repeated disruptive outbursts, which the court 

stated were “symptomatic of some underlying disorder.” As 

factual disputes remain beyond the finding of past abuse, and if 

the court issues a restraining order it must further decide the 

terms and length of that order, we remand the matter to the 

juvenile court for further proceedings.
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DISPOSITION

We reverse the juvenile court’s denial of Mother’s

restraining order request. We remand the matter for a new 

hearing on Mother’s request consistent with the views expressed 

in this opinion.

NOT TO BE PUBLISHED

WEINGART, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J.