Filed 1/30/15 In re Elizabeth U. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re ELIZABETH U., a Person Coming Under the Juvenile Court Law. D066558 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. J518337) Plaintiff and Respondent,
v.
KELLY U.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Carol
Isackson, Judge. Affirmed.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant
and Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and
Respondent. Patricia K. Saucier, under appointment by the Court of Appeal, for Minor.
Kelly U. appeals the juvenile court's issuance of a restraining order under Welfare
and Institutions Code section 213.5,1 which prohibits her from having any contact with
her 17-year-old daughter, Elizabeth U., for a three-year period. She contends sufficient
evidence does not support the juvenile court's issuance of the restraining order in the first
instance, or that continued visitation would be detrimental to Elizabeth. The San Diego
County Health and Human Services Agency (Agency) contends we should dismiss
Kelly's appeal as moot because the juvenile court, based on the parties' stipulation,
modified the order once to allow contact on four occasions in November and December
2014.
We conclude the appeal is not moot. We further conclude substantial evidence
supports the juvenile court's issuance of the restraining order and its finding that visits
would be detrimental to Elizabeth. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Jurisdiction
Elizabeth was treated at a hospital emergency room on January 25, 2012, after
sustaining a golf ball-sized knot on her forehead. She and Kelly had been arguing, when
Kelly threw a three-inch-thick candle at Elizabeth's head. During the argument, Kelly
told Elizabeth, "[i]f you make me late for school and I miss out on my money I will kill
you and myself and I don't care if I go to jail." Kelly also told Elizabeth, "I wish you
1 All further statutory references are to the Welfare and Institutions Code. 2 would have died instead of Lance." Lance was Kelly's other child, who had died just a
few months earlier at the age of 12 from complications caused by diabetes. Kelly had a
history of mental instability, drug use, and aggressive behavior. She previously had been
arrested for domestic violence, which included physical altercations with her sister and
inflicting corporal injury on a spouse. She had also been hospitalized for suicidal
thoughts and anger problems. Elizabeth was taken into protective custody.
Two days later, the Agency filed a petition on Elizabeth's behalf, alleging she
came within the court's jurisdiction under section 300, subdivisions (a) and (b), based on
the candle incident and Kelly's histories of mental illness and drug use. Elizabeth wished
to reunify with Kelly in the future, but wanted to remain in out-of-home care while Kelly
participated in reunification services. Elizabeth would not feel safe in Kelly's care until
she got help for her drug problem, stabilized her mental health, and stopped hitting her.
Although she was normally a good student, Elizabeth's grades declined because of
the issues at home and her brother's illness and death. She disclosed having a personal
anger problem of her own, which began four years earlier when her father, David A., left
the home after sexually molesting Elizabeth. 2
Kelly disclosed she had been diagnosed with anxiety and agoraphobia. She denied
having ever been hospitalized for mental health issues, but acknowledged police took her
to a hospital for assessment in 2011 after police were informed she was being
" 'challenging' towards school staff." She claimed to have "already tried 22 psychotropic
2 David is not a party to this appeal. We mention him only as relevant to Kelly's appeal. 3 meds and that they don't seem to help her," so she occasionally self-medicated with
marijuana and crystal methamphetamine. Kelly was attempting to get social security
income disability benefits because of her anxiety.
In March 2012, the juvenile court sustained the petition, declared Elizabeth a
dependent, and ordered her placed in the home of a nonrelative extended family
member. 3 The court ordered the Agency to provide reunification services to Kelly.
Six-Month Review
The Agency's six-month review report recommended Elizabeth remain in out-of-
home care while Kelly participated in another six months of reunification services. Kelly
was unemployed and her housing was unstable. She had participated in supervised visits
but had not complied with the other components of her case plan. Her interactions with
Agency staff were aggressive and inappropriate—she yelled, invaded personal space, and
touched social workers—leading the Agency to restrict communications with her to mail
and telephone. Even then, Kelly was hostile and repeatedly hung up on Agency staff.
Elizabeth's grades had improved and she made progress in individual therapy. Her
psychiatrist placed her on psychotropic drugs for depression, sleeping issues, and loss of
appetite. The medications worked well for Elizabeth.
Supervised visits between Kelly and Elizabeth "varied between acceptable and
very poor." During visits early in the review period, Kelly disregarded the caregiver's
3 "A 'nonrelative extended family member' is defined as an adult caregiver who has an established familial relationship with a relative of the child . . . or a familial or mentoring relationship with the child." (§ 362.7.) 4 rules, disrespected and threatened the caregiver, made inappropriate comments to
Elizabeth about the case, and told Elizabeth that her (Kelly's) new boyfriend's children
were Kelly's "new little [Elizabeth] and Lance." Kelly was disruptive during one of
Elizabeth's school events, causing a scene that humiliated Elizabeth. Someone called the
police, but Kelly left before they arrived. Kelly was also disruptive during church
services attended by Elizabeth and her caregiver. Consequently, the Agency required
future visits be supervised at a family visitation center instead of by Elizabeth's caregiver
or maternal relatives. After six weeks of poor visits at the visitation center, the quality of
visits improved during the last six weeks of the review period.
In October 2012, the court ordered that Elizabeth remain placed in out-of-home
care while Kelly received an additional six months of reunification services. The court
allowed limited unsupervised visits, but only if Kelly was in compliance with every
portion of her case plan.
12-Month Review
The Agency's 12-month review report recommended the court terminate
reunification services and order another permanent planned living arrangement (APPLA)
as Elizabeth's permanent plan. Kelly had not consistently participated in her reunification
services. She had been having unsupervised visits with Elizabeth in public places, like
community parks, once per week. She also had been having two supervised visits per
week at a family visitation center. Elizabeth enjoyed the visits, but sometimes they ended
poorly due to arguments, which were typically about Kelly " 'nagging' Elizabeth about
5 things such as drinking enough water,[4] wearing her glasses, Elizabeth's interactions
with boys, grades and 'having to respect' [Kelly]." The visitation center canceled its
services because of excessive cancellations and no-shows by Kelly, at which point K.U.,
a maternal aunt, began supervising the visits. K.U. reported the visits generally go well,
but "about once a month they have a bad visit where they argue or a visit is ended early."
Kelly was also involved in several incidents at Elizabeth's school. On two
occasions, Kelly was so disruptive that the school's director issued 30-day stay-away
orders. On a third occasion, someone called police after Kelly grabbed Elizabeth's arm in
an attempt to have a private conversation during a supervised visit.
Elizabeth began to feel less comfortable in her caregiver's home and requested that
she be placed with K.U.
At the 12-month review hearing in May 2013, the court ordered Elizabeth placed
with K.U. and set a postpermanency review hearing for October 2013.
October 2013 Postpermanency Review
The Agency recommended Elizabeth remain placed with K.U. under APPLA.
Elizabeth liked living with her aunt and felt comfortable in her home. Elizabeth was very
proud of her improved academic performance. K.U. observed that Elizabeth's behavior
gradually improved during the review period, except for one episode. One weekend in
August, Elizabeth was away without leave (AWOL). She explained she had stopped
taking a medication and felt angry, so she "decided to take off." When she returned
4 Doctors removed Elizabeth's left kidney at age one due to a tumor. 6 home, she appeared extremely agitated and stated she felt like hurting her dog and
various people in the home. A confidential source reported to the Agency that Elizabeth
had experimented with illicit drugs while AWOL. 5 Elizabeth agreed to enter Project Oz,
a two-week therapy program that helps teenagers learn to communicate and deal with
their feelings. Elizabeth completed the program and found it beneficial. She continued
to participate in therapy to help address her anger, her placement in out-of-home care,
and her grief over the death of her brother.
Meanwhile, Kelly was asked to leave her apartment. The added stressor of
housing may have destabilized her mental health—she made statements of wanting to
harm herself and reported she had attempted suicide. She continued to participate in
weekly counseling to address symptoms of depression, posttraumatic stress disorder,
anxiety, agoraphobia, and the death of her son.
Kelly continued to have supervised visits. Elizabeth loved Kelly very much, but
also felt frequent contact with her was a source of frustration. Elizabeth did not want to
visit Kelly without supervision due to fear for her safety and concern that Kelly's
behavior might escalate during unsupervised contact.
The court confirmed APPLA as the most appropriate permanent plan and set
another review hearing for June 2014.
5 While AWOL, Elizabeth reportedly stayed with her boyfriend, who was on probation for his own involvement with drugs. 7 June 2014 Postpermanency Review
The Agency recommended APPLA continue as Elizabeth's placement. She was
happy in the placement and her mood appeared to have stabilized under a new medication
prescribed by her psychiatrist. She was doing well in school and planning to attend
college.
Kelly, on the other hand, struggled with her mental health and had missed several
therapy appointments. She contacted Elizabeth's psychiatrist and told staff they could not
speak to anyone but Kelly about Elizabeth's condition, which interfered with K.U.'s
ability to care for Elizabeth. Kelly also stated she had diagnosed Elizabeth with bipolar
disorder, even though Kelly's observations were not realized by anyone else and were
likely a result of Kelly's own mental health issues. Kelly demanded Elizabeth's school
make certain accommodations for Elizabeth, even though her academic performance
demonstrated she did not require them.
One day in mid-May, as Kelly was on her way to K.U.'s house to visit Elizabeth,
K.U. had to rush her mother to the hospital, leaving Elizabeth under the supervision of
K.U.'s adult son, R.U. R.U. later left to visit his critically ill grandmother at the hospital,
temporarily leaving Kelly and Elizabeth unsupervised. An altercation erupted during
which Kelly put Elizabeth in a headlock, slapped her face, and tried to kick her.
Elizabeth called K.U. for help. K.U. called a neighbor, who got Elizabeth and took her to
the hospital to see her grandmother.
On June 2, Kelly went to Elizabeth's school and requested certain records. When
she was told the records were unavailable because the registrar was absent, Kelly became
8 belligerent, directed profanity at school staff, and yelled loudly enough that students
could hear her. School staff asked Kelly to leave, but she refused, telling staff they were
"in contempt and that they would be judged." Kelly eventually left after school staff
ordered her to do so. But she returned, found Elizabeth during her lunch break, and
yelled false accusations about bad grades and truancy in front of approximately 300
students. The school's director took Elizabeth to her office to " 'protect her from her
mother.' " Kelly followed them. She again became belligerent and told the director she
will be " 'judged' " and was " 'in contempt.' " The director was afraid of Kelly and called
911. Kelly quietly left when she saw the police approaching. The director issued Kelly a
two-week stay-away order.
Based on the May altercation and the June school disturbance, Elizabeth, through
her counsel, requested a restraining order against Kelly. The court issued a temporary
restraining order prohibiting Kelly from coming within 100 feet of Elizabeth's school or
K.U.'s home or going near K.U.'s car. The court indicated it would consider making the
order permanent at the contested postpermanency review hearing, which was continued
to August 14, 2014.
The Contested Hearing
On the day of the contested hearing, Kelly and Elizabeth got into an argument in
the courthouse lobby. Elizabeth was trying to say something to Kelly, but Kelly would
not let her finish. Elizabeth left the courthouse briefly, but returned in time for the
hearing. Because of the argument, however, Elizabeth requested the restraining order, if
issued, prohibit all contact between her and Kelly.
9 The court received stipulated testimony of Elizabeth, Kelly, and two family
friends, and received live testimony from K.U. and an Agency social worker. The court
also received a letter from Elizabeth in which she wrote "I WANT A SENIOR YEAR!"
Kelly was disruptive during the hearing. During the social worker's testimony,
Kelly left the courtroom. During K.U.'s testimony, Kelly waved her arms and made
outbursts. The court warned Kelly she may be removed if she did not control her
behavior. K.U. testified she had concerns for Elizabeth's mental and emotional well-
being during visits with Kelly: "when it gets bad it just gets really, really bad." K.U.
thought supervised visits could continue, but on Elizabeth's timetable and after a break.
At that point, Kelly blurted "You're a bitch. You're not right. You didn't even raise your
son. You're not right." The court instructed Kelly to leave the courtroom; she complied.
At the conclusion of the hearing, the court issued a restraining order directing that
Kelly not contact Elizabeth and remain at least 100 yards away from her home and school
for three years. The court found visitation would be detrimental to Elizabeth. The court
invited counsel to seek modification of the restraining order if circumstances changed.
Kelly timely appealed the restraining order.
The Order Modifying the Restraining Order
Kelly subsequently petitioned the court under section 388 for an order modifying
the restraining order to allow contact at four specified events in November and December
10 2014.6 Based on the parties' stipulation, the court modified the restraining order as
requested.
DISCUSSION
Kelly contends the juvenile court erred by issuing a restraining order that
terminated all contact between her and Elizabeth for three years. The Agency contends
Kelly's appeal is moot because the juvenile court modified the restraining order to allow
the contacts discussed above. Alternatively, the Agency contends substantial evidence
supports the court's findings that underlie the restraining order.
I.
THE APPEAL IS NOT MOOT
"It is not uncommon for an appellate court to take judicial notice of subsequent
proceedings in the juvenile court and find the appeal has been rendered moot." (In re
Karen G. (2004) 121 Cal.App.4th 1384, 1390; In re Jessica K. (2000) 79 Cal.App.4th
1313, 1315 ["When no effective relief can be granted, an appeal is moot and will be
dismissed."].) The Agency has requested that we do so here. Although we have granted
the Agency's motion requesting that we take judicial notice of the order modifying the
restraining order, we decline to dismiss the appeal as moot.
The restraining order prohibits any contact between Kelly and Elizabeth from
August 2014 until August 2017. The modification order allowed only limited contact on
6 The events were as follows: (1) attending Elizabeth's last volleyball game on her birthday (in November) and going to dinner with her afterward; (2) attending Thanksgiving dinner at K.U.'s house; (3) having lunch with K.U. and Elizabeth on Kelly's birthday (in December); and (4) attending Christmas brunch at K.U.'s house. 11 four specified occasions, all of which occurred in November and December 2014.
Although contact on those occasions was likely emotionally material to Kelly and
Elizabeth, we conclude they are legally immaterial in determining whether we can grant
effective relief with respect to the remainder of the restraining order's three-year term.
Accordingly, we deny the Agency's request to dismiss the appeal as moot.
II.
THE JUVENILE COURT DID NOT ERR IN ISSUING THE RESTRAINING ORDER
Once a juvenile dependency petition has been filed, section 213.5, subdivision (a),
permits the juvenile court to issue an order "enjoining any person from molesting,
attacking, striking, stalking, threatening, sexually assaulting, battering, harassing,
telephoning . . . , contacting . . . , coming within a specified distance of, or disturbing the
peace of the child . . . and . . . excluding any person from the dwelling of the person who
has care, custody, and control of the child." In reviewing the restraining order, "we view
the evidence in a light most favorable to the respondent, and indulge 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." (In re Cassandra B. (2004) 125 Cal.App.4th 199, 210-211.) "[E]vidence that
the restrained person has previously molested, attacked, struck, sexually assaulted,
stalked, or battered the child is certainly sufficient." (In re B.S. (2009) 172 Cal.App.4th
183, 193.)
The record establishes Kelly physically abused Elizabeth on at least two
occasions, first by throwing a candle that hit Elizabeth in the head; then by putting
12 Elizabeth in a headlock, slapping her, and trying to kick her. This alone constitutes
substantial evidence sufficient to justify the restraining order. (In re B.S., supra, 172
Cal.App.4th at p. 193; In re C.Q. (2013) 219 Cal.App.4th 355, 363 [§ 213.5 does not
require "evidence of a reasonable apprehension of future abuse"].)
The record further establishes Kelly's disruptive behavior constitutes
" 'molest[ation]' " that may be enjoined under section 213.5. (In re Cassandra B., supra,
125 Cal.App.4th at p. 211.) " '[M]olesting' " need not be sexual; it may include activity
that is troubling, disturbing, annoying or vexing. (Id. at p. 212.) In In re Cassandra B.,
the Court of Appeal found "ample evidence" the mother was " 'molesting' " or "annoying"
her nine-year-old daughter by "attempting to gain entry to the home of Cassandra's
caregivers without their knowledge, appearing at Cassandra's school and then following
behind the caregiver's car after Cassandra was picked up from school, together with her
threats to remove Cassandra from her caregivers' home . . . ." (Id. at pp. 212-213.)
Similarly, in In re Brittany K. (2005) 127 Cal.App.4th 1497, 1512, the Court of
Appeal affirmed a permanent injunction where substantial evidence established that the
children's grandmother, who was seeking custody of them, "concealed herself at a
scheduled visitation between the minors and their birth mother so as to obtain
unauthorized access to them; surreptitiously searched out and located the confidential
location of the foster residence, in violation of their intended privacy; hired a private
detective to spy on the minors' comings and goings at their foster home; and showed up
unannounced at each of the minors' schools, where she proceeded to make defamatory
13 accusations about the foster parents to school authorities and attempted to make
unauthorized contact with the minors."
Elizabeth's school director issued three stay-away orders because of Kelly's
disruptive, belligerent, and aggressive behavior. School officials called police three times
because of Kelly's behavior. Kelly humiliated Elizabeth in front of 300 schoolmates and
caused a scene at church. Kelly acknowledges in her briefing on appeal that "she cannot
always keep her responses within appropriate boundaries." On this record, the juvenile
court's issuance of the restraining order was supported by substantial evidence.
Kelly contends the restraining order is too broad because it terminates all contact
and visitation. As this court has noted, "[v]isitation between a dependent child and his or
her parents is an essential component of a reunification plan, even if actual physical
custody is not the outcome of the proceedings. [Citation.] . . . However, '[n]o visitation
order shall jeopardize the safety of the child.' (§ 362.1, subd. (a)(1)(B).) It is ordinarily
improper to deny visitation absent a showing of detriment." (In re Mark L. (2001) 94
Cal.App.4th 573, 580 (Mark L.).) The substantial evidence standard of review applies to
a determination that visitation would be detrimental to the child. (Id. at p. 581, fn. 5.)
The juvenile court found "specifically that visitation, based on the evidence before
the court, would be detrimental" to Elizabeth. Addressing Elizabeth, the court explained
its reasoning at length: "I don't view you as emotional to the extent that you are going to
change your mind or don't know what you're doing or that this is a rash act. [¶] We have
been talking about visitation with your mother for months and months and months. You
have bent over backwards to be accommodating, as your aunt said. [¶] You've spent your
14 life trying to compromise. It is a painful reality. And I can say this at this point, since
your mom is not present in the courtroom, to have to come to terms, to accept the fact
that your mom is mentally ill. And that's something that I know you know. [¶] I'm not
telling you anything you don't know. But it's very difficult to have to deal with, and you
have been impressive in terms of your willingness to try and meet her more than halfway.
[¶] You've really worked at it, and we've had all sorts of permutations as to visitation in
here. We've tried it and tried it, and we really have not been able to be successful at it.
[¶] And I think that not only do you deserve a senior year that is a good senior year, both
academically and emotionally, but in addition you deserve time to not have this stressor
put upon you. [¶] You've got enough going on with school and having to try to do well
this year, thinking about college. We need to give you relief from this ongoing kind of
problem in terms of dealing with the visitation and the family dynamics that get triggered
by it. [¶] Your aunt's in a tough position, you're in a tough position, the rest of the family
gets mobilized, and I think it's not in your best interest."
In light of Elizabeth's own struggles with mental health issues, her fear of her
mother's instability, and her desire to enjoy her senior year of high school and focus on
college preparation, we conclude the same evidence that supports the issuance of the
restraining order in the first instance similarly constitutes substantial evidence that
continued visitation would be detrimental to Elizabeth. Courts have found substantial
evidence of detriment under similar circumstances. For example, in Mark L., this court
affirmed the juvenile court's finding of detriment where the 16-year-old dependent
testified he did not want to visit his father because he was still afraid of him (the father
15 had physically abused the son when he was five and six years old). (Mark L., supra, 94
Cal.App.4th at pp. 579, 581.) In In re Danielle W. (1989) 207 Cal.App.3d 1227, the
Court of Appeal affirmed the juvenile court's order providing for no visitation with the
mother until the children wanted it, where substantial evidence established the children
were angry with the mother because she failed to protect them against sexual abuse by
the stepfather. (Id. at p. 1238.) The court found detriment even though the mother had
since separated from the abuser, who no longer posed a threat to the children. (Id. at
pp. 1238-1239 ["The order does not constitute punishment of the parent but rather
protection of the minor's psychological well-being."].)
"The focus of dependency law is on the well-being of the child, and we do not
fault the court for determining forced contact with [Kelly] may harm [Elizabeth]
emotionally." (Mark L., supra, 94 Cal.App.4th at p. 581.) Further, we commend the
juvenile court for inviting the parties to seek a modification of the order if circumstances
change, as has already happened once.
DISPOSITION
The order is affirmed.
IRION, J. WE CONCUR:
HALLER, Acting P. J.
MCDONALD, J.