Filed 6/26/19; Certified for Publication 7/18/19 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                     SECOND APPELLATE DISTRICT

                                 DIVISION TWO


In re A.M., a Person Coming Under                      B293062
the Juvenile Court Law.                                (Los Angeles County
                                                       Super. Ct. No.
                                                       18CCJP03843A)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

        Plaintiff,

        v.

C.M.,

        Defendant and Respondent;

AL.M.,

        Defendant and Appellant.


     APPEAL from an order of the Superior Court of
Los Angeles County. Natalie P. Stone, Judge. Affirmed.
     Jesse McGowan, under appointment by the Court of
Appeal, for Defendant and Appellant.

      Shaylah Padgett-Weibel, under appointment by the Court
of Appeal, for Defendant and Respondent.

      Mary C. Wickham, County Counsel, and Kim Nemoy,
Principal Deputy County Counsel, for Plaintiff.

                   _________________________




       Al.M. (father) sexually abused A.M. (minor) and the
juvenile court issued a two-year restraining order prohibiting
father from having any visitation or contact with minor. Father
appeals the portion of the restraining order denying him any
contact, claiming it is not supported by substantial evidence. We
find no error and affirm.
                               FACTS
       Minor was born in November 2005.
       The evidence in the dependency proceeding below
established that father and C.M. (mother) periodically lived
together for short periods of time during an on and off
relationship. They were never married. When they were apart,
he would occasionally visit minor and stay overnight at mother’s
house. In October 2007, when minor was almost two years old,
she pointed to her vagina and buttock and said, “Papi aqui.”




                                2
       In July 2009, minor told mother that father bit her while on
a bed, and then said that father touched her private parts over
her clothing. She said that father licked her vagina five times,
and that it was underneath her underwear. There was a
subsequent investigation, and the allegation was substantiated.
The police thought minor was repeating something that she had
heard on television and dropped charges against father. Mother
forced father out of the house. Nonetheless, minor had overnight
visits with father.
       In 2016, mother and father began dating again. She gave
birth to G.M., a boy, in April 2018.1
       On April 19, 2018, mother found a note in minor’s pocket
saying that father had raped her. When mother talked to minor,
she denied that there had been any penetration, and said father
had not threatened her. Minor never reported the abuse because
she did not want her unborn brother to grow up with separated
parents, and she did not want her mother to be stressed and lose
the baby.
       Mother texted father and confronted him about touching
minor. He called and mother asked, “How could you do this to
your daughter?” He did not confirm or deny the allegations. He
said it was a misunderstanding and that he wanted to talk to
mother and minor about it. That night, mother filed a police
report.
       On April 20, 2018, the Department of Children and Family
Services (Department)2 received a report that minor had been
sexually abused by father and wanted to kill herself. In her
initial interview with a social worker, minor confirmed the

1     G.M. is not a subject of this appeal.
2     The Department takes no position in this appeal.




                                3
referral allegations, said she was no longer suicidal, and that the
abuse started when mother was two months pregnant in
September 2017.
       While recounting instances of abuse, she explained that
father would get in bed behind her, rub his penis against her
buttocks and vagina, and squeeze her breasts under her clothing.
At times he would use two fingers to rub her vagina over her
clothing. Father had a pattern: he would lie next to her to touch
her, then go to the bathroom for a long time, and then return to
touch her again. The touching would last an hour to an hour and
a half. During the abuse, she was fully clothed but believed that
father was undressed because of the way his penis felt. She
pretended to be asleep. He would put his finger into her vagina
over her clothes, and it hurt her “a little bit.” One time he tried
to put his hand inside her shorts but stopped when she elbowed
him.
       She was scared and confused during the abuse, which
occurred at night. During the day, he would act normal as
though nothing had happened. He would talk about God and say
that because people are born with a conscience, they know what
is right or wrong. In the minor’s opinion, he was trying to justify
what he had done to her. She had headaches and her body was
sore. The last time he touched her was on Valentine’s Day 2018.
       Father denied the allegations and blamed them on minor
not wanting him to resume a relationship with mother. Also, he
blamed it on minor being jealous due to the prospect of having a
sibling, and on maternal grandmother for trying to interfere and
keep mother away from him.
       In early May 2018, mother went to Family Law Court to
obtain a restraining order against father. The Family Law Court




                                 4
granted a temporary restraining order pending a September 13,
2018, hearing on the merits.
       Twice, minor conducted pretext phone calls to father. He
did not make any incriminating statements. Minor sent a text
message directly addressing the issue of sexual abuse but father
did not respond.
       A social worker called father and offered to arrange a
polygraph test. He did not respond.
       On June 6, 2018, the Department obtained an order to
remove minor and G.M. from father. About two weeks later, the
Department filed a petition under Welfare and Institutions Code
section 300, subdivisions (b)(1) and (d)3 as to both children, and
under subdivision (j) as to G.M. The petition contained
allegations that father sexually abused minor, and that mother
failed to protect minor from father.
       A detective submitted the case to the District Attorney but
no criminal charges were filed.
       The juvenile court detained the children from father and
released them to mother. It held a combined adjudication and
disposition hearing on September 13, 2018, and it considered the
request for a restraining order.4 The juvenile court stated that it
had considered a video of an interview with minor as well as the
rest of the record and found minor to be consistent and credible
every time she gave an account of the sexual abuse. Then the

3     All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.

4      California Rules of Court, rule 5.630(a) establishes that
after the Department has filed a petition under section 300, a
juvenile court is authorized to issue a restraining order as
provided in section 213.5.




                                 5
juvenile court stated, “I just completely disagree with the
reported results from the police and find that, in fact, all these
allegations are . . . true. The father did rub his penis on her. He
fondled her vagina and her breast. And this is a total abrogation
of his role as a father and very, very detrimental to his child.”
       The juvenile court struck the failure to protect allegations
against mother. It then sustained the amended petition as to
both children based on the section 300 subdivisions (b), (d) and (j)
allegations against father.
       Turning to disposition, the juvenile court was informed that
minor did not want visitation with father. It removed the
children from his custody and ordered that he receive family
enhancement services. In contrast, as to father, no reunifications
services were ordered. While father was granted visitation with
G.M., he did not receive visitation with minor. Father was
ordered to participate in a parenting class, sex abuse counseling
for perpetrators, and individual counseling.
       The juvenile court granted a restraining order prohibiting
father from having any contact with minor, “either directly or
indirectly in any way, including but not limited to, in person, by
telephone, in writing, by public or private mail, by e-mail, by text
message, by fax, or by other electronic meas.” The order was for
two years.
       This appeal followed.




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                          DISCUSSION
       A restraining order under section 213.5 is reviewed for an
abuse of discretion. The juvenile court’s factual findings are
upheld if they are supported by substantial evidence. (In re
Carlos H. (2016) 5 Cal.App.5th 861, 866.)
       Under section 213.5, a juvenile court may issue an order
enjoining any person from contacting a child if such contact
would jeopardize the child’s safety. (In re C.Q. (2013) 219
Cal.App.4th 355, 363; In re B.S. (2009) 172 Cal.App.4th 183, 194
[analogizing section 213.5 to Family Code section 6340, a statute
permitting a protective order if the failure to issue the order may
jeopardize the petitioner’s safety].) Because this issue arises in a
dependency proceeding, we must keep in mind that the “purpose
of a dependency hearing is to determine the best interests of the
child and to protect those interests. [Citations.]” (In re Cheryl H.
(1984) 153 Cal.App.3d 1098, 1132, disapproved on other grounds
in People v. Brown (1994) 8 Cal.4th 746, 749, 763.)
       Father argues that there was no credible evidence that an
order restricting all communication between minor and him was
necessary to ensure her safety. He cites evidence of minor’s
mental resiliency despite the sexual abuse. The suggestion is
that because minor has been resilient, she is strong enough to
have contact with him.
       These arguments are unavailing.
       The evidence established that father groomed and sexually
abused minor over many years, and that the nature of the sexual
abuse progressed. During the sexual abuse, she was scared and
confused. After he sexually abused her, he would talk about God,
and she thought that he was trying to justify his actions. When
his behavior came to light, father denied the sexual abuse,




                                 7
suggesting that he does not understand the damage he has done
to her, and further suggesting a high risk that the grooming
would continue if he was given access to her in any fashion.
Importantly, her attorney informed the juvenile court minor did
not want to see father. We conclude there was sufficient evidence
that any contact between father and minor would jeopardize her
emotional and psychological safety regardless of whether she has
been resilient. Further, if father had contact with minor through
phone calls, e-mails, texts or other methods, the evidence
suggests a risk that father would try to manipulate her into
seeing him. Thus, there is a sufficient basis to also conclude that
her physical safety would be at risk but for the restraining order
proscribing all contact.
      Father argues that the “dependency scheme includes a
presumption that the safety of a dependent child who was
subjected to non-severe sexual abuse can be adequately protected
without completely restricting the child’s contact with the
offending parent. The juvenile court must order reunification
services for the mother and statutorily presumed father.
[Citation.] An order for reunification services must include some
form of visitation, which necessarily includes communication
between parent and child. [Citation.] The juvenile court may
bypass reunification services for a parent if the child was
subjected to sexual abuse, but only if the child was subjected to
‘severe sexual abuse.’ [Citation.]”
      We roundly reject this argument.
      The issue here is the restraining order, not whether the
juvenile court should have granted reunification services but did
not due to a misapplication of section 361.5, subdivision (b)(6)
[establishing that reunification services need not be provided in




                                 8
cases of severe sexual abuse]. And, as father concedes, he was
not entitled to reunification services because mother retained
physical custody of minor. (In re Pedro Z. (2010) 190 Cal.App.4th
12, 19.) For these reasons alone, father’s argument misses the
mark by a wide margin.
        As for the argument that father’s sexual abuse of his
daughter was not severe, this was not argued below and is
therefore waived. (Hepner v. Franchise Tax Bd. (1997) 52
Cal.App.4th 1475, 1486.) Further, the argument is flawed.
Section 361.5, subdivision (b)(6)(B) provides that a finding of
severe sexual abuse “may be based on, but is not limited to,” a list
of acts, including “the penetration or manipulation of the child’s,
. . . genital organs or rectum by any animate . . . object for the
sexual gratification of the parent[.]” Here, there is evidence that
father manipulated minor’s vagina by rubbing it, and also that he
penetrated her vagina. That he did so over her clothing does not
discount such heinous invasions.
        The evidence was sufficient to establish that a restraining
order was necessary to ensure minor’s safety. The juvenile court
did not abuse its discretion.




                                 9
                        DISPOSITION
     The order is affirmed.




                              _____________________, Acting P. J.
                              ASHMANN-GERST


We concur:



_______________________, J.
CHAVEZ



_______________________, J.
HOFFSTADT




                               10
Filed 7/18/19
                 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                     SECOND APPELLATE DISTRICT

                           DIVISION TWO


In re A.M., a Person Coming           B293062
Under the Juvenile Court Law.         (Los Angeles County
                                      Super. Ct. No.
                                      18CCJP03843A)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN                ORDER CERTIFYING
AND FAMILY SERVICES,                  OPINION FOR
                                      PUBLICATION
        Plaintiff,

        v.

C.M.,

        Defendant and Respondent;

AL.M.,

        Defendant and Appellant.
THE COURT:

      The opinion in the above-entitled matter filed on June 26,
2019, was not certified for publication in the Official Reports.

      For good cause it now appears that the opinion should be
published in the Official Reports and it is so ordered.




____________________________________________________________
ASHMANN-GERST, Acting P. J. CHAVEZ, J. HOFFSTADT, J.




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