A Protective Order Under the Domestic Violence Prevention Act is Warranted if a Failure to Make the Order Would Jeopardize the Safety of the Party Seeking the Protective Order

Na. L. (“Mother”) and K.E. (“Father”) had a child, N.L. In 2013, the Los Angeles County Department of Children and Family Services (“Department”) filed a petition alleging N.L. was at risk due to Mother’s drug use and her repeated false allegations that Father sexually abused N.L. In June 2014, the juvenile court declared N.L. a dependent of the juvenile court, removed N.L. from Mother’s custody, ordered N.L.’s home-of-parent to be Father, ordered Mother to have monitored visits that were not monitored by Father, and ordered N.L.’s parents to be educational rights holders. In August 2014, Father’s family law attorney filed a request for a restraining order seeking that Mother stay one hundred yards away from him and N.L., their residence, his workplace, his vehicle, and N.L.’s school. In support of his request for a restraining order, Father declared that Mother attempted to remove N.L. from school, violating the court order. In addition, Father asserted that Mother threatened and physically abused Father. The juvenile court ultimately granted Father’s family law attorney’s request, issued a temporary restraining order, and set a hearing. At the hearing, the juvenile court issued the restraining order and included N.L. as a protected person. The juvenile court also granted Mother monitored visits with N.L. Thereafter, Mother’s family law attorney filed a timely notice of appeal.

Several courts have applied the substantial evidence standard in reviewing the issuance of a restraining order under California Welfare and Institutions Code section 213.5. Section 213.5(a) permits a juvenile court to issue an order “enjoining any person from…attacking, striking,…threatening,…harassing,…coming within a specified distance of, or disturbing the peace of the child [or any parent].” Issuance of a restraining order under section 213.5 does not require “evidence that the restrained person has previously molested, attacked, struck, sexually assaulted, stalked, or battered the child.” Nor does it require evidence of a “reasonable apprehension of future abuse.” Section 213.5 is analogous to Family Code section 6340, which permits the issuance of a protective order under the Domestic Violence Prevention Act if failure to make the order may jeopardize the safety of the petitioner.

On appeal, Mother’s family law attorney contended that there was insufficient evidence to support the inclusion of N.L. as a protected person in the Domestic Violence Prevention Act restraining order. The Court of Appeal ultimately found that there was no evidence that N.L.’s safety might be in jeopardy absent her inclusion in the restraining order. Specifically, there was no evidence that Mother had engaged in any violent or dangerous conduct toward, or made any threats to, N.L. There was also no evidence that Mother’s violent conduct or threats occurred in N.L.’s presence. In fact, about one month after Father filed his request for a restraining order under the Domestic Violence Prevention Act, and about one month before the juvenile court issued the permanent restraining order that included N.L., the Department reported that Mother’s interaction with N.L. during their visits was favorable, as N.L. appeared to enjoy spending time with Mother and even claimed that she liked visiting with Mother. Moreover, there was no evidence that Mother failed to obey the visitation order or abused her visitation rights. The Court of Appeal also reasoned that there was no evidence that Mother violated the court order when she attempted to remove N.L. from school, as she had a right to communicate with N.L.’s school.

Based on the foregoing, the Court of Appeal held that the juvenile court erred by including N.L. as a protected person in the Domestic Violence Prevention Act restraining order. The Court of Appeal remanded the matter in order for the juvenile court to modify the restraining order to exclude N.L. as a protected person.

In re N.L. (2015) 236 Cal. App. 4th 1460