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In re B.S.

March 17, 2009

IN RE B.S., JR., A PERSON COMING UNDER THE JUVENILE COURT LAW.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, PLAINTIFF AND RESPONDENT,
v.
B.S., SR., DEFENDANT AND APPELLANT.



APPEAL from the Superior Court of Riverside County. Gary Vincent, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. (Super.Ct.No. SWJ008205).

The opinion of the court was delivered by: Richli J.

reposted to correct footnote numbering

CERTIFIED FOR PARTIAL PUBLICATION*fn1

OPINION

B.S., Sr. (the father) appeals from the juvenile court's issuance of a restraining order under Welfare and Institutions Code section 213.5. The challenged order names his son, B.S., Jr. (B.S.) - the subject of this juvenile dependency proceeding - as a protected person, along with B.S.'s mother and maternal grandmother. The father contends that the juvenile court lacked jurisdiction to issue the order, because the criminal court had already issued a similar restraining order under Penal Code section 136.2. He further contends that there was insufficient evidence to support the issuance of the restraining order with respect to B.S. We find no error. Hence, we will affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The father and T.L. (the mother) are the parents of B.S. As of February 2008, when B.S. was seven months old, they were all living together. The father had been charged with spousal battery (Pen. Code, § 273.5, subd. (a)) against the mother and was out on bail. In addition, he was on probation for a 2003 conviction for assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).)

One night, a female friend of the mother who was visiting from out of state called 911. When officers arrived, she reported that the father and the mother had been in their bedroom when she heard the father arguing with the mother and then hitting her. She went into the bedroom, where she saw the father "pushing and swinging wildly" at the mother as they "stood over" B.S. She pulled the father away, then took B.S. out to the kitchen.

When the friend returned to the bedroom, the father pushed the mother onto a bed and held her down. Meanwhile, B.S. "crawled back into the bedroom." The friend pulled the father away again, then took B.S. out to the kitchen again and placed him in a jumper.

The mother followed, pursued by the father. The father then grabbed the mother and "threw her down on top of" B.S. In doing so, he fell on top of both the mother and B.S. When the friend pulled the father away yet again, he hit her in the eye. The friend called 911. The father threatened to come back and shoot both her and the mother, then fled.

The mother confirmed that the father had pushed her, causing her to land on top of B.S. B.S. had no apparent injuries. There was a hole in the bedroom wall; the mother explained that the father had caused it by throwing a telephone during an argument. Similarly, the bathroom door was broken and off its hinges; the mother admitted that she and the father had broken it while "fooling around."

The maternal grandmother reported that the father had been physically abusing the mother for a long time. The mother "minimize[d] the domestic violence between her and the father" and refused to seek shelter elsewhere. As a result, B.S. was detained and the Riverside County Department of Public Social Services (the Department) filed a dependency petition concerning him.

After about two weeks, B.S. was placed with the maternal grandmother. Shortly before the jurisdictional hearing, the father was released from custody.

On March 17, 2008, at the jurisdictional hearing, the juvenile court found that it had jurisdiction based on failure to protect. (Welf. & Inst. Code, § 300, subd. (b).) It authorized the mother to reside with the maternal grandmother and B.S., provided that she not be left alone with B.S.

Also on March 17, 2008, the criminal court*fn2 issued a restraining order against the father (criminal order).*fn3 It was issued on Judicial Council form CR-160 (Criminal Protective Order-Domestic Violence). It named as protected persons the mother and B.S. The criminal order provided, among other things, that the father "must not harass, strike, threaten, assault (sexually or otherwise), follow, stalk, molest, destroy or damage personal or real property, disturb the peace, keep under surveillance, or block movements of" the protected persons. The criminal order also provided, "[T]his order takes precedence over any conflicting protective order... if the protected person is a victim of domestic violence...."*fn4

On March 20, 2008, at the request of the Department, the juvenile court issued an ex parte temporary restraining order against the father, as well as an order to show cause (OSC) why a restraining order after hearing should not issue.

In April 2008, at the hearing on the OSC, the father's counsel objected to the proposed restraining order. She noted that the criminal court had already issued a restraining order, then added: "Father's position at ...


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