Filed 6/26/15 In re K.H. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT

In re K.H., a Person Coming Under the 

Juvenile Court Law.

 B261166

 (Los Angeles County

 Super. Ct. No. DK07739)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff,

P.M.,

Respondent,

v.

R.H.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Stephen 

Marpet, Juvenile Court Referree. Affirmed.

Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Leslie A. Barry, under appointment by the Court of Appeal, for Respondent.

* * * * * *
2

In this dependency case, the juvenile court removed two-year-old K.H. from 

R.H.’s (father’s) custody and placed her with P.M. (mother) after father repeatedly 

sexually assaulted mother, including once while K.H. was in the same room. The 

court also issued a permanent restraining order requiring father to stay away from 

mother and K.H. except for monitored visits. Father appeals, challenging only the

sufficiency of the evidence supporting the inclusion of K.H. in the restraining order. 

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On September 17, 2014, the Los Angeles County Department of Children and 

Family Services (DCFS) received a police referral alleging father tried to rape and 

sodomize mother. According to the detention report, their two-year-old daughter K.H. 

“was present in the home when the incidents occurred.” (Italics omitted.)

When interviewed by DCFS, mother stated she and father had been having 

many relationship problems. On several occasions, she had asked him to leave the 

home they shared and each time he refused. On September 16, 2014, he was served 

with child custody and mediation paperwork and became very upset. Shortly after 

being served, he confronted mother, started touching her breasts, and lifted her shirt, 

exposing her breasts. She asked him to stop but he continued to fondle her breasts,

began to pull her shorts and underwear down, and touched her vagina. In an effort to 

get away, she entered the room where K.H. was sleeping. Father followed her, pulled 

down her pants and underwear, exposed his penis, and attempted to separate her legs 

in an attempt to penetrate her vagina, all while K.H. was sleeping in the same room. 

He stopped when he heard mother’s phone making noises. He then left the home.

After the incident, mother left K.H. with the maternal grandparents who lived in 

a house at the back of the same property where mother and father lived. She went to 

work and called the police to report the incident. The dispatcher told her there was 

nothing they could do because father lived in the home and advised her to obtain a 

restraining order. She went to the courthouse to obtain the restraining order but was 
3

unable to complete the process because she did not have all of the requisite

information.

When mother returned home that afternoon, father was upset, put K.H. in his 

car, and attempted to leave with her. Mother tried to talk to him but he locked the

doors and ignored her. She called the police and stood behind the car to block him 

from leaving; after several minutes, he exited the car and allowed her to take K.H. into 

the home. A police officer eventually arrived and advised mother to obtain a 

restraining order.

Later that evening, father wanted to discuss the custody papers with mother. 

Mother feared he would become upset again, so she took K.H. to the maternal 

grandparents’ house. When she returned, father asked why she was seeking sole 

custody. He began to touch her breasts and vagina and lifted her blouse and bra, 

exposing her breasts. He then grabbed her by the arms, pinned her down on the couch, 

pulled down her pants and underwear and began to touch her vagina. She asked him 

to stop several times and struggled against him. He exposed his penis and attempted to 

sodomize her but could not get an erection. He became frustrated, got up, and left the 

home to pick up K.H. from the maternal grandparents’ home. Mother called the police 

and reported the attempted rape. The police came to the home and arrested father 

when he returned from the maternal grandparents’ home. 

As a result of the incident, mother received an emergency protective order on 

behalf of herself and K.H. On September 18, 2014, she filed for a permanent 

restraining order. The hearing on the permanent restraining order was scheduled for 

October 8, 2014, and a temporary restraining order was granted until that hearing 

naming mother and K.H. as protected persons.

During DCFS’s initial investigation, mother said this incident was the only time 

father had ever forcibly attempted to have sex with her. She denied any history of 

domestic violence and denied father used drugs or alcohol. However, she intended to 

press charges and did not want father to return to the home or have any contact with 

K.H.
4

The maternal grandparents denied ever witnessing any domestic violence 

between mother and father; they claimed to never have seen father be aggressive 

toward anyone. Maternal grandmother also indicated she never had any concerns for

the safety of mother or K.H. She said K.H. was well cared for by both parents.

On October 7, 2014, DCFS filed a petition pursuant to Welfare and Institutions 

Code section 300,

1 subdivisions (a) and (b) on behalf of K.H. The petition alleged 

K.H. was at risk of harm due to father’s history of violent and assaultive behavior in 

the presence of K.H. In its detention report, DCFS found “the potential risk for further 

risk to the safety of the child . . . to be ‘High’.” DCFS recommended K.H. be detained 

in mother’s home and father have monitored visits. At the detention hearing on 

October 7, 2014, the juvenile court found a prima facie showing for detention had been 

made as to father, detained K.H. from him, and released her to mother. Pursuant to 

mother’s request, the juvenile court also issued another temporary restraining order 

protecting mother and K.H. from father and providing for supervised visitation 

between K.H. and father.

Father consistently visited with K.H. twice a week at the DCFS offices. K.H. 

appeared happy to see him and greeted him with a hug and kiss. The supervising 

children social worker (SCSW) observed healthy and appropriate interactions between 

them.

At the December 15, 2014 combined jurisdictional/dispositional hearing and

hearing on the issuance of a permanent restraining order, the court sustained the 

petition, declared K.H. a dependent, and ordered K.H. removed from father’s custody 

and placed with mother with family maintenance services and family reunification 

services to father. The court also issued a permanent restraining order protecting 

mother and K.H. from father through December 15, 2017, with a “carve out” for 

monitored visits for father.

 

1 All statutory citations are to the Welfare and Institutions Code unless otherwise 

noted.
5

Father timely appealed, challenging only the juvenile court’s inclusion of K.H. 

in the permanent restraining order.

2

DISCUSSION

Section 213.5, subdivision (a) provides in relevant part: “After a petition has 

been filed pursuant to Section 311 to declare a child a dependent child of the juvenile 

court, and until the time that the petition is dismissed or dependency is terminated, 

upon application in the manner provided by Section 527 of the Code of Civil 

Procedure or in the manner provided by Section 6300 of the Family Code, if related to 

domestic violence, the juvenile court has exclusive jurisdiction to issue ex parte orders 

(1) enjoining any person from molesting, attacking, striking, stalking, threatening, 

sexually assaulting, battering, harassing, telephoning, including, but not limited to, 

making annoying telephone calls as described in Section 653m of the Penal Code, 

destroying the personal property, contacting, either directly or indirectly, by mail or 

otherwise, coming within a specified distance of, or disturbing the peace of the child or 

any other child in the household; and (2) excluding any person from the dwelling of 

the person who has care, custody, and control of the child. A court may also issue an 

ex parte order enjoining any person from molesting, attacking, striking, stalking, 

threatening, sexually assaulting, battering, harassing, telephoning, including, but not 

limited to, making annoying telephone calls as described in Section 653m of the Penal 

Code, destroying the personal property, contacting, either directly or indirectly, by 

mail or otherwise, coming within a specified distance of, 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, upon application in the 

manner provided by Section 527 of the Code of Civil Procedure or, if related to 

domestic violence, in the manner provided by Section 6300 of the Family Code.” Any 

 

2 In the juvenile court DCFS took no position on mother’s request for a 

restraining order and takes no position on father’s appeal. Mother has filed a brief 

opposing father’s request to remove K.H. from the restraining order.
6

order may remain in effect for up to three years unless otherwise terminated by the 

court. (§ 213.5, subd. (d)(1).)

The juvenile court may issue a restraining order pursuant to section 213.5 when 

the evidence shows the failure to do so “may jeopardize the safety of the petitioner.” 

(In re B.S. (2009) 172 Cal.App.4th 183, 194 (B.S.).) An order need not rest on 

evidence of “a reasonable apprehension of future abuse” (In re C.Q. (2013) 219 

Cal.App.4th 355, 363 (C.Q.)) or even on “evidence that the restrained person has 

previously molested, attacked, struck, sexually assaulted, stalked, or battered the 

child” (B.S., supra, at p. 193). A showing of prior violent conduct, however, is 

sufficient. (Id. at p. 194 [evidence of prior domestic violence].) We review the 

juvenile court’s decision for substantial evidence, viewing the evidence “‘in a light 

most favorable to the respondent, and indulg[ing] 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.’” (C.Q., supra, at p. 364.)3

Substantial evidence supported the juvenile court’s inclusion of K.H. in the 

restraining order. Although there was no evidence of prior instances of domestic 

violence or abusiveness by father, his conduct leading to the dependency petition in 

this case was frightening and outrageous. After being served with custody papers, he 

became so angry he sexually assaulted mother while their sleeping two-year-old 

daughter was in the same room. He later attempted to leave with K.H. and locked her 

in the car, refusing to allow mother access to her and forcing mother to use her body to 

physically block him from driving away. Later that same day, after again arguing 

about mother’s request for custody, he sexually assaulted mother and attempted to 

 

3 In In re Brittany K. (2005) 127 Cal.App.4th 1497, 1512, the court reviewed the 

juvenile court’s factual findings for substantial evidence and reviewed the issuance of 

the restraining order for abuse of discretion. (See C.Q., supra, 219 Cal.App.4th at 

p. 364.) Even if we applied that combined standard here, we would find no abuse of 

discretion.
7

sodomize her. The only reason K.H. was not present when this later assault occurred

was because mother had taken her to the maternal grandparents’ home, fearing father 

would become angry again.

This case is similar to B.S., in which the father repeatedly committed domestic 

violence against the mother, during which father had little ability to control himself, 

tearing a door off its hinges and knocking a hole in a wall. During the most recent 

incident, he was “‘pushing and swinging wildly’” at the mother as they both “‘stood 

over’” the child, and he ultimately grabbed the mother and “threw her down on top of” 

the child. (B.S., supra, 172 Cal.App.4th at p. 194.) From this evidence, it was “fairly 

inferable that the father threw the mother onto [the child] intentionally, even if he 

himself then fell accidentally,” demonstrating willful disregard for the child’s safety. 

(Ibid.)

Here, although there was no evidence father intentionally sought to harm K.H., 

his assaults were just as egregious as the father’s violent outbursts in B.S., if not more 

so given their sexual nature. And like the child in B.S., K.H. was in harm’s way—she 

was in the room during one of father’s assaults on mother and father locked her in the 

car at one point to keep her from mother. The only reason K.H. was not at risk from 

father’s last assault was because mother had the foresight to remove her from the 

house before father arrived. From this evidence the juvenile court reasonably 

concluded his increasingly violent actions might jeopardize K.H.’s physical safety. As 

the court in B.S. stated in affirming the inclusion of the child in the protective order 

against father, “Even assuming an opposite inference might be equally reasonable, we 

are not authorized to second-guess the juvenile court on this point.” (B.S., supra, 172 

Cal.App.4th at p. 194.)

Father relies on C.Q., but it is distinguishable. In that case, the court found 

insufficient evidence to include the children in the restraining order against the father 

after he had thrown boxes of glass figurines to the ground and punched the mother in 

the arm while the children were nearby. Crying, their 12-year-old daughter stepped 

between them and asked the father not to hit the mother, at which point he left the 
8

home. The daughter was not injured. (C.Q., supra, 219 Cal.App.4th at p. 358.) 

Father’s sexual assaults here were far more serious than the father’s conduct in C.Q.

and placed K.H. at much more serious risk than the children in that case. And rather 

than deescalate his aggressive and sexually assaultive behavior against mother as the 

father did in C.Q., father here continued his assaults on mother without regard for her 

or K.H.’s safety.

Thus, substantial evidence supported the juvenile court’s inclusion of K.H. in 

the restraining order.

DISPOSITION

The juvenile court’s order is affirmed.

FLIER, J.

WE CONCUR:

BIGELOW, P. J.

GRIMES, J.