Opinion
B318299
01-19-2023
In re C.A., a Person Coming Under the Juvenile Court Law. v. M.W., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Interim County Counsel, Kim Nemoy, Assistant County Counsel, Peter Ferrera, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 20CCJP06842, Hernan D. Vera, Judge. Affirmed.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy, Assistant County Counsel, Peter Ferrera, Deputy County Counsel for Plaintiff and Respondent.
EDMON, P. J.
M.W. (mother) appeals from a three-year restraining order protecting her daughter C., C.'s prospective adoptive parents, and members of their household. The juvenile court issued the restraining order after finding that mother violated a temporary restraining order (TRO) protecting the same individuals. Mother contends the TRO was invalid because it was issued without notice to her; accordingly, she urges, her alleged violation of the TRO was not a proper basis for issuing the three-year restraining order. We conclude that the juvenile court did not err in issuing the three-year restraining order, and thus we will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Prior proceedings.
Our prior opinion in this matter contains a detailed summary of this dependency proceeding, which we will not repeat here. (In re C.A. (Mar. 15, 2022, B314450) [nonpub. opn.].) In brief, C. was born in March 2019 and was detained from her parents in September 2019 after mother was placed on an involuntary psychiatric hold. In November 2020, C. was placed with her maternal great aunt and uncle, Mr. and Mrs. B., who are her prospective adoptive parents.
Mother's family reunification services were terminated in April 2021. The following month, her visits with C. were curtailed when, after being advised that the location of her visit with C. had to be changed because the monitor had car trouble, mother drove to the B.'s home, banged on their doors, and yelled. She then went around to the back fence and reached into the backyard yelling, "Give me my baby" and" 'I'ma f*ck you up.'" Mother left only when the B.'s called law enforcement.
Parental rights were terminated in August 2021. Mother appealed from the order terminating parental rights; we affirmed.
II. Juvenile court's issuance of restraining orders protecting C. and her caregivers from mother.
A. Temporary restraining order.
C.'s attorney filed a request for a temporary restraining order protecting C., the B.'s, the B.'s daughter, and Mrs. B.'s mother on November 16, 2021. The request stated as follows:
"On or about October 21, 2021, the mother . . . called the caretaker, [Mrs. B.], and noted that the minor belongs to mother and will be out of the caretaker's home real soon.
"On or about October 28, 2021 the mother called the caretaker twice and noted that she will continue to reach out for her daughter. Mother also indicated that she has no doubt she will get the minor back. Mother noted that no law can take the minor away.
"On November [2], 2021, the mother showed up at the caretakers' residence and began to scream for the minor. The mother was banging on the window and the doors. The mother approached [Mr. B.] and noted that he already has three children and to give her the minor. The mother refused to leave and the caretakers were forced to call the police." Attached to the TRO request was a police report from the November 2, 2021 incident.
The juvenile court granted a TRO on November 18, 2021. Mother was not present at the hearing. The TRO ordered mother to stay more than 100 yards from, and refrain from contacting, C., her caregivers, their daughter, and Mrs. B.'s mother. The court set a subsequent hearing for December 10, 2021, and ordered mother to be served with notice of that hearing at least five days prior.
B. Permanent restraining order.
The juvenile court held a hearing on the request for a permanent restraining order on December 10, 2021. DCFS and C. were represented by counsel; mother appeared on her own behalf.
Mrs. B. testified that in the month prior to November 2, 2021, she received "constant phone calls, constant text messages" from mother, threatening," 'This is not going to end well for you. You're evil. God is going to destroy you.' Just all kinds of threats, 'This is not going to end well for you. This is going to be bad for you. You've stolen my baby.' Things of that nature." Mother told Mrs. B. that "no judge, no police officer, no social worker, no lawyer is going to keep her away. That only God can keep her away, and that she was going to continue to not listen and call and text and come by." Mrs. B. said she blocked several of mother's phone numbers, but mother would call from other numbers or have other people call for her. Mrs. B. repeatedly asked mother to stop call calling and texting, but mother responded that she did not care about social workers or judges because, "They're not my rulers. You're crooked. They're crooked. I'm not going to stop."
On one particular morning, mother called Mrs. B. "yelling [and] screaming" at about 5 a.m. After Mrs. B. hung up, mother called back from the same phone number 139 times.
On November 2, 2021, mother came to the caregivers' home, "ambushed" the care provider for Mrs. B.'s elderly mother, and said, "Give me my baby, I want my baby." Mrs. B. asked mother to leave. Instead, mother banged on the windows and doors of the caregivers' home and screamed that she wanted her baby. Mother did not leave until the police arrived about a half an hour later.
Mrs. B. testified that after the TRO was issued, she told mother about the order and emailed and texted her a copy. Mother responded that "she didn't care [because] no judge, no lawyer[] is going to get her. God is going to destroy us. She's going to pray us away."
Mother addressed the court, saying she had not been able to reply to the petition because she was not properly served. Minor's counsel responded that mother was personally served on December 1, 2021, as indicated on the proof of service. Mother initially said she was in Nigeria on December 1, but when the court asked whether she would like to be sworn and make that statement under oath, mother said she "wo[uld]n't contest" the proof of service. The court therefore found that mother had received proper notice of the issuance of the TRO.
The proof of service was not included in the appellate record.
Mother does not contest this finding on appeal.
The court then permitted mother to testify. Mother denied threatening the B.'s and said she had a legitimate purpose to contact Mrs. B., who had "discretion to allow me to visit with my daughter." Mother denied saying she would take her daughter or that no judge could stop her.
After hearing argument, the court granted a three-year restraining order, finding that mother had contacted the B.'s after having been ordered not to do so. Mother timely appealed from the December 10, 2021 restraining order.
DISCUSSION
Mother contends the TRO was invalid because it was issued without proper notice, and the three-year restraining order was issued in error because its sole basis was mother's violation of the invalid TRO. For the reasons that follow, we disagree and affirm.
I. Relevant law.
Welfare and Institutions Code section 213.5 governs the issuance of restraining orders by a juvenile court. Pursuant to section 213.5, subdivision (a), the juvenile court may issue an order that, among other things, enjoins any person "from molesting, attacking, striking, stalking, threatening, . . . battering, harassing, telephoning, . . . contacting, . . . coming within a specified distance of, or disturbing the peace of" a dependent child, her caregivers, and any other child in the household, "upon application in the manner provided by Section 527 of the Code of Civil Procedure."
All subsequent undesignated statutory references are to the Welfare and Institutions Code.
Code of Civil Procedure section 527, subdivision (c), provides that a temporary restraining order shall not be granted without notice to the opposing party unless both of the following requirements are satisfied:
"(1) It appears from facts shown by affidavit or by the verified complaint that great or irreparable injury will result to the applicant before the matter can be heard on notice.
"(2) The applicant or the applicant's attorney certifies one of the following to the court under oath:
"(A) That within a reasonable time prior to the application the applicant informed the opposing party or the opposing party's attorney at what time and where the application would be made.
"(B) That the applicant in good faith attempted but was unable to inform the opposing party and the opposing party's attorney, specifying the efforts made to contact them.
"(C) That for reasons specified the applicant should not be required to so inform the opposing party or the opposing party's attorney."
If a temporary restraining order is granted without notice, the court shall hold a subsequent hearing as early as possible, but not later than 25 days from the date the temporary restraining order is granted. (§ 213.5, subd. (c)(1).)
In In re E.F. (2020) 11 Cal.5th 320, 331, our Supreme Court held that a TRO application under section 213.5 "must satisfy the procedural requirements of Code of Civil Procedure section 527. This means that an applicant who seeks the issuance of a TRO without notice must show 'great or irreparable injury' justifying the absence of notice (Code Civ. Proc., § 527, subd. (c)(1)), as well as a good faith effort to inform, or reasons why no effort need be made to inform, the opposing party when and where the application would be made (id., subd. (c)(2))." If the party seeking the TRO neither provides notice nor makes a showing of justification for lack of notice, the juvenile court must provide the party against whom the TRO is sought "sufficient time to prepare and respond before any TRO may issue." (In re E.F., at p. 331.)
II. Analysis.
Under the standards articulated in In re E.F., the juvenile court erred by issuing the TRO without notice to mother because minor's counsel did not make a showing of justification for lack of notice. Thus, had mother appealed from the TRO, we would have been compelled to reverse. (See In re E.F., supra, 11 Cal.5th at p. 331 [reversing judgment affirming issuance of a TRO].) However, mother's appeal is from the three-year restraining order, not the TRO, and thus the question for us is whether the juvenile court's error in issuing the TRO so infected the subsequent restraining order as to requires its reversal.
We conclude that it does not. Preliminarily, we note that mother did not make in the trial court the contention she makes here--that she was not required to comply with the terms of the TRO because it was issued without notice. Accordingly, the contention is forfeited. (E.g., Aljabban v. Fontana Indoor Swap Meet, Inc. (2020) 54 Cal.App.5th 482, 512 ["' "An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method"' "]; Baxter v. State Teachers' Retirement System (2017) 18 Cal.App.5th 340, 378 [same].)
In any event, as DCFS correctly notes, the lack of notice made the TRO voidable, not void, and thus mother was required to comply with it unless and until it was set aside. An order or judgment is void only if the court rendering it" 'lacked subject matter jurisdiction or jurisdiction over the parties.'" (Proctor v. Vishay Intertechnology, Inc. (2013) 213 Cal.App.4th 1258, 1269; see also Ironridge Global IV, Ltd. v. ScripsAmerica, Inc. (2015) 238 Cal.App.4th 259, 267 ["A judgment is void when there is a lack of jurisdiction over the subject matter or the person"].) In contrast, an order or judgment is merely voidable "when the trial court has subject matter and personal jurisdiction, but 'exceeds its jurisdiction' because it '" 'has no "jurisdiction" (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.'" '" (Ironridge, at p. 267; see also Proctor, at p. 1269 [a judicial act in excess of fundamental jurisdiction is not void, but only voidable].) A voidable order or judgment "is presumed valid until it is set aside." (Ironridge, at p. 267.)
The distinction between void and voidable acts is dispositive of this appeal. There is no dispute that the juvenile court had jurisdiction over mother by virtue of her appearance in the dependency action (e.g., In re A.J. (2022) 77 Cal.App.5th 7, 14; In re Daniel S. (2004) 115 Cal.App.4th 903, 916), and that it had authority pursuant to section 213.5 to issue a restraining order to protect C., her caregivers, and other members of the household. Mother therefore was required to comply with the terms of the TRO unless and until it was set aside by the juvenile court or reversed on appeal. Mother did not appeal from the TRO, which has long since become final, and she did not ask the juvenile court to set it aside. Accordingly, mother's failure to comply with the terms of the TRO was a proper basis for the issuance of the three-year restraining order.
Finally, although not necessary to the disposition of this appeal, we note that there was abundant evidence supporting the grant of the three-year restraining order. As other courts have noted, "while evidence the restrained person has previously stalked, attacked, or inflicted physical harm on the protected child 'is certainly sufficient' to justify issuance of a restraining order under section 213.5, issuance of a restraining order does not require such evidence. [Citations.] Nor does it require evidence of a reasonable apprehension of future physical abuse. [Citations.] There need only be evidence that the restrained person 'disturbed the peace' of the protected child." (In re Bruno M. (2018) 28 Cal.App.5th 990, 997, second italics added; see also In re S.G. (2021) 71 Cal.App.5th 654, 671 [juvenile court may issue restraining order under section 213.5 if the restrained person engaged in conduct that destroyed the petitioner's" '" 'mental or emotional calm'"' "].)
Here, there was evidence before the juvenile court that mother repeatedly disturbed the peace of C. and her caregivers by coming to their house uninvited, banging on their doors and windows, and shouting. There also was evidence from which the juvenile court could reasonably have concluded that mother intended to try to kidnap C.-namely, her statements to Mrs. B. that no one would keep her from C., and her demands that the B.'s "[g]ive" her C. For all of these reasons, the juvenile court did not err in issuing the December 10, 2021 restraining order.
DISPOSITION
The December 10, 2021 restraining order is affirmed.
We concur: EGERTON, J., NGUYEN (KIM), J. [*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.