Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. DP018505, Maria D. Hernandez, Judge.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Debbie Torrez, Deputy County Counsel, for Plaintiff and Respondent.
Brent Dail Riggs, under appointment by the Court of Appeal, for the Minor.
OPINION
O’LEARY, ACTING P. J.
L.C. (Father) appeals from a restraining order issued under Welfare and Institutions Code section 213.5 in the course of a dependency proceeding. The order prohibits Father from contacting his son, N.C., or his son’s mother, stepfather, or half brother. Father contends the juvenile court lacked authority to issue the restraining order because his son had turned 18 years of age, and after issuing the restraining order, the court terminated the dependency proceedings. He also contends there is insufficient evidence to support the order. We find no error and affirm the order.
“[A] restraining order issued in a juvenile dependency proceeding is directly appealable to the same extent as a restraining order granted in a civil action. (Code Civ. Proc., § 904.1, subd. (a)(6).)” (In re Cassandra B. (2004) 125 Cal.App.4th 199, 208 (Cassandra B.).)
FACTS
N.C. lived most of his life with his mother, P.S. (Mother), and her husband M.S. (Stepfather), who are the parents of N.C. ’s half brother, A.S. In 2009, the Orange County Social Services Agency (SSA) filed a petition to declare then almost 17 year old N.C. and 11 year old A.S. dependent children. Mother and Stepfather both were alleged to have substance abuse problems. Apparently there were marital problems as well-Mother and Stepfather were separated at the time. Mother had a live in boyfriend, and there was domestic violence in the home. Father was alleged to have failed to protect N.C. Father had not seen N.C. for many years and throughout these proceedings N.C. steadfastly maintained he wanted nothing whatsoever to do with Father. At the detention hearing on May 13, 2009, N.C. and his brother were detained and placed out of the home.
In a June 11, 2009, report for the jurisdictional and dispositional hearing, the social worker explained Father’s whereabouts were unknown. N.C. told the social worker about Mother’s recurrent substance abuse issues, and the extent to which N.C. had to manage her affairs (“I am ‘more of an adult than my mother is’”), and said Father had “stepped in” briefly but had his own mental health and substance abuse issues and N.C. had not seen Father for about three years. N.C. did not want to be placed with Father and hoped Father “‘would stay away from me.’” Mother told the social worker she did not know where Father was, had last seen him four years earlier, but Father left because N.C. “wouldn’t bond with him....”
On June 19, 2009, the social worker reported Father had contacted SSA. He wanted to see N.C. and had called Mother’s home, but N.C. did not want to speak to him and said he wanted nothing to do with Father. Father told the social worker Mother was totally “unstable, ” and the last time he saw N.C. at around age 14, Father “gave [ N.C. ] the choice of going with [me] then, and [ N.C. ] chose to stay [with his mother].”
At the July 15, 2009, jurisdictional hearing, Father was represented by counsel. The parents pled no contest to the petition’s allegations. The court declared N.C. and A.S. dependent children and approved a case plan.
On August 3, 2009, SSA reported Mother and Stepfather had reunited. The boys were still out of the home. Father wanted visits with N.C., but N.C. refused all contact with Father (“unequivocally ‘no never’ to visitation and contact” with him). Although Father had been offered services, he did not participate since N.C. wanted nothing to do with him.
By December 2009, N.C. and A.S. had returned to Mother and Stepfather’s home. Mother and Stepfather had made “significant progress” in their service plan. In February 2010, SSA reported all was well in Mother and Stepfather’s home, and the boys were very happy and “settled back into their familiar routines.” N.C., now a senior in high school, was applying to colleges. Mother expressed concern about N.C. ’s lack of a relationship with Father and was trying to encourage him to contact Father, but N.C. was not interested at that time. The six-month review was continued several times to July 26, 2010.
In a July 26, 2010, report, SSA recommended the dependency be terminated. N.C. would turn 18 years old in less than one month. The social worker noted some troubling events that had transpired with Father. At a prior hearing, Father accused Mother and Stepfather of raiding a bank account he claimed to have set up for N.C. Later that day, Father called the police and asked them for a welfare check of Mother and Stepfather’s home accusing Mother of being under the influence. The police investigated and found no problems. N.C. told the social worker the accusations were unfounded, Father “does these kind of things to get to his mom[, ]” because she was trying to get back child support from Father so she could have money to help with N.C. ’s college expenses. N.C. said that years ago Father had set up a bank account for him, that Father and Mother were signers on, but in 2007, Father deleted himself from the account, and the account was now solely in N.C. ’s and Mother’s names. N.C. still wanted nothing to do with Father.
On July 26, 2010, the day of the continued six month review hearing, Mother applied for a restraining order to keep Father away from herself, Stepfather, N.C., and A.S. She declared Father had been harassing the family and making false accusations against her and Stepfather. She stated Father had a history of mental illness and had once been hospitalized after an attempted suicide. On July 15, Father sent a letter to N.C., which Mother interpreted as threatening the safety of N.C. and the family. The letter, which we recite here verbatim, read: “Dear [ N.C. ], I’ve been waiting for you to contact me & I guess you not going to, so I going to give you on last time to do so come to the last court hearing, or I will sell 1/2 of your stocks and donate it to charity. I have been trough enough of you mother selfish action, she & her GAY MOMMA’S boy husband has burned though my life saving 5 time. I Have nothing left right now, you need to try & visit you grandpa & grandma if you don’t I will give all of your stocks away. If there is any attempt to access your stocks before these to ([Mother and Stepfather]) are deceased AND six feet under this will forfeit all of your stocks, & will be donated to charity of my choice, if you were to understand how much of everything I have lost because of these two selfish spoiled people has cost you personally!!! You can call [me] anytime.”
At the hearing, Father’s attorney argued there was no need for a restraining order because Father had no intention to ever contact “any party in this matter again.” The court issued a temporary restraining order (TRO), continued the six month review hearing, and set an order to show cause on a restraining order.
Mother later told the social worker that when Father was served with the TRO in the courtroom, he began yelling and Father’s brother said “[Stepfather] is dead. When the bailiff asked what he meant by that, he said he meant that [Stepfather] was a drug user and could overdose.” The social worker subsequently interviewed N.C., who said he felt very scared and threatened by Father’s letter, “he doesn’t want anyone with that mindset around him, ” and “wishes to have a long term restraining order.”
The six month review hearing and order to show cause on the application for a restraining order were held on August 23, 2010, a few days after N.C. ’s 18th birthday. Father filed no written opposition and did not personally appear at the hearing, but was represented by counsel. Mother testified Father had psychological problems and attempted suicide once, and “his demands, his threats” were getting worse as N.C. got older. Mother felt threatened and was afraid of Father. Father was constantly threatening to take both of her children away, wanted control over N.C., and threatened, “‘If it wasn’t for you I could see my son[.]’” At the prior court hearing, Father had several outbursts calling Stepfather a drug addict, and “he was going to be dead.” The July 15th letter had arrived for N.C. via Federal Express. N.C. opened it and showed it to Mother-she felt it was threatening. She was scared and N.C. was scared, and Mother stated, “my whole family was scared.” Mother said that when the TRO was served on Father at the prior hearing, Father and his brother “were yelling that we were drug addicts and that we were going to be dead, only because we would overdose or kill ourselves from alcohol or whatever.” Mother and her family were “pretty scared” by the outburst, particularly because Father knows where they lived. She was very concerned because the SSA social worker had divulged in recent reports where N.C. was going to attend college and now Father knew where to find N.C. at school. On cross examination, Mother conceded Father had never threatened to physically harm N.C., but she felt his letter was a threat against her and Stepfather.
Stepfather testified he believed Father wanted to kill him because “I have raised his son pretty much all his life....” He considered as threats the July 15th letter, and Father’s and Father’s brother’s courtroom outburst “stating... I was a drug addict, took all their money” and “you’re going to die.” Stepfather was scared of Father.
The juvenile court found by clear and convincing evidence a reasonable person would be put in fear for their own safety or the safety of their family by Father’s conduct and a restraining order should issue. Father’s “explosive outbursts” in the courtroom in the presence of a deputy indicated he was unable to control his behavior, which the court found disturbing. The reference in Father’s July 15th letter to individuals being “deceased and six feet under” when coupled with Father’s history of instability and mental illness, led the court to find Father posed a “credible threat” to the family. The court issued a three year restraining order prohibiting Father from contacting or coming within 100 yards of Mother, Stepfather, N.C., or A.S. The court then held the six month review hearing and terminated jurisdiction.
DISCUSSION
1. Statutory Authority to Issue Restraining Order
Father contends Welfare and Institutions Code section 213.5 does not give a juvenile court authority to issue a restraining order where the dependent child has become an adult and jurisdiction is going to be terminated, as was done here. He complains that by issuing the restraining order, and then terminating jurisdiction, the juvenile court left him with no means to seek termination or modification of the restraining order in the future should circumstances warrant.
Father did not raise this argument below and accordingly it is waived. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338 1339 [“Many dependency cases have held that a parent’s failure to object or raise certain issues in the juvenile court prevents the parent from presenting the issue to the appellate court”]; In re Christopher B. (1996) 43 Cal.App.4th 551, 558 [“In dependency litigation, nonjurisdictional issues must be the subject of objection or appropriate motions in the juvenile court; otherwise those arguments have been waived and may not be raised for the first time on appeal.”].) Father filed no written opposition to the application and did not personally appear at the hearing at which the restraining order was issued. His counsel argued the restraining order was not warranted by Father’s conduct, but he did not argue such an order was not statutorily authorized if jurisdiction was going to be terminated.
“‘In order to preserve an issue for appeal, a party ordinarily must raise the objection in the trial court. [Citation.] “The rule that contentions not raised in the trial court will not be considered on appeal is founded on considerations of fairness to the court and opposing party, and on the practical need for an orderly and efficient administration of the law.” [Citations.] Otherwise, opposing parties and trial courts would be deprived of opportunities to correct alleged errors, and parties and appellate courts would be required to deplete costly resources “to address purported errors which could have been rectified in the trial court had an objection been made.” [Citation.] In addition, it is inappropriate to allow any party to “trifle with the courts by standing silently by, thus permitting the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable.” [Citation.]’” (Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 799 800.) The issue Father raises is not jurisdictional. By not raising the argument below, he deprived the juvenile court of the opportunity to address and/or correct any claimed error-for example by shortening the duration of the restraining order or retaining jurisdiction. (Welf. & Inst. Code, § 303 [court may retain jurisdiction over dependent child until age 21].)
2. Substantial Evidence Supporting Order
Father contends the court’s restraining order was not supported by substantial evidence. We disagree.
We review the juvenile court’s decision to issue a permanent restraining order for abuse of discretion. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1512.) A court abuses its discretion when its decision exceeds the bounds of reason. When multiple inferences reasonably can be deduced from the evidence, the reviewing court may not substitute its decision for that made by the trial court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318 319.)
Welfare and Institutions Code section 213.5 permits the juvenile court to issue an order “enjoining any person from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning... ” not just the dependent child, but other children in the household, and the dependent child’s caretakers. (Welf. & Inst. Code, § 213.5, subd. (a).) Father argues, and N.C. essentially concedes, that because Welfare and Institutions Code section 213.5, does not delineate a standard of proof, we should look to standards applicable to issuance of restraining orders under the Domestic Violence Protection Act (DVPA). (Fam. Code, § 6200 et. seq.; see In re B.S. (2009) 172 Cal.App.4th 183, 193 (B.S.) [analogizing to restraining order under DVPA].)
Under the DVPA, a restraining order may issue to prevent a recurrence of domestic violence upon a showing by “reasonable proof of a past act or acts of abuse.” (Fam. Code, § 6300.) “Abuse” includes, “any behavior that has been or could be enjoined pursuant to [Family Code section] 6320” (Fam. Code, § 6203, subd. (d)), including “molesting, ... stalking, threatening, ... [or] harassing....” (Fam. Code, § 6320, subd. (a).) “‘[M]olest’ does not refer exclusively to sexual misconduct[, ]” but rather is given its more general meaning of disturbing or annoying another person. (Cassandra B., supra, 125 Cal.App.4th at p. 212.)
Father relies on S.M. v. E.P. (2010) 184 Cal.App.4th 1249 (S.M.), in support of his contention the evidence is insufficient. His reliance is misplaced. In S.M., father had obtained a standard restraining order in a paternity and custody action prohibiting mother from leaving the state with the child. On the day in question, after mother had confirmed her intention to leave the state with the baby, mother and father got into a heated argument. Mother testified father was “badgering” her about her not being allowed to take the baby and she said father threatened to kill her. Father testified he did not make any any such threat. The court issued a six month restraining order against father under the DVPA naming only mother as a protected person. In issuing the restraining order, the court observed it had seen father “agitated” in the court room, but only in that he was “highly concerned about losing contact with [his] child” and not in the “negative connotation” of “acting in a violent or rude manner.” (Id. at p. 1262.) The court specifically declined to find father had made a death threat. Nonetheless, the court concluded father and mother had argued, and father was badgering mother about not leaving the state with the child, which caused mother to become afraid. (Id. at p. 1263.) The court also stated it did not believe father was in any way inappropriate for custody or visitation with the child (father already had substantial custody of his three children from a prior marriage). Accordingly, the court ruled the restraining order was not the “kind” that would invoke the Family Code section 3044 presumption against awarding custody to a parent who had been found to have perpetuated domestic violence against the other parent. (Id. at p. 1262.)
In reversing the restraining order, the appellate court concluded there was insufficient evidence of abuse, and the trial court misunderstood its ability to limit the effect of the restraining order. The restraining order could not issue absent a finding of abuse, but the finding of abuse would in turn require application of the presumption against awarding custody. “By stating that, in its view, the presumption of [Family Code] section 3044 should not be imposed against [father], the trial court suggested that the court was not making a finding of domestic violence sufficient to trigger the presumption. If the court did not intend to make a finding that [father] had committed an act of domestic violence sufficient to trigger the presumption of [Family Code] section 3044, then the court could not have found that [father] had engaged in domestic violence sufficient to support issuance of a restraining order under [Family Code] section 6300.” (S.M., supra, 184 Cal.App.4th at pp. 1267 1268.)
Here, unlike in S.M., substantial evidence supports the juvenile court finding of abuse and there were no contradictory findings made by the court. The juvenile court found clear and convincing evidence a reasonable person would be put in fear for their own safety or the safety of their family by Father’s conduct and failure to issue a restraining order might jeopardize the physical and emotional safety of N.C. and his family. (See B.S., supra, 172 Cal.App.4th at pp. 193 194 [restraining order may issue under Welfare and Institutions Code section 213.5 if court finds failure to issue order might jeopardize safety].)
The juvenile court could properly consider SSA reports, Mother’s application, and the testimony of Mother and Stepfather at the hearing. (Cal. Rules of Court, rule 5.630(f).) Father did not testify and presented no evidence. The record contains evidence supporting the conclusion Father was becoming increasingly angry about the lack of a relationship with his son and his anger was directed not just at Mother and Stepfather, but at N.C. as well. Mother testified Father had a history of mental illness and had once attempted suicide. She testified Father was threatening and harassing her, warned “‘[i]f it wasn’t for you I could see my son[, ]’” threatened he would take N.C. and her other son away, and his demands and threats were getting worse as N.C. got older. Mother felt threatened and was afraid of Father. Stepfather testified he felt Father wanted to kill him because Stepfather had largely raised N.C. SSA reported Father had been leveling accusations that Mother and Stepfather were raiding a bank account Father claimed to have set up for N.C., although N.C. reported the account was his and Mother’s alone. Father called police for a welfare check of the home accusing Mother of being under the influence, but police found no problems and N.C. said Father was retaliating because Mother had renewed efforts to obtain child support arrearages from Father. Father then sent a very disturbing letter to N.C. that Mother testified put the entire family in fear for their safety. The letter berated N.C. for not contacting Father, accused Mother and “her GAY MOMMA’S boy husband” of wiping him out financially, and warned against any efforts at “access[ing] your stocks before these to ([Mother and Stepfather]) are deceased AND six feet under....” The letter could reasonably be construed as suggesting to the family that Father had reached his limit and felt he had nothing left to lose. After the court issued the TRO, and it was served on Father in the courtroom, Father began yelling and Father’s brother said “[Stepfather] is dead, ” the court found Father’s “explosive outbursts” in the courtroom in the presence of a deputy indicated he was unable to control his behavior, which the court found additionally disturbing. Under the foregoing circumstances, the juvenile court reasonably could find a restraining order was necessary to protect the family from Father’s poor anger management, and his aggressive and threatening behavior. Even assuming opposite inferences might be equally reasonable, “we are not authorized to second guess the juvenile court on this point.” (B.S., supra, 172 Cal.App.4th at p. 194.)
DISPOSITION
The order is affirmed.
WE CONCUR: MOORE, J., FYBEL, J.