Filed 12/4/20 K.T. v. S.T. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
K.T.,
Petitioner and Appellant, E073333 v. (Super.Ct.No. FAMSS1810252) S.T., OPINION Defendant and Respondent.
APPEAL from the Superior Court of San Bernardino County. Shannon Suber,
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Angelique G. Bonanno for Petitioner and Appellant.
Vincent W. Davis and Slaveia L. Iankoulova for Defendant and Respondent.
K.T. (mother) and S.T. (father) were married; they have a daughter together
(child). When the child reported that the father had sexually abused her, Children and
Family Services (CFS) filed a dependency proceeding concerning her. The parents
separated and the mother filed for divorce. The juvenile court gave the mother sole
custody of the child and denied the father reunification services.
1 The mother then filed an application for a protective order that would restrain the
father from contacting both her and the child. For reasons best known to herself, she did
not file it in the dependency proceeding or in her divorce proceeding; rather, she filed a
new proceeding under the Domestic Violence Prevention Act (Act) (Fam. Code, § 6200
et seq.).
The trial court denied a protective order. With regard to the child, it explained that
the mother should have filed in juvenile court or the divorce court. With regard to the
mother, it explained that the father had not abused the mother directly.
The mother appeals. She argues that the trial court abused its discretion, in that
the reasons it stated did not support the denial of the restraining order.
We disagree. The trial court properly denied a restraining order in favor of the
child because the juvenile court had exclusive concurrent jurisdiction. It also properly
denied a restraining order in favor of the mother because, in light of the indirect nature of
the abuse, it could reasonably find that the denial would not jeopardize the mother’s
safety.
I
STATEMENT OF FACTS
In or before October 2018, the child reported that the father had sexually abused
her. CFS workers arrived at the family home to investigate. That was when the mother
first became aware of the alleged sexual abuse. The father worked at home, the mother
worked outside the home, and the sexual abuse took place when she was at work.
2 The father was arrested. In a dependency proceeding concerning the child, he
entered a plea of no contest. He maintained, however, that he did so, not because the
allegations were true, but rather to spare the child from trauma. The juvenile court
denied reunification services for the father. It ordered that he have no visitation or other
contact with the child, unless recommended by the child’s therapist. It also ordered that
the mother have sole legal and sole physical custody of the child.
Meanwhile, CFS continued to investigate whether the mother had failed to protect
the child. It required her to engage in therapy and parenting classes. The police
conducted a forensic evaluation of the child. The child also had to have counseling.
The mother was terminated from her job, “because she works with children.” She
had to sell her home. She and the child moved to a different area, so the child could have
“a fresh start.” She filed for divorce. “As a result of these incidents,” the mother
suffered “sleeplessness, . . . loss of appetite, shock, disbelief,” “anxiety and depression
. . . .”
As of the hearing in this case, the child’s dependency was still open. The father
was homeless. He had not had any contact with the child since the dependency was filed.
He had also had no contact with the mother.
3 II
STATEMENT OF THE CASE
In December 2018, the mother filed a petition for a domestic violence restraining
order. In it, she requested an order prohibiting the father from contacting her or the child.
The trial court issued a temporary restraining order.
In July 2019, the trial court held an evidentiary hearing on the petition. At the end
of the hearing, it denied a permanent restraining order. It accepted that the sexual abuse
occurred. However, it explained:
“There’s no allegations here that [the mother] witnessed anything that occurred
between the minor child and [the father]. And there’s no allegations that [the father]
threatened [the mother] or attempted to do any of the abusive conduct that’s enjoined in
Family Code section 6203.” “But the pleadings as they’re alleged . . . are really that
there’s an indirect relationship between the abuse suffered by the minor child that’s
affected the mother.”
“[A]s of now, the temporary order did its job, and there’s no reason for this court
to make a permanent order under the circumstances.”
“There is a juvenile court order. [The father] has abided by that order.” “And I
believe that the appropriate place to have orders made with regard to parents and children
is either family law court or juvenile court.” “[I]t’s the jurisdiction of the juvenile court
at this point to decide if they want to make a restraining order.”
4 III
DISCUSSION
The mother contends that the trial court erred by denying a permanent restraining
order, as to herself and as to the child.
A. Legal Background.
The Act authorizes the issuance of a restraining order “to prevent acts of domestic
violence, abuse, and sexual abuse . . . .” (Fam. Code, §§ 6220, 6300, subd. (a), 6340,
subd. (a)(1).) The moving party must be in a specified domestic relationship with the
person to be restrained. (Fam. Code, §§ 6211, 6301, subd. (a).) The moving party must
provide “reasonable proof of a past act or acts of abuse.” (Fam. Code, § 6300, subd. (a).)
The moving party need not show a likelihood of future abuse. (Nevarez v. Tonna (2014)
227 Cal.App.4th 774, 782-783.) However, the court must “consider whether failure to
make any of these orders may jeopardize the safety of the petitioner . . . .” (Fam. Code,
§ 6340, subd (a)(1).)
“Abuse” is defined as:
“(1) To intentionally or recklessly cause or attempt to cause bodily injury.
“(2) Sexual assault.
“(3) To place a person in reasonable apprehension of imminent serious bodily
injury to that person or to another.
“(4) To engage in any behavior that has been or could be enjoined pursuant to
Section 6320.” (Fam. Code, § 6203, subd. (a).)
5 Behavior that could be enjoined under Family Code section 6320 includes
“molesting, attacking, striking, stalking, threatening, sexually assaulting, battering,
credibly impersonating . . . , falsely personating . . . , harassing, telephoning, . . . ,
destroying personal property, contacting, . . . coming within a specified distance of, or
disturbing the peace of the other party, and, in the discretion of the court, on a showing
of good cause, of other named family or household members.” (Fam. Code, § 6320,
subd. (a), italics added.)
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Filed 12/4/20 K.T. v. S.T. CA4/2
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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
K.T.,
Petitioner and Appellant, E073333 v. (Super.Ct.No. FAMSS1810252) S.T., OPINION Defendant and Respondent.
APPEAL from the Superior Court of San Bernardino County. Shannon Suber,
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Angelique G. Bonanno for Petitioner and Appellant.
Vincent W. Davis and Slaveia L. Iankoulova for Defendant and Respondent.
K.T. (mother) and S.T. (father) were married; they have a daughter together
(child). When the child reported that the father had sexually abused her, Children and
Family Services (CFS) filed a dependency proceeding concerning her. The parents
separated and the mother filed for divorce. The juvenile court gave the mother sole
custody of the child and denied the father reunification services.
1 The mother then filed an application for a protective order that would restrain the
father from contacting both her and the child. For reasons best known to herself, she did
not file it in the dependency proceeding or in her divorce proceeding; rather, she filed a
new proceeding under the Domestic Violence Prevention Act (Act) (Fam. Code, § 6200
et seq.).
The trial court denied a protective order. With regard to the child, it explained that
the mother should have filed in juvenile court or the divorce court. With regard to the
mother, it explained that the father had not abused the mother directly.
The mother appeals. She argues that the trial court abused its discretion, in that
the reasons it stated did not support the denial of the restraining order.
We disagree. The trial court properly denied a restraining order in favor of the
child because the juvenile court had exclusive concurrent jurisdiction. It also properly
denied a restraining order in favor of the mother because, in light of the indirect nature of
the abuse, it could reasonably find that the denial would not jeopardize the mother’s
safety.
I
STATEMENT OF FACTS
In or before October 2018, the child reported that the father had sexually abused
her. CFS workers arrived at the family home to investigate. That was when the mother
first became aware of the alleged sexual abuse. The father worked at home, the mother
worked outside the home, and the sexual abuse took place when she was at work.
2 The father was arrested. In a dependency proceeding concerning the child, he
entered a plea of no contest. He maintained, however, that he did so, not because the
allegations were true, but rather to spare the child from trauma. The juvenile court
denied reunification services for the father. It ordered that he have no visitation or other
contact with the child, unless recommended by the child’s therapist. It also ordered that
the mother have sole legal and sole physical custody of the child.
Meanwhile, CFS continued to investigate whether the mother had failed to protect
the child. It required her to engage in therapy and parenting classes. The police
conducted a forensic evaluation of the child. The child also had to have counseling.
The mother was terminated from her job, “because she works with children.” She
had to sell her home. She and the child moved to a different area, so the child could have
“a fresh start.” She filed for divorce. “As a result of these incidents,” the mother
suffered “sleeplessness, . . . loss of appetite, shock, disbelief,” “anxiety and depression
. . . .”
As of the hearing in this case, the child’s dependency was still open. The father
was homeless. He had not had any contact with the child since the dependency was filed.
He had also had no contact with the mother.
3 II
STATEMENT OF THE CASE
In December 2018, the mother filed a petition for a domestic violence restraining
order. In it, she requested an order prohibiting the father from contacting her or the child.
The trial court issued a temporary restraining order.
In July 2019, the trial court held an evidentiary hearing on the petition. At the end
of the hearing, it denied a permanent restraining order. It accepted that the sexual abuse
occurred. However, it explained:
“There’s no allegations here that [the mother] witnessed anything that occurred
between the minor child and [the father]. And there’s no allegations that [the father]
threatened [the mother] or attempted to do any of the abusive conduct that’s enjoined in
Family Code section 6203.” “But the pleadings as they’re alleged . . . are really that
there’s an indirect relationship between the abuse suffered by the minor child that’s
affected the mother.”
“[A]s of now, the temporary order did its job, and there’s no reason for this court
to make a permanent order under the circumstances.”
“There is a juvenile court order. [The father] has abided by that order.” “And I
believe that the appropriate place to have orders made with regard to parents and children
is either family law court or juvenile court.” “[I]t’s the jurisdiction of the juvenile court
at this point to decide if they want to make a restraining order.”
4 III
DISCUSSION
The mother contends that the trial court erred by denying a permanent restraining
order, as to herself and as to the child.
A. Legal Background.
The Act authorizes the issuance of a restraining order “to prevent acts of domestic
violence, abuse, and sexual abuse . . . .” (Fam. Code, §§ 6220, 6300, subd. (a), 6340,
subd. (a)(1).) The moving party must be in a specified domestic relationship with the
person to be restrained. (Fam. Code, §§ 6211, 6301, subd. (a).) The moving party must
provide “reasonable proof of a past act or acts of abuse.” (Fam. Code, § 6300, subd. (a).)
The moving party need not show a likelihood of future abuse. (Nevarez v. Tonna (2014)
227 Cal.App.4th 774, 782-783.) However, the court must “consider whether failure to
make any of these orders may jeopardize the safety of the petitioner . . . .” (Fam. Code,
§ 6340, subd (a)(1).)
“Abuse” is defined as:
“(1) To intentionally or recklessly cause or attempt to cause bodily injury.
“(2) Sexual assault.
“(3) To place a person in reasonable apprehension of imminent serious bodily
injury to that person or to another.
“(4) To engage in any behavior that has been or could be enjoined pursuant to
Section 6320.” (Fam. Code, § 6203, subd. (a).)
5 Behavior that could be enjoined under Family Code section 6320 includes
“molesting, attacking, striking, stalking, threatening, sexually assaulting, battering,
credibly impersonating . . . , falsely personating . . . , harassing, telephoning, . . . ,
destroying personal property, contacting, . . . coming within a specified distance of, or
disturbing the peace of the other party, and, in the discretion of the court, on a showing
of good cause, of other named family or household members.” (Fam. Code, § 6320,
subd. (a), italics added.)
In general, we review the grant or denial of a domestic violence protective order
under the abuse of discretion standard. (Gonzalez v. Munoz (2007) 156 Cal.App.4th 413,
420.) “A ruling that constitutes an abuse of discretion has been described as one that is
‘so irrational or arbitrary that no reasonable person could agree with it.’ [Citation.]”
(Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747,
773.) However, “‘[t]he question of whether a trial court applied the correct legal standard
to an issue in exercising its discretion is a question of law [citation] requiring de novo
review [citation].’ [Citation.]” (Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816,
821.)
B. Protective Order to Protect the Child.
The trial court denied a restraining order protecting the child because “It’s the
jurisdiction of the juvenile court at this point to decide if they want to make a restraining
order.”
6 A juvenile court has exclusive jurisdiction to issue an ex parte restraining order to
protect a dependent child from any person. (Welf. & Inst. Code, § 213.5, subd. (a).) The
juvenile court also has jurisdiction to issue a permanent restraining order. (Welf. & Inst.
Code, § 213.5, subd. (d)(1).)
In general, the juvenile court’s jurisdiction to issue a permanent restraining order
is not exclusive. However, the juvenile court does have exclusive jurisdiction in one
respect — it has exclusive jurisdiction “regarding the custody of the child . . . .” (Welf.
& Inst. Code, § 304.) The father argues that the juvenile court therefore had exclusive
jurisdiction over the mother’s request for a restraining order regarding the child.
Ordinarily, we would agree that a restraining order that prevents a parent from contacting
his or her child affects custody, almost by definition. In this case, however, the juvenile
court had already awarded the mother exclusive custody of the child and had ordered that
the father have no contact with her. Accordingly, it is at least arguable that the
restraining order the mother was seeking would have no actual effect on custody.
We turn, then, to a different jurisdictional principle. “The rule of exclusive
concurrent jurisdiction provides that when two or more courts have subject matter
jurisdiction over a dispute, the court that first asserts jurisdiction assumes it to the
exclusion of the others. [Citation.]” (Lofton v. Wells Fargo Home Mortgage (2014) 230
Cal.App.4th 1050, 1062.) Here, the juvenile court was the first to assert subject matter
jurisdiction. No matter how the scope of that jurisdiction is defined — broadly, as
jurisdiction over the relationship of the father and the child, or narrowly, as jurisdiction
7 over the impact of his sexual abuse on the parent-child relationship — it was duplicative
of the jurisdiction that the mother was asking the trial court to exercise in this case. It
follows that the trial court correctly deferred to the juvenile court.
As authority to the contrary, the mother cites this court’s opinion in In re B.S.
(2009) 172 Cal.App.4th 183. There, we held that the criminal court’s issuance of a
restraining order against the father did not preclude the juvenile court from issuing its
own restraining order against the father. (Id. at pp. 188-193.)
We acknowledged the rule of exclusive concurrent jurisdiction, but we also
recognized its limitations: “‘[T]he rule of exclusive concurrent jurisdiction does not
require absolute identity of parties, causes of action or remedies sought in the initial and
subsequent actions [Citations.] If the court exercising original jurisdiction has the power
to bring before it all the necessary parties, the fact that the parties in the second action are
not identical does not preclude application of the rule. Moreover, the remedies sought in
the separate actions need not be precisely the same so long as the court exercising
original jurisdiction has the power to litigate all the issues and grant all the relief to which
any of the parties might be entitled under the pleadings. [Citations.]’ [Citation.]” (In re
B.S., supra, 172 Cal.App.4th at p. 190.)
Thus, we held that the rule did not apply in the case before us: “First, the parties
and the remedies in the two proceedings were not the same. The People were a party to
the criminal proceeding, but not the juvenile proceeding; the Department was a party to
the juvenile proceeding, but not the criminal proceeding. Neither court had the power to
8 bring all of the parties before it. Similarly, the main remedy in the criminal proceeding
was imposing criminal punishment, which the juvenile court had no power to order,
whereas the main remedy in the juvenile proceeding was changing custody, which the
criminal court had no power to order.” (In re B.S., supra, 172 Cal.App.4th at p. 191.)
There are no similar circumstances in this case. Here, the mother, the father, and
the child were all parties to the dependency proceeding, and both courts had the power to
grant the requested restraining order. Accordingly, the trial court properly refused to
issue a protective order as to the child.
The father has not argued that the juvenile court also had exclusive jurisdiction to
issue a protective order as to the mother. The rule of exclusive concurrent jurisdiction,
although mandatory, is merely jurisprudential; it does not go to the trial court’s
fundamental jurisdiction. (People ex rel. Garamendi v. American Autoplan, Inc. (1993)
20 Cal.App.4th 760, 770, 772.) Accordingly, we need not decide this question.
C. Protective Order to Protect the Mother.
The mother contends that she showed that the father had abused her, in the form of
disturbing her peace. “‘“[D]isturbing the peace of the other party”’ means ‘conduct that
destroys the mental or emotional calm of the other party.’ [Citation.]” (Gou v. Xiao
(2014) 228 Cal.App.4th 812, 817.)
There is no doubt that the father’s sexual abuse of the child shattered the mother’s
emotional calm. The trial court so found: “I have no doubt that [the mother’s]
allegations that her peace has been disturbed by the situation are very real and her
9 emotional pain is extremely painful.” The trial court reasoned, however, that the past
abuse was not directed against the mother. It was directed against the child; it ended up
disturbing the mother’s peace only because the child disclosed the abuse — surely not
something the father intended.
Family Code section 6300, subdivision (a) provides that a restraining order “may
be issued” if the moving party “shows, to the satisfaction of the court, reasonable proof of
a past act or acts of abuse.” It does not, in so many words, require that the abuse have
been directed at the moving party. (See In re B.S., supra, 172 Cal.App.4th at pp. 193-194
[juvenile court could issue restraining order protecting child against father based on
evidence that father had committed domestic violence against mother; reasoning by
analogy to the Act].) Even assuming the abuse must have been suffered by the moving
party, here, it was the mother’s own peace that was disturbed.
But the provision that a restraining order “may be issued” is permissive, not
mandatory. As already mentioned, the Act also requires the trial court to “consider
whether failure to make [a restraining order] may jeopardize the safety of the petitioner
. . . .” (Fam. Code, § 6340, subd. (a)(1).) The abuse here consisted of sexual abuse of the
child, which ended up disturbing the peace of the mother. However, there was no
reasonable possibility that the father would sexually abuse the child again. And because
his abuse was not directed at the mother, there was no reasonable possibility that he
would disturb her peace in any other way. Therefore, failure to issue a restraining order
did not jeopardize the mother’s safety.
10 We recognize that the trial court did not analyze the issue in quite this fashion —
step by step, with citations to the controlling statutes. Nevertheless, the reasoning that it
did express, on the record, leads ineluctably to this result.
We therefore conclude that the trial court did not abuse its discretion by refusing
to issue a restraining order in favor of the mother.
IV
DISPOSITION
The order appealed from is affirmed. The father is awarded costs on appeal
against the mother.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.
We concur:
SLOUGH J.
MENETREZ J.