Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. HJ10014697.
POLLAK, ACTING P. J.
B.C., the father of K.C., appeals from a restraining order issued by the juvenile court. He argues that mother did not exercise due diligence in attempting to have him served with notice of the hearing on the restraining order and that the juvenile court erred in issuing a restraining order that did not contain provisions for visitation. We hold that mother exercised due diligence in attempting service, and the court did not err in issuing the restraining order. Therefore, we shall affirm.
Background
On April 19, 2010, a petition was filed alleging that K.C. and her two siblings (T.H. and M.H., who are not B.C.’s children) came within the jurisdiction of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (b). The petition alleged that K.C. was 12 weeks old on April 14, 2010, when her mother returned home and discovered that K.C. “had bruising on her cheek and ‘blood in her eyes.’ ” K.C. was admitted to the hospital after a CT scan revealed non-accidental fractures of two ribs and non-accidental trauma to her eyes. The injuries were diagnosed as “indicative of shaken baby syndrome.” K.C.’s parents have a history of domestic violence and there was a restraining order in effect at the time of this incident.
Further statutory references are to the Welfare and Institutions Code unless otherwise specified.
The petition alleges that K.C’s siblings also come within the jurisdiction of the court under section 300, subdivision (j), which protects siblings where one has been abused or neglected and “there is a substantial risk that the [other] child will be abused or neglected.”
The petition does not state which parties were protected or restrained by the restraining order.
At a detention hearing on April 20, 2010, K.C. was ordered removed from her parents’ house.
On May 25, 2010, an addendum report was filed stating, among other things, that “[s]ince the uncontested hearing on 5/4/2010 the undersigned [social worker] has not heard from the father....”
On June 28, 2010, the court adjudged K.C. a dependent of the juvenile court, ordered the agency to provide maintenance and reunification services, and to “arrange for supervised visitation between the child and the father as frequently as possible consistent with the child’s well-being.”
On July 6, 2010, mother filed an application for a juvenile restraining order against father, and was granted a temporary order, protecting her and her three children. The order included findings that K.C. “sustained nonaccidental injuries on 4-14-10 while in [father’s] care. The matter is the subject of a police investigation. The restrained party has a history of domestic violence in 2008, 2006, and 2000. The restrained party has an active warrant for his arrest for PC 273.5, violation of probation.”
On July 21, 2010, when mother had been unable to serve father with notice of the hearing on the restraining order, the court granted a continuance of the temporary restraining order to August 3. On August 3, the court again extended the temporary restraining order to August 11 because mother had again been unsuccessful in serving father with notice of the hearing.
On August 11, 2010, the court held a hearing on the application for the restraining order against father. Father was not present at the hearing, though his attorney appeared. The court took judicial notice of the jurisdiction and disposition reports. Mother testified and the court issued the restraining order protecting mother, K.C., and her two siblings for a period of three years. The order noted that father was not present at the hearing and that he did not receive notice. No visitation order was included.
Father filed a notice of appeal from the July 21, August 3, and August 11, 2010 orders.
Discussion
Attempted service of the restraining order
Father argues that he did not receive proper notice of the hearing on the restraining order and that mother did not show due diligence in attempting to have him served.
Restraining orders in juvenile dependency proceedings are governed by section 213.5, which provides that a juvenile court may issue ex parte restraining orders for a period not to exceed 20 days. (§ 213.5, subd. (a), (c).) Section 213.5 further provides that the juvenile court may issue restraining orders after notice and a hearing, for a period not to exceed three years. (§ 213.5, subd. (d).) Restraining orders under section 213.5 are to be issued “upon application in the manner provided by Section 527 of the Code of Civil Procedure.” (§ 213.5, subd. (a).)
Code of Civil Procedure section 527 governs temporary restraining orders and preliminary injunctions generally. It provides that where a temporary restraining order has issued ex parte, an applicant for a preliminary injunction shall, “within five days from the date the temporary restraining order is issued or two days prior to the hearing, whichever is earlier, serve on the opposing party... any affidavits to be used in the application, and a copy of the points and authorities in support of the application.” (§ 527, subd. (d)(2).)
Section 213.5, subdivision (c) provides in part that “The court may, upon its own motion or the filing of an affidavit by the person seeking the restraining order, find that the person to be restrained could not be served within the time required by law and reissue an order previously issued and dissolved by the court for failure to serve the person to be restrained.”
“Due process requires ’notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ [Citation.] The means employed to give a party notice for due process purposes must be such as one, desirous of actually informing the party, might reasonably adopt to accomplish it. [Citation.] [¶] If the whereabouts of a parent are unknown, the issue becomes whether due diligence was used to locate the parent. [Citations.] The term ‘reasonable or due diligence’ ‘ “denotes a thorough, systematic investigation and inquiry conducted in good faith.” ’ [Citation.] Due process notice requirements are deemed satisfied where a parent cannot be located despite a reasonable search effort and the failure to give actual notice will not render the proceedings invalid.” (In re Claudia S. (2005) 131 Cal.App.4th 236, 247.)
On July 21, 2010, mother’s attorney asked the court for a continuance of the hearing for a permanent restraining order “as she has been unable to serve the... father. [Mother] also requests that the temporary restraining order issued previously be renewed.” The court granted the continuance, renewed the temporary restraining order, and set a hearing for August 3, 2010.
On August 3, mother’s attorney “indicated that she was not able to serve [father], and request[ed] a continuance.” The court continued the matter for another week.
On August 3, the private investigator that mother hired to serve father filed a declaration of due diligence. The declaration states that on July 31, between 7 p.m. and 9 p.m., she went to 34864 Ozark River Way in Fremont, which is a home owned by father’s father. “It had been reported that [father] might still reside, or at least frequent, this location.... Attempts were made at the door, but no one responded, even though the sounds of someone inside playing a videogame could be heard from the porch. [¶] A search of both public and private databases was conducted in an effort to determine a current address for [father]. Besides the Ozark River address, two other address[es] had been reported for [father] as recently as June of 2010; 24660 Amador Street, #227, Hayward, CA 94554 and 2763 Nashua Street, Atwater, CA 95301.”
The declaration continues: “Sunday, August 1, 2010, 9:30 a.m.—I traveled to 24660 Amador Street, #227, Hayward, CA 94554. There was no response at the door. I was not able to get a response at any of the neighbor’s doors either. [¶]... 10:00-1:30 p.m.—I traveled back to 34864 Ozark River Way.... All the previously observed vehicles were parked, covered, in the driveway. No one was observed coming or going from the residence. At 1:30 p.m. I knocked on the door and it was answered by [an] older male, believed to be [father’s father]. I asked for [father by the name M.C.] and was told there was no one there by that name. I then asked for [father by the name B.C.] and was told there was no one by that name there.”
Finally, the investigator declared that on Monday, August 2, at 9:00 a.m., “It had been reported that [father] worked at the Dublin BART station. I traveled to that location, but attempts to locate him there were unsuccessful.”
On August 11, mother filed a second declaration of due diligence written by the private investigator. This declaration stated that on August 6 she investigated “[a] new possible address [ ] for [father] of 1718 8th St., Apt. A, Oakland, CA. I traveled to that location and found it to be a duplex located in a low-income, high crime area of Oakland. Although there were several vehicles parked on the street in front of the residence, there were no vehicles parked in the driveway. There was no response to my knocks on the door. There were several individuals hanging out on the street engaged in what appeared [to] be drug-related activity and I did not feel safe staying in the area for long. I departed and went to the West Oakland BART station located just a few blocks away. I was not able to observe [father], or obtain any information regarding his work schedule.”
The investigator made another attempt to locate father at the 8th Street apartment on August 7 at 10:00 a.m. “Again, no vehicles were parked in the driveway and I got no response at the door. I was not able to gain any information from neighbors regarding the occupants of apartment A.”
On Monday August 9, between 6:00 and 6:30 p.m., the investigator went to the Dublin/Pleasanton BART station where she was informed father “was working the ‘night board.’ ” “I traveled to the BART station in Dublin and found that the offices are not accessible to the public and inquiries with security revealed that [father] was not at that location at the time. We later learned that [father] is off on Mondays and Tuesdays.”
On August 11, a hearing was held on the restraining order application. Father’s attorney appeared, but father did not. At the hearing on the restraining order, mother testified that she last spoke with father approximately two weeks previously, when she had attempted to have him served. When she reached father by phone, she asked to meet in person and he told her he would meet her the next day, but he failed to appear for the agreed meeting. She testified that the day before the hearing, “he sent e-mails through Facebook to my boyfriend Sam and then sent one to me regarding the restraining order, trying to contact him.” The last time she had seen father was in July when he “came into the store to my job and stayed for maybe about 15 to 20 minutes. And I told him that I didn’t want to have anything to do with him, to leave me alone....”
Father’s attorney stated that he had not had contact with father since the first application for a restraining order was filed on July 6. He objected to the declarations of due diligence on the ground that the declarations did not establish that due diligence to locate father had been exercised. Father’s attorney further informed the court that father “is actually a transient. He does not have an address at this time.” Mother’s attorney represented that the investigator had returned to the BART platform on a day that father was working and was told that he was not in a public area and that she had to leave.
In connection with the preparation of the May 4, jurisdiction report, father had told the social worker that he resided at the address on Ozark River Way. Based on that and other available information, mother’s investigator diligently pursued the avenues available to locate and serve father in person. Father suggests that the search should have included a search of jails and prisons and that the investigator should have followed up on a comment by mother in the May 24 addendum report that father “might” be staying with his sister. However, father does not suggest that either search would have resulted in service. He also suggests that due diligence was lacking because the investigator did not return to attempt service at the BART station during his working hours. However, the investigator had been told that father worked in an area that was off-limits to the public and it was therefore reasonable that she did not return.
In short, we find no basis to reject the trial court’s determination that mother employed means reasonably calculated to locate father and give him notice of the hearing. In all events, father was represented by counsel at the hearing. The court did not err in finding that attempts to serve father were adequate and acting upon the application for the restraining order.
Propriety of the terms of the restraining order
The disposition order that the court entered on June 28, 2010 provided that father was to have “supervised visitation... as frequently as possible consistent with the child’s well-being.” The restraining order issued by the court on August 11 states that father “must not harass, attack, strike, threaten, assault..., hit, follow, stalk, molest, destroy personal property of, disturb the peace of, keep under surveillance, or block movements of...” mother or K.C., nor may he contact them. The order contains no provision regarding visitation. The order was entered on a California Judicial Council form containing the following paragraph: “Restrained person ___ has the right to visit the minor children, ” followed by two options: “1) ___ none” and “2) ___ visitation according to the attached schedule.” The court checked neither box. Father contends that the court abused its discretion by failing to confirm in the restraining order that he remained entitled to supervised visitation. He argues that “the silence of the restraining order about visitation may be interpreted by law enforcement and others to mean that father ha[ve] no visits with his daughter.”
Because the court checked neither of the two boxes on the restraining order, it is unclear whether the court intended to remove his right to supervised visitation as provided in the June 28 order. Assuming that the court did intend to preclude such visitation, we reject father’s contention that this could be accomplished only by a motion under section 388. Father cites no authority, and we are aware of none, that removes the court’s authority to enter an unqualified stay-away order upon a proper showing without also moving under section 388 to modify any pre-existing orders allowing visitation. Making the same assumption, we also disagree that the record lacks evidentiary support to justify such a restriction.
In In re Lance V. (2001) 90 Cal.App.4th 668, on which father relies, mother requested mediation to enforce an existing visitation schedule. When mediation failed, the court ordered a hearing at which it substantially changed its visitation orders. (Id. at pp. 672-673.) The court found that mother’s due process rights had been violated because when she requested mediation, “mother did not seek to alter the previous visitation orders; she sought a voluntary resolution of difficulties that were occurring with visitation as ordered.” (Id. at p. 675.) Further, “mother was not provided notice that a change might occur, she did not have an ample opportunity to refute the assertions made by others at the hearing, and she was not afforded a full opportunity to present conflicting evidence.” (Id. at p. 676.)
“Visitation is a necessary and integral component of any reunification plan. [Citations.] ‘An obvious prerequisite to family reunification is regular visits between the noncustodial parent or parents and the dependent children “as frequent[ly] as possible, consistent with the well-being of the minor.” ’ ” (In re S.H. (2003) 111 Cal.App.4th 310, 317.) However, “ ‘[n]o visitation order shall jeopardize the safety of the child... ’.” (In re C.C. (2009) 172 Cal.App.4th 1481, 1490.) (¶ 362.1, subd. (a)(1)(B).) “[T]he power to decide whether any visitation occurs belongs to the court alone.” (In re S.H., supra, 111 Cal.App.4th at p. 317.) “The underpinnings of a finding of detriment should also reflect the particular statutory context in which the finding is made.” (In re C.C., supra, 172 Cal.App.4th at p. 1490.)
Mother testified at the August 11 hearing that in August 2008, father attempted suicide after the couple broke up. When he was released from the hospital, he came to mother’s house and followed her inside. She tried to call the police, “and he took my phone from my hand and broke my phone, twisted my hand, kicked the door in, kicked me into the door.... He had grabbed me [and] shoved me into the closet. I... fell down. He walked over me and... kicked my rib here.” The police arrived and took photographs of mother, who was taken to the hospital. Father was charged with domestic violence and a restraining order was issued. Mother testified that she is “terrified of [father]” because “[h]e knows where I live [and] I’ve seen him on the BART. He’ll stop the train and look out at me while I’m getting out of the car with the baby.” She testified that three times in the past month, she had been getting out of or into her car, which was parked in a lot near the BART tracks, “and I’ll hear the BART train stop. And I turn around, and I’ve actually seen him drop the window and look out at me.” She also testified that father could see into the bedroom window of her apartment from the train. She knows this because when they were dating, she would wave to father as he drove by.
“This last contact—he knows about the restraining order. He sent it in an e-mail to me that I had too much time on my hands. Why am I trying to get a restraining order?... He’s left a note on my car before when he came to my job, and I told him to leave me alone, that we still have the [harass, annoy, molest order] in place, and you know that... [y]ou need to leave me alone. He still showed up. He sent the note from another coworker to leave on my car. This sending these e-mails. He... does all this. And I know he is doing it because he is trying to prove that he is not going to get in trouble for it, and he can just continue to get away with it.”
With regard to her children, mother testified that she believed they were in danger, particularly [K.C.]. “I’m afraid that if he ever comes around her that he would do something. I’ve heard him talk about his other daughter and how he, how he hated his other daughter. And how he can sit there and blatantly say, I hate this little girl, and I hate her mother.... He has told me before he had a plan to kill his baby’s mom.... He told me his plan. And I know how violent he can be and how manipulative.... I’m terrified of what he would do to my daughters if I’m not there.... I don’t want him to know where I’m at. I don’t want him to have contact with my daughters because I’m terrified of what he would do to them or do to me.” She testified that after repeatedly telling her about his plan to kill the mother of his other daughters, he warned her, “You don’t want to put yourself in that situation.”
Although we believe that this record would support the restriction on visitation if that was what the court intended, we recognize the ambiguity created by the court’s failure to check either of the two boxes on the Judicial Council form. And whether such visitation should be permitted undoubtedly is for the trial court to determine in the first instance. Nonetheless, father’s attorney neither objected to the entry of the restraining order on the ground that it did not provide for supervised visitation, nor was the ambiguity in the court’s order brought to the attention of the trial court for clarification. Not having been raised below, the ambiguity provides no basis for reversing the order on appeal. (In re Richard K. (1994) 25 Cal.App.4th 580, 590[“[a]s a general rule, a party is precluded from urging on appeal any point not raised in the trial court”]; People v. Rodriquez (1969) 274 Cal.App.2d 770, 775-776 [specific objections are “waived” on appeal where trial counsel “merely interposed a general objection”].) However, our affirmance of the order does not preclude father from making an application to the trial court to modify and clarify the order should he deem it appropriate to do so.
Disposition
The order of the juvenile court is affirmed.
We concur: Siggins, J., Jenkins, J.
The circumstances here differ. Mother made every attempt to notify father that she was seeking a restraining order, and it is clear from the record that he was aware that she was moving the court for such an order. Moreover, father’s attorney was present at the hearing and did not object to the absence of visitation provisions in the order.