Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of San Diego County No. J517052A-C, Martin W. Staven, Judge. (Retired Judge of the Tulare County S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
McINTYRE, J.
P.A. appeals following a September 8, 2010 hearing, in which the juvenile court issued a permanent restraining order prohibiting him from having any contact with three of his children and their mother, and terminated dependency jurisdiction. P.A. asserts there is not substantial evidence to show he was properly served with the application or the pleadings, and the affidavit and factual findings are insufficient to support the restraining order. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
P.A. and Mary C. have three children, 12-year-old K.A., 10-year-old KY and five-year-old KH (the children). (See In re P.A. (Jul. 16, 2009, D054070) [nonpub. opn.].) In 2008 the juvenile court removed the children from P.A.'s care after finding that he physically abused K.A. and KY and several of their half siblings, and sexually and physically abused another minor who lived in the household. The court placed the children with their mother and issued an order prohibiting P.A. from contacting them.
In June 2009 the Agency recommended the court grant Mary sole legal and physical custody of the children and terminate jurisdiction. Minors' counsel filed an application and affidavit for a restraining order against P.A. In August 2009 the court granted a permanent restraining order against P.A., issued family law custody orders granting sole physical and legal custody of the children to Mary and terminated jurisdiction.
On appeal, this court reversed the restraining order for lack of notice to P.A. and remanded the matter to the juvenile court for a new hearing on the application and affidavit after proper notice.
On August 24, 2010, minors' counsel filed a new application and affidavit for a restraining order against P.A. Supporting documents were attached to the application. The documents included a copy of this court's opinion, In re P.A., supra, D054070, photographs of P.A. holding a shotgun, and the Agency's jurisdiction/disposition and six-month status review reports.
A hearing on the new application for the restraining order was held on August 24, 2010. P.A. objected to the proceedings, stating he just received a copy of the Agency's report. The juvenile court issued a temporary restraining order that stated the factual basis was severe physical abuse by P.A. and the children's ongoing trauma and post-traumatic stress disorder, and also referred to the "social worker reports in [the] dependency file." The court set a hearing for September 8. P.A. left the courtroom before he could be served with the temporary restraining order and was personally served with the order on August 30.
At the September 8 hearing, P.A. acknowledged he was served with the temporary restraining order. The juvenile court asked for his response. P.A. denied the juvenile court previously found that he physically abused his children or that they were suffering from trauma. The court issued an order restraining P.A. from contacting the children and Mary for three years, and terminated jurisdiction.
DISCUSSION
When the juvenile court terminates its jurisdiction over a dependent child and an order has been entered with regard to the custody of the child, the juvenile court on its own motion may issue a protective order under Welfare and Institutions Code section 213.5 or Family Code section 6218, and an order determining the custody of, and visitation with, the child. (Welf. & Inst. Code, § 362.4.) (Unless otherwise indicated, further statutory references are to the Welfare and Institutions Code.) Any order issued under section 362.4 continues until modified or terminated by a subsequent order of the superior court. (Ibid.)
The court may issue, either ex parte or after notice and hearing, restraining orders that enjoin any person from molesting, attacking, striking, sexually assaulting, stalking, or battering a dependent child, another child in the household or a parent or caregiver of the dependent child. (§ 213.5, subds. (a), (d); Cal. Rules of Court, rule 5.630(e).) (Further rule references are to the California Rules of Court.) An application for a restraining order may be made orally at any scheduled hearing, by written application or may be made on the court's own motion. (Rule 5.630(b).)
P.A. contends there is nothing in the record to show he was served with the written application and affidavit, and supporting documents, for the restraining order that was filed on August 24, 2010. He asserts he was denied due process because he did not have sufficient notice of the specific conduct or facts that were material in issuing the restraining order. Alternatively, P.A. asserts if he received the supporting documents, notice was inadequate because the documents did not allege the specific conduct to be enjoined with sufficient precision.
Although the record does not clearly show that P.A. was served with the application for a restraining order and supporting documents, we conclude that he had adequate notice of the proceedings. P.A. was served with the temporary restraining order and received notice of the September 8 hearing. That order stated it was based on severe physical abuse of the children by P.A. and the children's ongoing trauma and post-traumatic stress disorder. P.A.'s response to the court contesting the findings that he had physically abused and traumatized his children indicates he was aware of the factual basis underlying the issuance of the restraining order.
We are not persuaded the apparent lack of service on P.A. of the minors' counsel's application for a restraining order and supporting documents constituted a denial of due process. An application for a restraining order may be made orally at any scheduled hearing, by written application or on the court's own motion. (Rule 5.630(b).) When a temporary restraining order is granted without notice, the matter must be made returnable on an order to show cause why the order should not be granted, no later than 15 days or, on a showing of good cause, 20 days from the date the temporary restraining order is granted. (§ 213.5, subd. (b); rule 5.630.) The record clearly shows the juvenile court set a hearing on issuing a permanent restraining order for September 8. P.A. was present at the September 8 hearing and had the opportunity to be heard on the issuance of the permanent restraining order.
P.A. also contends there is not substantial evidence to support the affidavit and the factual findings. We disagree. "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." (Rule 5.630(h)(2).)
The contents of the juvenile court file shows that after a lengthy trial, the juvenile court sustained by clear and convincing evidence allegations that P.A. seriously physically abused K.A. and KY, and their older half siblings, and the children and their half siblings were at risk of sexual abuse and further physical abuse. The social worker's court reports detail P.A.'s severe and ongoing abuse of his children. We set forth only a few examples here. P.A. made K.A. stand naked in a corner with a cover over her head while he whipped her with a belt. He hit K.A. and a half sibling until they bled. When P.A. was drunk, he kicked K.A. He punched her in the face with a closed fist. KY described an incident in which P.A. made K.A. take off her clothes, bound her wrists and ankles with a belt and beat her while she was naked. K.A. and KY had scars from P.A.'s beatings. P.A. sexually and physically abused a minor who was living in his household. He physically abused Mary when she was pregnant with KH. Before the children's dependency cases began, P.A. held a five-year-old daughter underwater in a bathtub, resulting in the child's hospitalization for hypothermia. He was incarcerated for 18 months for beating her.
K.A. and KY continued to exhibit symptoms of post-traumatic stress disorder throughout their dependency cases, including fear of separation, anxiety and sleep disturbances. K.A. would wake up screaming "get him off of me." She attempted to hide if she thought she saw her father. In their mother's care, the children went from being terrified, anxious and withdrawn to vivacious, active and high-spirited. They continued to be afraid of P.A. and looked to their mother and stepfather for protection.
We conclude that the court did not err when it issued the permanent restraining order. P.A. had notice of the issues underlying minors' counsel's application for a restraining order. He received notice of the hearing and an opportunity to be heard. To the extent the record does not clearly reflect service of the application and supporting documents on P.A., we conclude that error, if any, was harmless. There was no miscarriage of justice and reversal is not required. (Cal. Const. art VI, § 13.)
DISPOSITION
The order is affirmed.
WE CONCUR: McDONALD, Acting P. J., IRION, J.