In re G.M.
Filed 1/28/13 In re G.M. CA1/1
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
ONE
In re G.M.,
a Person Coming Under the Juvenile Court Law.
CONTRA COSTA COUNTY
CHILDREN AND FAMILY SERVICES
BUREAU,
Plaintiff and Respondent,
v.
M.M.,
Defendant and Appellant.
A135071
(Contra
Costa County
Super. Ct.
No. J11-01481)
Defendant
M.M. appeals from the juvenile court’s issuance of a permanent
contacting her daughter G.M. and her daughter’s maternal grandparents, except
for supervised visitation with the child.
She claims there was insufficient evidence to support the restraining
order as to G.M. We affirm.
FACTUAL
BACKGROUND AND PROCEDURAL HISTORY
G.M.
was born in October 2011. The child was
removed from her parents by plaintiff the
County Children and Family Services Bureau (the Bureau) the day after her
birth, and was placed in foster care after defendant tested positive for
morphine and amphetamines in the hospital.
She reportedly admitted to having taken six Vicodin pills on the day she
gave birth.
On
December 16, 2011, the
Bureau filed a written update on the case.
The update indicates that defendant had been arrested for elder
abuse. Reportedly, the incident
concerned alleged abuse of G.M.’s father’s grandmother, with whom G.M.’s
parents were residing. The grandmother
had telephoned the sheriff’s department several times due to fighting in the
home and had asked that defendant be removed.
She had reportedly been advised several times to obtain a restraining
order. In an addendum report to the
jurisdictional report, the Bureau reported the grandmother had told a Bureau
social worker that she was going to court to obtain a restraining order against
defendant. However, she had not followed
through and G.M.’s parents continued to reside with her.
At
the contested jurisdictional hearing
held on February 8, 2012,
social service worker Jennifer Weiss testified G.M.’s test results were
positive for amphetamine and methamphetamine at birth. G.M.’s parents both told Weiss that they did
not want services from the Bureau and would not discuss the case with her. They did not want to receive any phone calls
concerning anything other than visitation with the child. The juvenile court found the child was as
described pursuant to Welfare and Institutions Code section 300.
that defendant had placed the child at substantial risk for harm in that the
child had tested positive for drugs at birth, and had received limited prenatal
care.
Also
at the hearing, minor’s counsel indicated that the child had been moved to her
maternal grandmother’s home from her foster care placement. On December
12, 2011, defendant had reportedly threatened to kill the maternal
grandmother and burn down the house with the maternal grandparents and
defendant’s other two children inside.
for a restraining order on their behalf as well as on G.M.’s behalf. An application, which includes the threat
allegation, was presented to the court.
Defendant’s counsel stated that this was the first time defendant had
heard of the application for the restraining order, and that she was both
shocked and distressed. The court issued
a temporary restraining order. The order
restrained defendant from having any contact with G.M., other than contact
provided through the Bureau.
The
Bureau filed its disposition report on February
24, 2012. In the report, the
social worker states defendant was arrested on November 17, 2011, for elder abuse following an
altercation with G.M.’s father’s grandmother, and had spent several days in
jail. In late January, the father’s
grandmother had reportedly stated that defendant “scares her to death.†She said defendant had made numerous threats,
told her to get out of town, and had destroyed items of personal property. By this time there was a permanent
restraining order in place keeping defendant away from the father’s
grandmother.
At
the disposition hearing, defendant’s appearance was waived. Her counsel reported that they had met the
prior evening for about two and a half hours.
They went over the dispositional report, the recommendations, and the
case plan in detail. The only aspect of
the case plan that defendant disagreed with was the requirement of a mental
health assessment. The juvenile court
adopted the remaining recommendations contained in the report, as amended. G.M.’s attorney then moved to have the
restraining order made permanent.
Defendant’s counsel objected, although she noted she did not have any
evidence to go forward with the objection because defendant was not present. The trial court granted a three-year permanent
restraining order. This appeal followed.
DISCUSSION
Defendant’s
sole contention on appeal is that there was insufficient admissible evidence to
support the juvenile court’s issuance of the order restraining her from having
contact with G.M. The contention lacks
merit.
Section
213.5, subdivision (a), provides that once a juvenile dependency petition has
been filed, the juvenile court may issue a temporary restraining order
protecting the dependent child and any caregivers of the child. The juvenile court may issue orders “(1)
enjoining any person from molesting, attacking, striking, stalking,
battering, harassing, telephoning, . . . destroying the personal
property, contacting, either directly or indirectly, by mail or otherwise,
coming within a specified distance of, or disturbing the peace
household; and (2) excluding any
person from the dwelling of the person who has care, custody, and control of
the child.†(Italics added.) Where a juvenile court issues a permanent
restraining order after notice and a hearing, “Proof may be by the application
and any attachments, additional declarations or documentary evidence, the
contents of the juvenile court file, testimony, or any combination of
these.†(Cal. Rules of Court, rule
5.630(f)(1).) An order issuing a
restraining order is reviewed under the substantial evidence test, pursuant to
which the evidence is viewed in the light most favorable to the order and all
legitimate and reasonable inferences are indulged to uphold the order. (In re
Cassandra B. (2004) 125 Cal.App.4th 199, 210–211.)
Defendant
asserts the record did not contain any evidence from which it could be inferred
that she had either threatened G.M. or attempted to cause her harm. In particular, she characterizes G.M.’s
maternal grandmother’s reported allegation that she had threatened to burn down
the house with the family inside, as “unsubstantiated hearsay.†She also claims the juvenile court failed to
make specific findings that she had threatened to harm G.M. and observes
nothing in the record indicates that the child was fearful of her.
As
to whether the evidence of defendant’s threat was based on “unsubstantiated
hearsay,†we note she did not make any hearsay objection during the
proceedings. (See Evid. Code, § 353,
subd. (a) [failure to object waives the issue].) “It is well settled that hearsay or other
incompetent evidence . . . if received without proper objection or
motion to strike is to be regarded as competent evidence in support of an order
or judgment.†(Flood v. Simpson (1975) 45 Cal.App.3d 644, 649.) Therefore, her evidentiary objection was not
preserved for appeal. Accordingly, her
evidentiary arguments challenge only the credibility and weight of the
evidence, both of which were matters for the juvenile court. (In re
Anthony G. (2011) 194 Cal.App.4th 1060, 1065.)
We
note defendant was present at the hearing when the temporary restraining order
was issued, yet did not contest the factual basis underlying that order. Specifically, she did not deny that she had
threatened to burn her parent’s house down with the family inside. These same facts were used to support the
issuance of the permanent restraining order.
Further, the social worker’s reports stated that a restraining order was
already in place as to G.M.’s father’s grandmother. The allegations leading up to the issuance of
that order were similar to the allegations raised by G.M.’s maternal grandmother. Manifestly, the threat to kill the
grandmother and burn down the family home with the family inside constituted a
threat to G.M.’s well-being and to the well-being of the child’s two older
brothers. The threat could be deemed
credible in light of the circumstances surrounding the issuance of the
restraining order as to G.M.’s father’s grandmother.
With
respect to the lack of evidence as to G.M.’s fear of defendant, we note the
child was only four months old when the restraining order was issued. Thus, the child would not have been able to
articulate whether she felt any fear or not.
In sum, we find substantial evidence supports the issuance of the
permanent restraining order.
DISPOSITION
The
order of the juvenile court is affirmed.
Dondero,
J.
We
concur:
Marchiano,
P. J.
Margulies,
J.
name="_ftn1" title="">[1]
All further statutory references are to the
Welfare and Institutions Code except as otherwise indicated.
name="_ftn2" title="">[2] G.M.’s maternal grandparents had been awarded
guardianship of defendant’s two older sons through the probate court.
