Opinion
G045329 Consol. with G045344 Super. Ct. No. DP020931
12-09-2011
In re CHARITY H. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. STACY H., Defendant and Appellant.
Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant. Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from an order of the Superior Court of Orange County, Dennis J. Keough, Judge. Affirmed.
Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minors.
INTRODUCTION
This is but one of the numerous appeals filed by Stacy H., the mother of twins Charity and Joseph, who were born in February, 2011. Orange County Social Services Agency (SSA) detained the twins shortly after their birth
On May 31, 2011, the juvenile court issued a restraining order against Stacy, requiring her to stay away from the children and their father, who had been given custody of them at a disposition hearing on May 12. The restraining order also denied Stacy any visitation with the twins.
Stacy now appeals from the restraining order. We affirm.
FACTS
Joseph and Charity were born in late February, 2011. SSA immediately detained them after being called to the hospital by staff members who were alarmed by Stacy's bizarre behavior both before and after delivery. They were placed at Boys Town, where they stayed until the jurisdiction and disposition hearing, which took place between May 10 and May 12, 2011. At that time, the court granted Aaron H., the twins' father, presumed father status and gave him custody, subject to department supervision.The court also ordered Stacy to submit to psychological and psychiatric evaluations and suspended Stacy's visitation, pending the outcome of the evaluations, based on a finding of detriment to the children if Stacy visited them with her mental health issues unresolved. The court set a hearing in mid-July to review the evaluation/visitation issue.
Although both Aaron's and Stacy's surnames start with the same initial, they have different surnames and were never married.
Before the May 12 order, Stacy had been allowed two monitored two-hour visits per week.
The day before the trial ended, Stacy appeared at Aaron's house at 10:00 p.m. while the twins were visiting overnight. Aaron's mother called the police and had Stacy removed. As a result, Aaron applied for a temporary restraining order (TRO). The court granted the TRO application and set a hearing date on the restraining order for May 31. The court signed and filed the TRO papers the next day. Notwithstanding the TRO, granted on May 12 in her presence, Stacy continued to harass Aaron. She called the police on May 13 and reported that Aaron had "stolen" her children. The police went to Aaron's home, and Aaron had to show them a letter from the social worker to confirm his right to have the twins. On May 14, Stacy showed up at Aaron's home and refused to leave. When she did it again on May 23, she was arrested.
Stacy characterizes the request for TRO as an "oral request," made at the hearing on May 12. This is incorrect. Aaron filed a written application on May 12, the last day of the jurisdiction and disposition hearing.
At the hearing on May 31, the court granted a three-year, no contact restraining order, which required Stacy to stay 100 yards away from Aaron, the children, his residence, his place of employment, and his vehicle. The order continued the suspension of visitation that had already been imposed at the May 12 disposition hearing. Stacy has appealed from this order.
DISCUSSION
This appeal deals with a single issue: the propriety of the restraining order issued against Stacy on May 31, 2011. Stacy asserts that she did not receive adequate notice of the TRO that preceded the restraining order. She also asserts that court abused its discretion because it did not consider the likelihood Aaron would prevail on the merits or the relative harm to her and to Aaron, and because the three-year period was excessive. She finally asserts the court's finding of detriment to the children, supporting the denial of visitation in the restraining order, was inadequate.
Stacy's opening brief identifies one other issue, the court's refusal on July 19, 2011, to appoint new counsel for her. This issue is moot; the court appointed new counsel for Stacy on August 11, 2011. (See In re A.Z. (2010) 190 Cal.App.4th 1177, 1180.)
We review the issuance of a restraining order for abuse of discretion. (Salazar v. Eastin (1995) 9 Cal.4th 836, 850; see also Welf. & Inst. Code, § 213.5, subd. (d).) "'"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.) We review a challenge to the sufficiency of the evidence to support a restraining order in juvenile dependency hearings for substantial evidence. If substantial evidence supports the order, we do not disturb it. (In re Cassandra B. (2004) 125 Cal.App.4th 199, 210-211.)
All further statutory references are to the Welfare and Institutions Code.
I. Notice of the TRO/Substantial Evidence
Although it is not entirely clear, Stacy appears to be arguing the restraining order must be vacated because it was based on a lone incident - her arrest on May 23 for violating the TRO. But, according to Stacy, she never received notice of the TRO. She does not exactly make this argument, but it seems the conclusion we are supposed to draw is that she did not violate the TRO (because she could not violate an order of which she had no notice), and therefore the restraining order lacked evidentiary support.
Whether Stacy received notice of the terms of the TRO is uncertain; the order itself recites that she received notice and that she was present when the order was granted. The reporter's transcript, however, does not reflect any recitation of the order's specific terms in open court; this omission, of course, does not preclude the possibility that Stacy received a copy of the application and reviewed it with her counsel off the record.
Her counsel also argued against granting the TRO during the jurisdiction portion of the hearing, suggesting that she, at least, had a copy of the application.
Regardless of whether Stacy received adequate notice of the TRO, her argument is without merit. The court did not base its decision to grant the three-year restraining order on one incident. On the contrary, the court had an extensive body of evidence about Stacy's conduct with respect to the children and Aaron. For example, there was no dispute that Stacy showed up at Aaron's house on May 11 - prompting Aaron to seek a TRO in the first place - and had to be removed by the police. Stacy also had a habit of phoning Aaron or appearing at his house asking him to marry her and go away together with the children. Episodes taking place during her visitation between March and May also suggested that she might try to abduct the children, and she had a previous conviction for child stealing in defiance of a court order. The court based its order on all of this evidence, plus Stacy's own behavior at three days of hearings in May.
Section 213.5 permits the juvenile court to issue an order prohibiting any person from stalking a dependent child and stalking or disturbing the peace of the child's parent or caretaker. (§ 213.5, subd. (a), (d).) Accordingly, evidence that the restrained person has previously stalked or disturbed the peace is sufficient. (See In re B.S. (2009) 172 Cal.App.4th 183, 193.) The court had evidence Stacy had regularly phoned Aaron and appeared at his house before the disposition hearing and she had appeared at his house at least three times within ten days after the TRO was granted, while the children were present in his home. Substantial evidence supported the juvenile court's decision to issue the restraining order.
Whether Stacy's conduct on May 23, when she was arrested at Aaron's house, amounted to a violation of the TRO is not the issue. She had no business being there at all, especially when the children were present and she knew her visitation rights had been suspended. The restraining order cannot be vacated on grounds of lack of substantial evidence.
II. Success on the Merits and Balance of Harm
Stacy argues that the juvenile court must consider two factors before it issues a restraining order - the likelihood of success on the merits and the balance of harm between the parties. She asserts the court failed to apply this test, and the failure is grounds for reversal.
Likelihood of success on the merits and the balance of harm is indeed the test for issuing a preliminary injunction in an ordinary civil case, but this test has no bearing here. The purpose of a preliminary injunction in an ordinary civil action is to preserve the status quo until there can be a trial on the merits. (California State University, Hayward v. National Collegiate Athletic Association (1975) 47 Cal.App.3d 533, 543.) In dependency proceedings, however, once the court has determined it has jurisdiction, there is no "trial" on the "merits," only a succession of orders designed to protect the child and put him or her into a stable, safe, and permanent home - with the parents if possible, but with somebody else if the parents are not up to the job. (See In re Marilyn H. (1993) 5 Cal.4th 295, 307-309.) In dependency proceedings, the status quo is precisely what the courts do not want preserved.
The status quo in this case was Stacy phoning Aaron or showing up at Aaron's home, unannounced and uninvited, and pestering him to marry her and take the children away or otherwise making a nuisance of herself. The court was well within the bounds of its discretion in ordering this activity to stop. It was not required to determine probable success on the merits or weigh the balance of harm between Stacy and Aaron.
III. Length of the Restraining Order
Stacy also argues the court issued the order for too long a period - three years. She acknowledges the statutory authority for an order of this length. (§ 213.5, subd. (d).) Nevertheless, she argues the order is an abuse of discretion because it will prevent her from visiting her children for three years, ultimately prejudicing her ability to get them back, as she will not be able to maintain regular visitation and contact with them. (See § 366.26, subd. (c)(1)(B)(i).)
Although the restraining order presently prevents Stacy from visiting, the court can easily modify it once Stacy complies with the conditions set out at the disposition hearing on May 12, namely, psychological and psychiatric evaluations. If the court determines Stacy can safely visit the children, it will order visitation to resume, and the restraining order will presumably be modified accordingly. The court set a hearing date in mid-July to review Stacy's progress with her evaluations and to reassess the visitation issue.
The juvenile court form for a restraining order has a section that can be checked to allow visitation.
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The restraining order is designed to protect the children and Aaron from harassment while Stacy is not visiting the children. She must stay away from Aaron's home, his person, and so on, and she will not be able to make surprise visits to the children, as she has a history of doing. If and when she qualifies to resume visitation, it will presumably take place somewhere other than Aaron's home and without his presence. The court can be counted upon to arrange visitation that does not violate a restraining order.
It is up to Stacy to decide whether she will seek treatment for her obvious mental disorders and conform to the other conditions the court has imposed before she can resume visitation. If she fails to do so, she, not the restraining order, will be responsible for her lack of a relationship with her children.
IV. Prohibition against Visitation
The restraining order prohibits Stacy from visiting the children. This aspect of the order must be read in conjunction with a previous order - the disposition order issued on May 12, 2011 - which temporarily suspended Stacy's visitation pending mental health evaluations. The restraining order simply conforms to or confirms a prior order of the court.
Stacy argues there was no showing of detriment made at the May 31 hearing to support the ban on visitation in the restraining order. Stacy is mistaken. The court based the restraining order on the same evidence that supported its suspension of visitation at the disposition hearing. It would have been anomalous indeed if, less than three weeks after ordering visitation suspended as detrimental to the children, the court had permitted visitation under the restraining order, especially in light of the evidence that Stacy was still behaving erratically. The court did not abuse its discretion in continuing the previous order suspending visitation.
DISPOSITION
The restraining order is affirmed. Stacy's appeal from the order denying her motion to appoint new counsel is dismissed as moot.
BEDSWORTH, ACTING P. J.
WE CONCUR:
FYBEL, J.
IKOLA, J.