Filed 6/26/15 In re K.H. CA2/8
                 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                DIVISION EIGHT


In re K.H., a Person Coming Under the                                  B261166
Juvenile Court Law.                                                    (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.
                                                      ******
       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



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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.


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         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.


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       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.


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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.


                                            6
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


                                               7
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.




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