In re Michael C.
Filed 12/6/13 In re Michael C. CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
>
In re MICHAEL C. et al., Persons Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. SID C., Defendant and Appellant. | D064180 (Super. Ct. No. SJ12433C-D) |
APPEAL from
an order of the Superior Court
of
County, Gary M. Bubis, Judge.
Affirmed as modified.
Neil R.
Trop, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas E.
Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and
Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
Sid C.
appeals from a restraining order issued under Welfare and Institutions Code
section 213.5
title="">[1] in the juvenile dependency
case of his minor sons, Michael C. and Brandon C. Sid contends that the court erroneously
admitted hearsay statements contained in a social services report and that
substantial evidence does not support the court's restraining order. Sid further contends that the
because the court did not specify the distance that Sid must maintain between
himself and a protected person. We
conclude that even if Sid is correct that the alleged hearsay statements should
have been excluded, there is still substantial evidence to support the court's
restraining order. However, we modify
the order to include the omitted distance.
As so modified, we affirm the order.
FACTUAL AND
PROCEDURAL BACKGROUND
On February
16, 2012, the San Diego County Health and
Human Services Agency (the Agency) petitioned the juvenile court under section
300, subdivision (b), on behalf of 14-year-old Michael and 12-year-old Brandon. Brothers Michael and Brandon lived with their
father, Sid. The family came to the
Agency's attention following Sid's arrest on drug and weapons charges. The Agency alleged that law enforcement officers
had found a saleable amount of drugs and a blowtorch in Sid's unlocked bedroom,
placing Michael and Brandon at a substantial risk of serious harm.
Both
Michael and Brandon tested presumptively positive for drugs, including
methamphetamine, which is consistent with a large amount of drug residue in
their home. Michael reported having
witnessed physical confrontations between
Sid and unknown individuals, including seeing Sid brandish a firearm when Sid's
safety was threatened. At the time of
his arrest, Sid had a loaded revolver in his vehicle. However, Michael and Brandon otherwise appeared
clean, healthy, and well-groomed. In
interviews with the Agency, both Michael and Brandon denied any abuse or
neglect.
Sid and the
boys' mother, Brenda C., were divorced in 2001.
At that time, they agreed that Sid would be the primary caregiver for
Michael and Brandon. Brenda later had
two more children from subsequent relationships. Both of those children were involved in
separate dependency proceedings. At the
time of the petitions, Brenda had not seen Michael or Brandon for several
months.
At the pretrial
status conference, both Sid and Brenda submitted on the Agency's allegations. The court sustained the petitions, declared
the boys dependents of the court, removed them from Sid's custody, and ordered
reunification services for both Sid and Brenda. Michael and Brandon were placed in the foster
home of Gina B.
Sid participated
in supervised visitation with the boys, but he failed to make substantive
progress in reunification services. Sid
admitted to the Agency that he was a heroin addict. He tested positive for various drugs,
including opiates and methamphetamines, at least twice in the months following
the pretrial status conference. Sid was
also arrested again on felony drug and weapons charges and incarcerated for
several months while the dependency proceedings were pending. The Agency concluded that Sid "has a
serious addiction and is in need of intense treatment and is not capable of
parenting at this time."
Approximately
three weeks before the court's 12-month review hearing, Sid was released from
jail. Prior to his release, Brenda
expressed concern that Sid would be looking for her, that he might be angry,
and that he could be dangerous. On the
day of Sid's release, Brenda left a message with the Agency stating, "Sid
is out today. I know he is looking for
the boys. Someone let me know. I am afraid." Gina, the boys' foster mother, reported that
Brenda told her that Sid had been to Brenda's home that day, "hunting for
her," and had banged on Brenda's door. Brenda confirmed to the Agency that Sid had
come to see her and that she was "scared." Brenda did not see Sid, but her sister
did. Brenda's sister reported that Sid
looked "anxious or nervous" and "not right."
Sid went to
see both Michael and Brandon as well. He
met each boy separately on their way home from school. Brandon told the Agency that Sid approached
him and asked him to get into Sid's vehicle.
Brandon refused, but Sid told Brandon that he would come again. Brandon said that he thought Sid was "high"
at the time of their encounter. In the
interview, Brandon appeared very scared. Brandon was afraid that Sid would hurt Brenda
or his foster mother. Brandon had seen
Sid in fights before and said that Sid had threatened to kill people in the
past.
Michael
reported a similar encounter with Sid.
Sid approached Michael in his car while Michael was walking and called
Michael over to the driver's side window.
Michael said that he "kept [his] distance. I knew he was gonna pull something." According to Michael, Sid "stunk like
alcohol." Sid asked Michael about
school and his foster home placement, and then said, "Don't go. I don't care what happens to me." Michael was "mad" about the
incident, and he was worried that Sid would hurt him. Specifically, Michael told the Agency that he
was worried that Sid would break in, burn his house down, or have a gun. Michael had seen Sid be violent, and he told
a police officer that the officer had better find Sid and "put him away."
Gina, the boys'
foster mother, had the first interaction with the boys after their separate
encounters with their father. She told
the Agency that Brandon was "completely out of sorts" and looked
ill. Michael seemed very panicked. In response to Gina's questions, both boys
admitted having seen their father.
Michael told Gina that Sid had said, "You are not my sons,
worthless, and would kill them and all of us."
Two days
later, a roommate discovered Sid unconscious on the floor of his home. Paramedics arrived and found him
unresponsive. They transported Sid to a
hospital, where he was admitted for a possible drug overdose. Sid tested positive for methamphetamines as
well as opiates. The hospital reported
that Sid was "extremely agitated, restless, and signed papers and left
against medical advice."
At the
12-month review hearing, both Sid and Brenda submitted on the Agency's
recommendation that the court terminate reunification services for each of
them. The court agreed with the Agency
and terminated services.
At that
same hearing, the boys' counsel requested a temporary restraining order against
Sid based on his conduct and statements towards the boys upon his release from custody. The court granted the request, finding "a
showing of cause to issue a temporary restraining order based on the addendum
[report] dated [May] 22."
name="_ftnref2" title="">[2] During the hearing, Gina and her partner, K.K.,
requested that they be included in the order together with their own children,
Shayla K. and Luke K. K.K. reported that
Sid had driven by their home. The court
issued the temporary restraining order as requested. The order named Michael and Brandon, as well
as Gina, K.K., Shayla, and Luke, as protected persons. The order required Sid, among other things,
to remain at least 100 yards from the protected individuals and their home,
schools, and vehicles. The court set a
hearing to consider a three-year restraining order.
At the next
hearing, the Agency offered in evidence two reports prepared by the social
worker assigned to Michael and Brandon's case.
Sid's counsel objected to one of the two reports as follows:
"I would
object to the addendum coming in, the [May] 22[,] 2013 addendum report.
"My objection
is that unlike the regular review hearings, unlike the jurisdiction and
disposition hearing, there isn't a specific code section that allows social
worker reports or social studies to be admitted into evidence.
"This is
a different type of hearing that this court usually deals with.
"This is
a request for a protective order pursuant to the Family Code.
"So for
those reasons, for the record, I would ask that the [May] 22[,] 2013 addendum
report not be admitted into evidence."
The court overruled Sid's objection and found the report
admissible, in part. The court stated, "What
I am going to do is admit the addendum into evidence to the extent that it
contains the statements of the boys. I
don't believe that necessarily the boys should be forced to get on the stand
and reiterate this information, and I'm looking at [Evidence Code, section] 352
in that regard." The court noted
that Michael and Brandon were present in court and available for
cross-examination about their statements.
The court also offered the parties an opportunity to request a
continuance to call witnesses in light of the court's ruling. Sid did not request a continuance.
The Agency
offered brief stipulated testimony from Michael and Brandon. Michael would testify that Sid was waiting
for him on his path home from school and that Sid asked Michael to go with
him. Similarly, Brandon would testify
that he was approached by his father after getting off his school bus. The court accepted the Agency's offer of
proof without objection by any party.
Sid
testified in person at the hearing. He
admitted having seen both Michael and Brandon on the day he was released from
jail. He said he had not seen them in
over six months and wanted to make sure that they were doing well. He denied raising his voice to either boy,
using any profanity, or being under the influence of drugs or alcohol. Sid specifically denied making the threat to
Michael recited in the Agency's May 22 addendum report, that "You are not
my sons, worthless, and would kill them and all of us." Sid testified that he told the boys that they
would always be his sons, that they were always welcome back with him or his
parents, and that he did not care what happened to him. He wanted them to be happy. Sid acknowledged that both Michael and
Brandon seemed nervous while he was speaking with them.
The court
granted the request for a three-year restraining order. The order again named Michael and Brandon, as
well as Gina, K.K., Shayla, and Luke, as protected persons. The court instructed Sid on the terms of the
order, including that he must "stay 100 yards away from [the protected
individuals], from their home or their job or work place, their vehicles, their
school, and any other care or child care."
However, the written order signed by the court omits this distance. That order, on Judicial Council form JV-250
(Restraining Order—Juvenile), states that Sid "must stay away at least (specify) yards from[]" the protected
individuals and their home, schools, and vehicles. The record does not reflect that this
omission was brought to the attention of the juvenile court. Sid appeals.
DISCUSSION
I
A
Section
213.5, subdivision (a) authorizes the juvenile court to issue a restraining
order "enjoining any person from molesting, attacking, striking, stalking,
threatening, sexually assaulting, battering, harassing, telephoning, . . . contacting,
either directly or indirectly, by mail or otherwise, coming within a specified
distance of, or disturbing the peace of" any dependent child, any other
children in the dependent child's household, or any current caretaker of the
dependent child.
"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.'
[Citation.] Nor does it require
evidence of a reasonable apprehension of future abuse." (In re
C.Q. (2013) 219 Cal.App.4th 355, 363.)
Section 213.5 has been analogized to Family Code section 6340, which governs
restraining orders under the Domestic Violence Prevention Act (DVPA). (See In
re C.Q., at pp. 363-364; In re B.S.
(2009) 172 Cal.App.4th 183, 194.) That
statute "permits the issuance of a protective order under the [DVPA] in the
first instance, if 'failure to make [the order] may jeopardize the safety of
the petitioner . . . .' (Fam. Code, § 6340, subd. (a); see also
Fam. Code, § 6320.)" (
The parties
agree on the standard of review that applies here. In reviewing the sufficiency of the evidence
supporting the court's restraining order, "we view the evidence in a light
most favorable to the respondent, and indulge all legitimate and reasonable
inferences to uphold the juvenile court's determination. If there is substantial evidence supporting
the order, the court's issuance of the restraining order may not be disturbed." (In re
Cassandra B. (2004) 125 Cal.App.4th 199, 210-211.)
B
Sid contends
that the evidence does not support the court's restraining order because in
determining whether to issue the order, the court improperly considered hearsay
statements contained in the Agency's May 22 addendum report. Sid acknowledges that social service reports
like the May 22 addendum report are generally admissible in dependency
proceedings. (See, e.g.,
1569, 1572 ["The language of § 281 broadly authorizes the trial court
to receive and consider social service reports in determining 'any matter
involving the custody, status, or welfare of a minor,' " italics omitted.].) However, Sid argues that multiple layers of
hearsay, even if contained in a social services report, are not admissible. (See Evid. Code, § 1200, subd.
(b).) Specifically, Sid argues that the
boys' statements to their foster mother regarding their encounters with Sid
following his release from custody, including Michael's statement recounting
the threat made by his father ("You are not my sons, worthless, and would
kill them and all of us"), are inadmissible hearsay. Without those statements, Sid argues, the
facts do not support a finding that "failure to make [the order] may
jeopardize the safety of" the protected individuals. (See Fam. Code, § 6340, subd. (a);
p. 194.)
The Agency
counters that Sid has forfeited any claim of error resulting from the admission
of the May 22 addendum report by failing to make a timely and specific
objection to that report in the juvenile court.
The Agency further contends that substantial evidence supports the
restraining order, even if the hearsay statements are excluded.
As a
preliminary matter, we do not agree with the Agency that Sid forfeited the
right to argue on appeal that the May 22 addendum report was erroneously
admitted. "[A] reviewing court
ordinarily will not consider a challenge to a ruling if an objection could have
been but was not made in the trial court."
(In re S.B. (2004) 32 Cal.4th
1287, 1293.) Sid's counsel objected on
the record to the addendum report prior to its admission. The Agency maintains that Sid's objection was
insufficiently specific. We
disagree. Although Sid's counsel did not
use the word "hearsay," it is apparent from the record that the court
understood his objection to be on hearsay grounds. For example, the court specifically
referenced the statements of Michael and Brandon that were contained in the addendum
report in considering Sid's objection. The
court also noted that Michael and Brandon were present at the hearing and were available
for cross-examination regarding their statements. We conclude that Sid's objection was
sufficient to preserve this issue for appeal.
The Agency
relies exclusively on forfeiture and does not respond to the merits of Sid's
hearsay objection. However, we need not
reach the merits of Sid's objection because we conclude that even if the
hearsay statements are excluded, there is substantial evidence to support the
issuance of the restraining order. Sid
acknowledged that he approached both boys, unannounced, as they made their way
home from school, in violation of the court's supervised visitation orders. The Agency's interviews with the boys show
that their encounters with Sid left them frightened and upset. Brandon was "very worried about his
safety" and was also afraid that Sid would hurt his foster mother. Michael said that he believed he was at risk
of his father hurting him, and also feared that Sid might "break in, burn
the house down, or have a gun."
More than a week after the encounter, both boys were still worried about
their safety. Their foster mother also
reported that her family was scared. Sid
had a history of violent encounters and an apparently untreated heroin
addiction. Sid owned firearms in the
past, and Michael witnessed him brandishing a handgun on an occasion when he
felt his safety was threatened. Sid's
ex-wife, Brenda, anticipated trouble before Sid's encounters with the boys and
reported being afraid of Sid herself. Based
on this evidence, the juvenile court could reasonably find that failure to
issue a protective order might jeopardize the physical safety of Brandon and
Michael, as well as their foster mother and her family. (In re
B.S., supra, 172 Cal.App.4th at
p. 194.)
Sid's
assertion that he "did not have a history of acting in a violent or
threatening manner toward his sons (or any of the other people that the
restraining order specified as protected parties)" is contradicted by his
sons' reactions to their encounters with Sid after his release from jail. Both boys felt scared and threatened after
the encounters, for themselves and for their foster family. Both boys interpreted Sid's words and actions
as credible threats of violence.
Similarly,
Sid's contention that he "had not engaged in any of the acts which may be
prohibited under section 213.5" is unsupported by the record. Under section 213.5, "molesting" is
one activity that may be enjoined. "
'[M]olesting' " need not be sexual; it may include activity that is troubling,
disturbing, annoying or vexing. (
Cal.App.4th at p. 212.) While not every troubling
or disturbing activity may rise to the level of molestation, the facts show
that Brandon and Michael were both profoundly troubled and disturbed as a
result of their encounters with Sid. The
record therefore supports a finding that Sid engaged in activity that could be
enjoined under section 213.5.
Sid bears
the burden of demonstrating the absence of substantial evidence to support the
court's order. He has not done so. The court's decision to issue the restraining
order will therefore not be disturbed. (
II
Sid argues
that the "stay away" provision of the restraining order should be
struck because it fails to include the distance that Sid must maintain between
himself and any protected person or location.
The Agency acknowledges that the distance was omitted from the
restraining order, but it contends that any error is "harmless"
because the court orally admonished Sid to stay 100 yards away during the
hearing on the restraining order.
We do not
agree with the Agency that the omission is "harmless." "It has long been settled that the
action of the court must be made a matter of record in order to avoid any
uncertainty as to what its action has been." (In re
Marcus (2006) 138 Cal.App.4th 1009, 1015, citing Von Schmidt v. Widber (1893) 99 Cal. 511, 515.) "To hold a person in constructive
contempt for wilful disobedience of a court order, the order must be in writing
or must be entered in the court's minutes. It must also be definitive; otherwise, it
lacks the certainty required to punish through a proceeding which in a broad
sense is regarded as criminal or quasi-criminal [citation]." (Ketscher
v. Superior Court (1970) 9 Cal.App.3d 601, 605.)
It is
apparent, however, that the omission of any distance from the "stay away"
provision of the restraining order was inadvertent and clerical in nature. During the hearing on the restraining order,
the court stated that it would "grant the permanent restraining order"
and orally ordered Sid to "stay 100 yards away from [the protected
individuals], from their home or their job or work place, their vehicles, their
school, and any other care or child care."
The court's statements demonstrate that the court intended to order Sid
to stay 100 yards away from the protected persons and locations in its
subsequent written order. Without that
distance, the stay away order is plainly incomplete.
Contrary to
Sid's contention, however, we need not strike the defective provision. We may instead modify the order to conform to
the oral instructions of the juvenile court.
(Code Civ. Proc., § 43; see also People v. Mitchell (2001) 26 Cal.4th 181, 185.) "The simplest situation calling for
modification instead of reversal is where the judgment contains an obvious
clerical error or other defect resulting from inadvertence." (9 Witkin, Cal. Procedure (5th ed. 2008)
Appeal, § 859, p. 922.) Here, the
restraining order contains an obvious clerical error. We will therefore modify the order to reflect
the distance of 100 yards, as the juvenile court clearly intended.
DISPOSITION
The juvenile court's June 13, 2013 restraining order is
modified to include the omitted distance, 100 yards, in the stay away provision
in paragraph 8.b. of the order. As
modified, the order is affirmed. The
juvenile court shall prepare a modified and corrected order.
AARON, J.
WE CONCUR:
BENKE, Acting P. J.
McDONALD, J.
name="_ftn1" title="">[1] Further statutory references are to the
Welfare and Institutions Code unless otherwise noted.
name="_ftn2" title="">[2] The Agency's May 22 addendum report
contained summaries of the boys' statements to the Agency, as well as Gina's
statements to the Agency recounting what the boys had told her that Sid had
said to them.
