Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. Nos. J40186, J40189
Bamattre-Manoukian, Acting P.J.
Theresa P. (mother) and Brett P. (father), the former adoptive parents of one child and former legal guardians of another, appeal from a post-termination restraining order requiring them to stay at least 100 yards away from the children and their foster parents. Appellants contend that the juvenile court denied them due process when it relied on hearsay and did not permit them to cross-examine the hearsay declarations. As we find that substantial evidence supports the restraining order and that parents were not denied due process, we will affirm the juvenile court order.
BACKGROUND
This is parents’ second request for appellate review of juvenile court orders involving these two children. On motion of appointed counsel for the children, we have taken judicial notice of our record and opinion in parents’ prior appellate proceeding. (Theresa P. v. Superior Court (Aug. 29, 2006, H030249) [nonpub. opn.] (Theresa P.).)
On July 8, 2005, the Monterey County Department of Social Services (the Department) filed similar petitions as to the two children, T. (age 14), and Ke. (age 2), pursuant to Welfare and Institutions Code section 300, subdivisions (b) [failure to protect], and (j) [abuse of sibling]. The petitions alleged that the girls were placed into protective custody on July 6, 2005. Mother and father were the adoptive parents of Ke., and legal guardians of T. On July 5, 2005, the Department received a referral alleging the sexual abuse of two adopted boys, Ka. (age 6) and D. (age 5) in a campground in San Luis Obispo County and interviews of the boys by that county’s sheriff’s department confirmed that the boys were molested. In addition, the petitions alleged that a private adoption agency had denied the parents certification for adoption of two girls, C. (age 12) and S. (age 10) that Sonoma County had placed in parents’ home, due to a substantiated child abuse report against mother. Mother had previously run a daycare center, but there were reports of physical and mental cruelty to the children in her care. The state revoked her license, and the allegations were substantiated at a subsequent trial.
Further statutory references are to the Welfare and Institutions Code unless otherwise specified.
“After several continuances, the juvenile court conducted a contested jurisdiction/ disposition hearing on December 5, 2005. Parents submitted the matter on the social worker’s report as amended on the record. The court found the allegations in the petitions to be true, ordered reunification services be offered both parents, and set a review hearing for March 3, 2006. Both parents were to participate in and complete a psychological evaluation. The court informed parents that, should they fail to participate regularly in any court-ordered services or fail to avail themselves of provided services, the court could terminate efforts to reunify them with the children after March 3, 2006, and terminate their parental rights.” (Theresa P., supra, H030249.)
“After several continuances, the juvenile court conducted the contested review hearing on May 22 and 24, 2006.” (Theresa P., supra, H030249.) “The court issued its decision on May 30, 2006. The court stated that it previously found by clear and convincing evidence that D., Ka. and S. were sexually abused by father, and that it continued to agree with those findings. The children were removed from mother’s care because she was unable to protect the children due to her choosing to believe father’s denials rather than the reports of the children. After initially complying with the case plan, parents are again living together, they intend to move to Oregon together, and they have both attacked the credibility of the children and other witnesses. The court found by clear and convincing evidence that reasonable services designed to help the parents overcome the problems that led to the children’s removal have been provided or offered to parents, but the parents have not made substantive progress toward alleviating or mitigating the causes necessitating the children’s out-of-home placement. The court found that return of the children to the parents, or either of them, would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the children. Moreover, the older children remain extremely fearful of harm if they were returned. . . . Therefore, the court terminated services to parents and set a selection and implementation hearing for September 22, 2006.”
Parents filed a writ petition seeking review of the order setting a hearing under section 366.26. This court found that substantial evidence supported the juvenile court’s finding that reasonable services were provided or offered, and that no other error or denial of due process had been shown. Accordingly, we denied the petition on August 29, 2006. (Theresa P., supra, H030249.)
The social worker’s report for the section 366.26 hearing recommended that the parental rights of T.’s birth mother and father, as well as the guardianship by parents be terminated and a permanent plan of adoption be established for T. The report further recommended that the parental rights of parents be terminated as to Ke., and that a permanent plan of adoption be established for Ke. The children had been placed for over a year in an approved placement that was also their prospective adoptive placement. The foster mother had previously been the children’s childcare provider while the children resided with parents. The foster parents had formed a strong family bond with the children and were committed to providing them a permanent and safe home, and the children identify the foster parents as their primary caretakers. Father had no visitation with the children during the dependency proceedings due to the nature of the abuse in the case. Visitation between mother and T. was suspended in early 2006, but monthly supervised visitation between mother and Ke. continued. However, the social worker recommended that no further visitation be ordered.
At the September 22, 2006 hearing, the court admitted the social worker’s report into evidence, and the parties submitted the matter on the report. The court adopted the findings and recommendations of the report, terminated parents’ parental rights to Ke. and guardianship as to T., and established adoption as the permanent plan for both children.
On December 7, 2006, the children’s court-appointed attorney filed an application and affidavit for a restraining order against mother on behalf of the children and their foster parents. The application requested that mother be ordered to stay at least 100 yards away from the family’s persons, residence, place of work, child care, school, vehicles, and day care business at the family home.
Attached to the application was a Monterey County sheriff’s incident report detailing the investigation of an anonymous report to child protective services (CPS) that the foster father “had been walking in on and staring at [T.] when she was in the nude or in the shower or changing her clothes.” The investigating sheriff’s deputy spoke separately to T. and each of the foster parents, and all of them told him that the report was false, and that they suspected that mother had made the anonymous report. The foster mother also reported that she had been getting harassed by mother.
Also attached to the application was a sheriff’s office memorandum dated November 21, 2006, stating that CPS “reported they received third-hand information that [mother] was possibly organizing a kidnapping of her 4-year-old biological [sic] daughter, Ke[.] from her foster parents, . . .” The memorandum noted that mother and the foster family resided a few houses apart from each other, and that CPS and the foster parents “only requested that the Sheriff’s Office conduct close patrol of [the foster parents’ home] and the surrounding area for any suspicious activity.” The memorandum further stated that the reporting deputy advised the foster parents “if they notice anything suspicious or feared for their safety to immediately call 911. [The deputy] also advised them that they could possibly obtain a restraining order against [mother]. They advised [the deputy] that they had not had any troubles with [mother] and that she or her husband have called their residence.”
The court granted a temporary restraining order ending December 20, 2006, and set a hearing for a three-year restraining order for that date. Both parents were served with the restraining order on December 9, 2006.
Mother appeared without counsel and father appeared with his criminal defense attorney at the hearing on December 20, 2006. Counsel for the children summarized on the record the above information underlying the request for the restraining order. Mother requested a continuance. The court continued the matter to January 10, 2007, extended the temporary restraining order to that date, and informed mother and father that they must both comply with the temporary orders.
Both mother and father appeared without counsel on January 10, 2007. Mother informed the court that they had been served with copies of the restraining order but had never been served with the moving papers. Their counsel received copies of the moving papers from father’s criminal defense attorney the week before but he had not had time to review them, so mother requested a continuance. Counsel for the children gave a copy of the application to mother and father in open court. The court continued the matter to January 24, 2007, and extended the temporary restraining order to that date.
On January 24, 2007, the court continued the matter at parents’ counsel’s request to February 14, 2007. On February 9, 2007, the court continued the matter at all parties’ request to February 23, 2007. The social worker filed a post-permanency planning review report on February 13, 2007, that stated the permanent plan of adoption for both children continued to be appropriate and that a post-permanency planning review hearing was set for March 23, 2007.
At the hearing on February 23, 2007, counsel for the children recited the procedural history of the matter for the court. Counsel stated that he had called parents’ counsel on December 5, 2006, to inform him of counsel’s intention to apply for a restraining order. The court subsequently granted a temporary restraining order, and counsel was requesting that “both the mother and the father be restrained from any contact with the current foster parents” and that the protection be “for not only the kids but the parents and their foster care business at that address,” which was part of the temporary order. Counsel for the Department stated that the Department supported the request.
Parents’ counsel moved to strike “the hearsay documents which are attached to the restraining order” and requested “dismissal of the matter as it[’]s entire[l]y based on hearsay, sometimes second and third level hearsay, in a case that involves a restrain[t] on liberty.” “And I would also point out that there is absolutely no allegation about [father] at all, in any event, so how it got granted in the first place I don’t know.” The court denied the motion to strike, and stated that it would consider the contents of the police reports attached to the application, as well as “any other evidence that either side wishes to present.” Counsel for the children submitted a transcript of the May 24, 2006 hearing, and the court admitted it into evidence over parents’ counsel’s objection.
Mother testified that she had never made plans to kidnap a child, and that she never contacted a law enforcement agency to report that the children’s foster father was watching a child in the shower. Mother also stated that there are “four houses between” their house and the foster parents’ house, so that their houses are “[l]ess than a football field” apart.
Father testified that he had never arranged a plot to kidnap a child, that he never heard mother arrange such a plot, and that he never contacted a law enforcement agency to claim that the foster father watched a child take a shower. However, he heard his mother express serious concerns to the Department about mother kidnapping Ke. Father also stated that the foster parents “drive by our house with our kids in the car, so that the kids see us.”
Counsel for the children argued that the children and their foster parents needed to be protected. CPS and the sheriff’s department take threats of kidnapping seriously, and mother has a history of discussing it. In addition, there was an unsubstantiated report of sexual abuse by the foster father. Counsel requested that “a three year restraining order be in place so that [parents] do not harass or have any contact with the [foster parents] at their property . . . .”
Parents’ counsel argued that father was not named in any kidnapping plot and that there was no proof that either parent had recently plotted to kidnap a child or had reported that the foster father was watching a child in the shower. He argued that parents had no prior restraining orders and that the request for this restraining order was “based on hearsay evidence, third and fourth level hearsay evidence.” He asked the court to dismiss the restraining order or, “if it were to grant it to at least take into account that [parents’] house might be less than a hundred yards away from the house they’re restrained from, . . .”
The court stated that it reviewed the submitted hearing transcript. It did not give any weight to the report regarding the foster father. However, the court found that the testimony in the transcript that reflected that mother had spoken to the paternal grandmother about possibly kidnapping a child “clearly provides more than a preponderance of the evidence in this case. And so that is along with the other information that is provided in that transcript and it was previously testified to and to which these parties were parties at the time and had an opportunity to cross-examine at that time and did. [¶] So the Court does find that there is a sufficient basis for the issuance of the restraining order. I think that that the concern about the distance is legitimate. So the language of the restraining order would be modified to include that the hundred yards stay away . . . [¶] . . . [¶] . . . does not apply to the normal access and egress to and from their property and residing at their property. So you aren’t moving and it’s not a violation for you to pass within a hundred yards or be within a hundred yards as long as it is going to and from your home or being at your home.” The court stated that it would review the order after six months, and set a hearing for August 24, 2007.
Parents filed a timely notice of appeal from February 23, 2007 findings and orders of the court.
DISCUSSION
Parents contend that the juvenile court denied them due process by relying on hearsay and not permitting them to cross-examine the hearsay declarations. They argue that there was no admissible evidence at the hearing that supports the trial court’s findings: there were no allegations against father and the only evidence presented against mother was hearsay. They further argue that by “not providing [them] with notice that the restraining order hearing would be conducted by receiving multiple levels of hearsay contained in police reports without cross-examination of the preparer of the reports, prior testimony without first letting the parties know what testimony might be used, and using ‘reasonable wonder’ as sufficient evidence to base a permanent restraining order without being able to cross examine the ‘wonderer,’ amounts to a fundamentally unfair hearing and requires reversal.”
Appointed counsel for the children contends that the juvenile court met the due process requirements for issuing a restraining order, that the court did not rely on impermissible hearsay, and that substantial evidence supports the court’s findings and order. The Department has not filed a response brief.
“[A] restraining order issued in a juvenile dependency proceeding is directly appeal able to the same extent as a restraining order granted in a civil action. [Citations.]” (In re Cassandra B. (2004) 125 Cal.App.4th 199, 208 (Cassandra B.).) When an appellant challenges “the sufficiency of the evidence, 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. [Citation.]” (Id. at pp. 210-211; see also In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
As with any decision regarding an injunction, the decision whether to grant or deny a restraining order under section 213.5 “ ‘ “rests in the sound discretion of the trial court upon a consideration of all the particular circumstances of each individual case” ’ and ‘will not be modified or dissolved on appeal except for an abuse of discretion.’ [Citations.]” (Salazar v. Eastin (1995) 9 Cal.4th 836, 850.) “ ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ [Citations.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
“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.” (Cassandra B., supra, 125 Cal.App.4th at p. 211.) An application may be submitted “in the manner provided by Section 527 of the Code of Civil Procedure,” and a temporary order may be filed ex parte “until the time that the petition is dismissed or dependency is terminated.” (§ 213.5, subd. (a); see also Cal. Rules of Court rules 5.630(a) & (f).) Section 213.5 does not contain any specific requirements for the issuance of a temporary restraining order, stating only that the court may enjoin “any person from behavior, including contacting, threatening, or disturbing the peace” of the children and the children’s caregivers as “necessary.” (§ 213.5, subd. (a); see also Rule 5.630(e)(3).) “In determining whether or not to issue the temporary restraining order ex parte, the court must consider all documents submitted with the application and may review the contents of the juvenile court file regarding the child.” (Rule 5.630(f)(1).)
“A preliminary injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefor.” (Code Civ. Proc., § 527, subd. (a).) “This section does not apply to an order issued under the Family Code.” (Id., subd. (g).)
All further rule references are to the California Rules of Court.
“The juvenile court may issue, upon notice and a hearing, any of the orders set forth in subdivision[] (a), . . . Any restraining order granted pursuant to this subdivision shall remain in effect, in the discretion of the court, no more than three years, . . .” (§ 213.5, subd. (d); see also Rule 5.630(h).) “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).)
In this case, both parents were given notice and a hearing on the children’s application for a restraining order. They were also provided copies of the application and its attachments. Although father contends that no allegations were made against him in the application, the attachments to the application stated that the foster mother had been harassed by mother, and that both mother and father have called the foster family’s residence. The hearing on the restraining order was held on February 23, 2007, six weeks after parents were provided copies of the application in open court on January 10, 2007, and seven weeks after their counsel was provided a copy by father’s criminal defense attorney. At the February 23, 2007 hearing, the court properly considered the attachments and the transcript of the May 24, 2006 hearing. (Rule 5.630(h)(2).)
Both parents were also provided ample opportunity to present evidence contradicting the information in the attachments to the application. Although parents claim that they were denied the opportunity to cross-examine the hearsay declarations, they had amply opportunity to subpoena the sheriff’s deputies whose reports were attached to the application in order to cross-examine them at the hearing. They were also provided an opportunity by the court to present additional declarations, documentary evidence, and testimony at the hearing, and both father and mother did testify. And, although there is no indication that a search described in Family Code section 6306 was conducted before the hearing as required by section 213.5, subdivision (k), the record before the court indicated that father had criminal charges pending but there was no claim that either parent had outstanding warrants or was on probation or parole. (See § 213.5, subd. (k)(3).) The “ ‘hearing was appropriate to the nature of the case.’ [Citation.]” (In re James Q. (2000) 81 Cal.App.4th 255, 265.) We find no denial of parents’ procedural due process rights here and, as they previously had their parental rights to T. and guardianship of Ke. terminated, parents had no substantive due process right to free association with the children or to maintain a relationship with them. (Cf. In re Marilyn H. (1993) 5 Cal.4th 295, 306-307.)
“(1) Prior to a hearing on the issuance or denial of an order under this part, a search shall be conducted as described in subdivision (a) of Section 6306 of the Family Code. [¶] (2) Prior to deciding whether to issue an order under this part, the court shall consider the following information obtained pursuant to a search conducted under paragraph (1): any conviction for a violent felony specified in Section 667.5 of the Penal Code or a serious felony specified in Section 1192.7 of the Penal Code; any misdemeanor conviction involving domestic violence, weapons, or other violence; any outstanding warrant; parole or probation status; any prior restraining order; and any violation of a prior restraining order.” (§ 213.5, subd. (k).)
We also find that substantial evidence supports the restraining order. The juvenile court file indicated that the children were removed from mother and father’s care because of father’s sexual abuse of other children in the family and mother’s failure to protect them. Mother and father’s parental rights to T. and guardianship of Ke. had been terminated prior to the application for the restraining order. T. had reported that she was extremely fearful of harm if the children were returned to parents’ care. There were credible reports and concerns that mother had plotted to kidnap Ke., and father testified that he knew that his mother had taken the earlier report seriously. In addition, the foster mother reported that mother had harassed her and that both mother and father had telephoned the foster family’s residence. Section 213.5 does not require that the court find that there is a threat of imminent danger, harassment, or abuse before it may issue a restraining order. Mother and father live within 100 yards of the children, so the court specifically provided that the stay away order did not apply to normal ingress and egress to their home. On this record, we cannot say that the juvenile court abused its discretion in granting the children’s application for the restraining order.
DISPOSITION
The order is affirmed.
WE CONCUR: MIHARA, J., MCADAMS, J.