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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 A.P . et al.,

Persons Coming Under the Juv enile Court Law. B32 7857

(Los Angeles County Super. Ct. No. 2 2 CCJP 05017 )

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

L idia P.,

Defendant and Appellant ;

L uis M.,

Defendant and Respondent

.2 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 L idia P

. Benjamin Ekenes, under appointment by the Court of Appeal, for Defendant and Respondent L uis M.

___________________________ Appellant L idia P. (Mother) asserts the juvenile court erred by denying her request for a restraining order protect ing her
from respondent L uis M. (Father)

. The juvenile court found that
Father recently committed multiple acts of domestic violence against Mother and one of her child ren. The court nevertheless
de clined 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

. T he pa rties no longer residing to gether 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 . W e therefore reverse and remand for a new hearing on Mother’s restraining order request

. FACTUAL A ND 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, 20 22
, the Los Angeles County Department of Children and Family3

Services (DCFS) filed a Welfare and Institutions Code 1 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, j

1). W ith regard to domestic violence , c ou nt a

- 1 alleged that on December 10, 2022, Father forcibly grabbed Mother’s he a d with
his ha nds 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 Fath er had twice hit A .P. in the hea d, 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. T he next day

, a social
worker found Father still at the home . B oth 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 bedr oom the previous evening

. A t some point soon after December 20, 2022, Father indisputably moved

out of the residence

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

r estraining o rder pursuant to section 213.5 , seeking protection
for herself from Father based on his alleged domestic violence

. The juvenile court granted a t emporary r estraining o rder (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

. C all 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 continu ing to
violate the TRO

. Father promised to stay away from Mother , and

t here is no evidence in the appellate record that he contacted
M other after that discussion. As permitted by section 213.5, subd ivision ( c)(5), t he hearing on the permanent r estraining o rder took place simultaneously with the jurisdiction/disposition hearing on February 22, 2023

. Mother testified that she remained in fear of
Father. At th e 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.; t he court struck the remaining counts

. T he court removed the children
from both parents. Among other things, Father was ordered to

par ticipate 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 remain s in force indefinitely, as permanent order s cannot exceed three years in length. ( Ibid

. )5 The court de clined to issu e a permanent restraining order, and dissolved the TRO, finding that the parents living separately had accomplished the s ame result a restraining order would

. The

court instead o rally o rder ed both parents “not to visit together

. Father not to call Mother

, n ot 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 standard s 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 a re 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 t rier 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.] ‘ W here the issue on appeal turns on a failure of proof at trial, the6

question for a reviewing court b ecomes 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 n o 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 C al.5th 614, 641.) W hether 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
Restra ining 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 6 38, 643

- 644 .) When a dependency matter is pending, the juvenile court has exclusive authority to issue such

res training orders ; the parent of a dependen t may not seek one from another division of the superior court . ( § 213.5, subd. (a) .)
Section 213.5 directs t he juvenile court to issue such restraining7

order s “in the manner provided by [s] ection 6300 of the Fami ly 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 pur suant to section 213.5 e njoin s the restrained party among other things

“ ‘ from molesting, attacking, striking,

. . . stalking, or battering ’ ” any parent of the dependent child. ( I n 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

. ( I bid .) 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 , 9 9 Cal.App.5th at p. 6 44 .) 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, subd s . ( h ) , (j ). ) An order’s entry int o 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 .)8 2. Substantial Evidence Supports the Juvenile Court’s
Findi ng 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 /disp osition and Mother’s restraining order request, t he 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, w e are satisfied s ubstantial evidence supports th e court’s domestic
violence finding s

. 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 stran gle
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, F ather 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.9 Father also admitted going to Mother’s home in violation of
the TRO. Under the DVPA, engaging in behavior that violates a
TRO con stitutes a n 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 .) W e see no reason to reach a different result under
section 213.5. Section 213.5 permits a juvenile court to enjoin

“ contact ing” as well as “coming within a specified distance of” a protected party , and the TRO contained these prohibitions

. ( § 2 13.5, 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 violation s are neither de minimis nor technical but substantive act s 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 Res training 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 character iz e s the juvenile court as having granted Mother’s request in part by issu ing a no

contact order under section 213.5 and denying it in all other respects

. T h at 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
J udicial C ouncil form , which would have set forth with more specificity what the order prohibited Father from doing

, and the10

court did not transmit the order for entry into CLETS so that police could enforce it

— both of which section 213.5 would have require d

. ( § 213.5, subd s . ( h ) , (j).)
F ather 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 th e stay

- away order
combined with the parents no longer residing together provide d Mother any necessary relief. We d isagree. 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 s ame 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 “ ‘ t he recognized seriousness of domestic abuse, domestic violence

surv ivors 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 21 3.5’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 protect ion than she would in a family law court simply because the parents no longer live together

.11 T he “ 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.) Th e facts here illustrate
th is point . F ollowing the denial of the restraining order, the
court made a home of M other order in Septem ber 2023 and granted Father unmonitored visitation ; the court later made home of parents order s 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 necessit ate that the y 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 sec tion 213.5 restraining order. That the juvenile court felt compelled to issue

s uch 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 . T he stay

- away order the court

3 We grant Mother’s request for judicial notice of the court’s March 28, 2024 minute order, and o n our o w n 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 cust ody orders. (Cal. Rules of Court, rule s 8.155 (a)(1)(A)

, 8.252 (a) .)12

made was no n

- CLETS ; should a violation occur

, it would not provide Mother legal protection though immediate enforce ment by police but instead require a more extended after

- the

- fact court

pro cess 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 t he juvenile court used an incorrect legal standard, it did not make factual fin dings
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, 1 16 .) 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 l aw. 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, w e remand the matter to the juvenile court for further proceedings

.13 DISPOSITION

We reverse the juvenile court’s denial of Mother’s restraining order requ est

. We remand the matter for a new hearing on Mother’s reque st consistent with the views expressed
in this opinion

. NOT TO BE PU BLISHED

WEINGART, J.

We concur:

ROTHSCHILD, P. J.

BENDIX , J.