In re C.M.

Filed 9/15/17

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re C.M., a Person Coming Under the
Juvenile Court Law.
D072056
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
(Super. Ct. No. CJ1349)
v.
E.S.,
Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Laura J.

Birkmeyer, Judge. Reversed.

Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and

Appellant.

Thomas E. Montgomery, County Counsel, John E. Phillips, Chief Deputy County

Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.

At a special hearing, the juvenile court issued a permanent restraining order

prohibiting the child's stepfather from having any contact with the child. (Welf. & Inst.
Code, § 213.5.)1 The child's mother, E.S., appeals from an order of the juvenile court

issued at the same hearing, directing the San Diego County Health and Human Services

Agency (Agency) to immediately remove her child from her care if there is "any

evidence that the minor has been exposed to [his stepfather] or if mother violates the

restraining order." We reverse the order.

FACTUAL AND PROCEDURAL BACKGROUND

C.M., who is now eight years old, is the son of E.S. and C.M., Sr.2 In January

2016, E.S. married K.K. E.S. knew that K.K. had a history of domestic violence in

another relationship and had completed a domestic violence treatment program. During

the first year of their marriage, there were four incidents of domestic violence between

E.S. and K.K. During one of those incidents, K.K. hit E.S. in the face, giving her two

black eyes. C.M. was present during another incident.

On January 7, 2017, K.K. pushed E.S. and hit her in the face, sprayed bleach on

C.M., poured bleach on a pile of their clothes, and threw a bottle of bleach at E.S. E.S.

locked herself and C.M. in the bathroom, and telephoned the police. Police officers

arrested K.K. Officers reported E.S. had minor bruising on her cheek. There were

visible signs of a struggle in the home. Paintings had fallen off the wall. There was a

clear liquid that smelled like bleach outside the bathroom where E.S. and C.M. had been

1 Further unspecified statutory references are to the Welfare and Institutions Code.
2 After the jurisdictional and dispositional hearings, the Agency located C.M., Sr.,
in another state.
2
hiding. C.M. said his stepfather had punched him in the stomach on several occasions,

and once on his back. E.S. was not present when K.K. hit him.

On January 17, 2017, the Agency filed a two-count petition alleging seven-year-

old C.M. had suffered, or was at substantial risk of suffering, serious physical harm or

illness as a result of physical abuse by his stepfather K.K., domestic violence between

E.S. and K.K., and E.S.'s failure or inability to adequately protect C.M. (§ 300,

subd. (b).)

In an interview with a social worker, when asked about the white spots that were

all over his pants and shirt, C.M. said K.K. sprayed bleach on him. C.M. mimed the use

of a spray bottle. He said the bleach "touched my eyes and it started to burn." K.K. also

poured bleach on a pile of C.M.'s and E.S.'s clothes. C.M. did not see his stepfather hit

his mother but heard him yelling at her. C.M. said he felt safe in the home "but only with

my mom." His stepfather would "get in my mom's face and yell at her and me." When

C.M. heard fighting sounds that scared him, he would stay in his room. He was scared

when he saw bruises on his mother's arms.

E.S. said K.K. complained she did not pay attention to the family and intentionally

broke her fan on the evening of January 6. When K.K. became angry, he destroyed her

property. He previously had destroyed five other fans and her phone. K.K. grabbed her

by the arms and held her down on the bed. C.M. was in his bedroom during this

altercation. The next day, K.K. took her food stamp card to buy food for a party with his

friends. E.S. started throwing the party food in the trash. K.K. hit her on the side of her

face. He then obtained a knife and tried to cut her shoe with it. K.K. poured bleach on a

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pile of her clothes. Her eyes were burning. E.S. did not know whether K.K. sprayed

bleach directly at C.M. She felt badly about the incident because it scared her son.

After his arrest, K.K. returned home. E.S. was reluctant to leave. She was a stay-

at-home wife and mother, and just had learned she was two months pregnant. The social

worker explained to E.S. that she had failed to protect C.M. by remaining in an abusive

relationship. After discussing the issue for six hours, E.S. agreed to leave the home. She

and C.M. moved in with relatives. E.S. said she did not want her son to feel scared or be

at any risk of harm, and she planned to divorce K.K. She changed C.M.'s school because

his old school was close to K.K.'s home and she did not want her son to feel scared.

At the detention hearing, the juvenile court detained C.M. with E.S. on condition

she reside with a family member or in a domestic violence shelter, enroll in a domestic

violence prevention program, obtain counseling for C.M., not use corporal punishment to

discipline C.M., and to comply with all court orders. The court issued a temporary

restraining order protecting C.M. from K.K. The minute order states: "If mother violates

the conditions of detention, the minor is to be removed from her care."

The jurisdictional and dispositional hearing was held on February 8. The social

worker said C.M. was happy in his mother's care and liked being with his family. The

maternal relatives provided a strong safety network. E.S. was abiding by the temporary

restraining order and had not permitted K.K. to have any contact with C.M.

The court found that C.M.'s placement with his mother would not be detrimental

to him provided she complied with the conditions set by the court. These conditions

included compliance with the case plan, not allowing the stepfather to have any contact

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with C.M., not violating the restraining order, meeting C.M.'s educational, medical,

dental and service needs, and making C.M. available to minor's counsel or investigator.

The court ordered the Agency to immediately set a special hearing if E.S. disengaged in

services. The court set a special hearing on issuing a permanent restraining order.3

On March 3, at the hearing on the restraining order, E.S. acknowledged she and

K.K. had engaged in physical altercations. She denied he ever hit C.M. in the stomach.

She acknowledged K.K. had destroyed her property, including six fans, a television and a

cell phone. He tried to cut her shoe with a "skinny kitchen knife" but did not damage the

shoe. During the January 7 incident, she and C.M. had to sit in some of the bleach and

their eyes were burning. C.M.'s clothes were spotted with bleach because E.S. touched

him when they moved to the bathroom.

E.S. testified she never sought a restraining order against K.K. because he did not

pose a threat to her. E.S. believed C.M. was safe in K.K.'s presence. She planned to stay

married to K.K., but not if it meant C.M. could be removed from her care. C.M. was

always excited to see K.K. They enjoyed sports, wrestling and bike riding together.

They had a happy relationship.

3 Under section 213.5, the juvenile court has exclusive jurisdiction to issue an ex
parte restraining order to protect the child from any person. (§ 213.5, subd. (a).) Upon
notice and a hearing, the juvenile court generally can extend a restraining order for no
more than three years. (§ 213.5, subd. (d)(1).) A hearing under section 213.5 may be
held simultaneously with any regularly scheduled hearings to declare the child a
dependent child, or subsequent hearings regarding the dependent child. (§ 213.5,
subd. (c)(5).) An order after hearing must be prepared on Restraining Order—Juvenile
(form JV-255). (Cal. Rules of Court,3 rules 5.620(b), 5.630(f)(2).)
5
 The social worker testified when she interviewed C.M. on January 31, C.M. was

afraid of his stepfather. C.M. felt safe at his relatives' houses and was happy his mom

was there. In describing the January 7 incident, C.M. said he was in his room and heard

yelling and screaming and things being thrown around. His mother called him and they

went into the bathroom. K.K. sprayed them with bleach. The social worker expressed

doubts about E.S.'s ability to protect C.M. from his stepfather. She recommend the court

issue a permanent restraining order prohibiting K.K. from having any contact with C.M.

K.K. denied ever physically abusing C.M. C.M. called him "Pops." He

considered himself to be C.M.'s father. C.M. did not witness the confrontation between

him and E.S. on January 7. K.K. completed a 52-week domestic violence program after a

domestic violence incident in January 2011.

The court found, by clear and convincing evidence, there was domestic violence

between K.K. and E.S. in C.M.'s presence. C.M. was clearly impacted by the significant

and escalating violence in the home, including the use of bleach, which has the capacity

to permanently maim and injure a person. K.K. used a knife during the confrontation.

E.S. minimized his use of a weapon. The court was concerned because K.K. had

completed a 52-week domestic violence treatment program and was still engaging in

violent activity.

The court issued a permanent restraining order without prejudice, stating it would

reconsider its order if E.S. and K.K. mitigated the risk to C.M. through services. The

court said, "I do want to make it perfectly clear to the mother and all family members that

they must enforce this order. You cannot cause [K.K.] to violate the order, and you must

6
be protective of [C.M.]. [¶] I am directing the Agency, if they receive evidence that

[C.M.] has been exposed to [K.K.], and mother has permitted [K.K.] to violate the order,

or put [C.M.] in a circumstance where [K.K.] has violated the order, you are to

immediately remove him from her care and put the matter back on immediately in this

courtroom. [¶] I consider the risk to be very, very high." The court said C.M. would be

immediately removed from the mother and it might affect the relatives' ability to serve as

caregivers or visit C.M.

The minute order states: "If the Agency receives any evidence that the minor has

been exposed to [K.K.] or if mother violates the restraining order, the minor is to be

immediately removed from mother's care and this matter is to be put back on calendar

immediately."4

DISCUSSION

A

THE PARTIES' ARGUMENTS

Characterizing the conditional removal order as a portion of the restraining order,

E.S. contends she did not receive notice she would be a restrained party, and therefore the

written minute order is constitutionally and statutorily invalid. She argues the juvenile

court abused its discretion in altering the procedures and evidentiary standards for

removal of C.M. from her care. In so arguing, E.S. assumes the conditional removal

order is an order for removal under section 361, subdivision (c), which requires the court

4 For convenience, we refer to the court's order as the "conditional removal order."
7
to find, by clear and convincing evidence, there is, or would be, a substantial danger to

the physical health, safety, protection, or physical or emotional well-being of the child,

and there are no reasonable means by which the child's physical health can be protected

without removing the child from the parent (detriment finding).

The Agency contends the appeal does not present a justiciable issue and E.S. has

forfeited her claims of error by failing to object at trial. On the merits, the Agency

characterizes the conditional removal order as a "detention warning." The Agency argues

the order was lawfully issued pursuant to the court's authority to impose conditions on

C.M.'s placement with his mother under sections 361, subdivision (a)(1) and 362,

subdivision (a), and therefore the court is not required to make a detriment finding to

effect removal. The Agency asserts the juvenile court did not abuse its discretion in

issuing the order (or, alternatively, any error was harmless) in view of the extreme risk of

harm K.K. posed to C.M.

B

RIPENESS

The Agency contends the appeal should be dismissed because the issue is not ripe

for review. "[T]he ripeness requirement prevents courts from issuing purely advisory

opinions, or considering a hypothetical state of facts to give general guidance rather than

to resolve a specific legal dispute." (Hunt v. Superior Court (1999) 21 Cal.4th 984, 998

(Hunt).) The Agency argues it is purely hypothetical to assume C.M. will be detained

prior to any hearing to assess the risk to him in his mother's care, and asserts E.S.'s due

process rights would be abridged only if C.M. were in fact illegally detained.

8
 E.S. states her appeal is directed at the terms of a restraining order under section

213.5. She contends a challenge to a restraining order issued in a juvenile dependency

proceeding is "subject to review on direct appeal from the order granting the restraining

order." (In re Cassandra B. (2004) 125 Cal.App.4th 199, 208.)

The Agency's argument about ripeness is based on its characterization of the

court's removal order as a "detention warning" and the implicit suggestion the Agency

would follow its usual procedures in assessing risk to a child. The plain terms of the

court's conditional removal order require the Agency to remove C.M. from his home on

"any evidence" of exposure to his stepfather or violation of the restraining order by his

mother. The order requires no further judicial finding. "The fact that a judgment is

conditional does not prevent it from being a final, appealable judgment if, so far as the

condition is concerned, the order is self-executing and requires no further judicial act."

(Taper v. City of Long Beach (1982) 129 Cal.App.3d 590, 606.)

Further, the requirement for ripeness does not prevent a reviewing court from

resolving a concrete dispute if the consequence of a deferred decision is lingering

uncertainty and additional, lengthy appellate proceedings. (Hunt, supra, 21 Cal.4th at

pp. 998-999.) Here, removal of the child from his home on "any evidence" of exposure

to his stepfather or violation of the restraining order would result in additional, lengthy

appellate proceedings. Accordingly, the issue whether the court's order is valid is ripe for

review.

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 C

FORFEITURE

"A party forfeits the right to claim error as grounds for reversal on appeal when he

or she fails to raise the objection in the trial court. [Citations.] Forfeiture, also referred to

as 'waiver,' applies in juvenile dependency litigation and is intended to prevent a party

from standing by silently until the conclusion of the proceedings." (In re Dakota H.

(2005) 132 Cal.App.4th 212, 221 (Dakota H.).) A party may not assert theories on

appeal which were not raised in the trial court. (Fretland v. County of Humboldt (1999)

69 Cal.App.4th 1478, 1489.)

E.S. acknowledges she did not raise in the trial court her assertions the conditional

removal order violated her due process rights and did not comport with the statutory

scheme. She argues she may raise a new theory on appeal because the controversies

present a pure issue of law. (See Dakota H., supra, 132 Cal.App.4th at pp. 221-222.)

Application of the forfeiture rule is not automatic. (In re S.B. (2004) 32 Cal.4th

1287, 1293.) The appellate court's discretion to excuse forfeiture should be exercised

rarely and only in cases presenting an important legal issue. (Ibid.) In dependency cases,

because the proceedings involve the well-being of children, considerations such as

permanency and stability are of paramount importance. (Ibid.) Here, the juvenile court

applied a different standard and burden of proof, thus altering the statutory framework

that governs detention or removal of a dependent child under the California dependency

scheme. There is no dispute about the standards and procedures that were employed by

the court. When the facts are not disputed, the effect or legal significance of those facts

10
is a question of law. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799.) "Further, the

lack of adherence to the California dependency scheme may have adverse implications

for the child's permanency and stability, which are of paramount importance, and the

parent's interest in the child, which is fundamental." (In re Nickolas T. (2013) 217

Cal.App.4th 1492, 1501.) We therefore exercise our discretion to consider the issues

raised in the appeal.

Because the question is one of law, we review the claimed error de novo.

(Dakota H., supra, 132 Cal.App.4th at p. 222.)

D

THE CONDITIONAL REMOVAL ORDER

1. The Parties' Arguments

E.S. contends the conditional removal order is an order for removal under section

361, subdivision (c). Section 361, subdivision (c) provides a dependent child shall not be

taken from the physical custody of his or her parents unless the juvenile court finds clear

and convincing evidence there is or would be a substantial danger to the physical health,

safety, protection, or physical or emotional well-being of the child in the parent's care,

and there are no reasonable means by which the child's physical health can be protected

without removing the child from the parent's physical custody. E.S. argues the

conditional removal order changes the legal standards for removal.

The Agency argues the conditional removal order is a detention warning. The

Agency acknowledges the juvenile court generally should not assess risk prospectively,

and the better approach is to allow the social worker to assess the risk of imminent harm

11
and bring the case before the juvenile court for a detention hearing and further

proceedings under sections 300 or 387. Nevertheless, the Agency argues because the

juvenile court reasonably determined that C.M. would be at immediate risk of harm if

exposed to K.K., the conditional removal order is valid under the court's authority to

make reasonable orders for the care, supervision and custody of a dependent child (§ 362,

subd. (a)), including limiting the parent's exercise of control over the child by a parent

(§ 361, subd. (a)).

2. The Juvenile Court May Only Direct the Agency to
Take Such Immediate Action as is Authorized By Law and Fact

The Legislature has vested the juvenile court with the authority to fashion orders

concerning the welfare of a dependent child. (Nickolas F. v. Superior Court (2006) 144

Cal.App.4th 92, 111 (Nickolas F.).) "The juvenile court has a special responsibility to the

child as parens patriae and must look to the totality of a child's circumstances when

making decisions regarding the child." (In re Chantal S. (1996) 13 Cal.4th 196, 201.)

"Within its limited jurisdiction, the authority of the juvenile court is extensive."

(Nickolas F., supra, at p. 111, citing § 245.5 [the juvenile court may direct all such orders

to the parents of a dependent child as the court deems necessary and proper for the best

interests of the child].)

This broad general grant of authority to the juvenile court to fashion orders

concerning the child's welfare is tempered by more specific statutes. (Nickolas F., supra,

144 Cal.App.4th at p. 111.) For example, although sections 245.5 and 361, subdivision

(a) authorize the juvenile court to limit the control to be exercised over a dependent child

12
by a parent, those "limitations may not exceed those necessary to protect the child."

(§ 361, subd. (a).) As relevant to the issues raised in this appeal, the Legislature has

enacted specific statutes governing the removal of the child from his or her home.

A social worker has the authority to detain a child in protective custody if there is

reasonable cause to believe the child is in imminent danger of physical or sexual abuse or

the physical environment poses an immediate threat to the child's health or safety.

(§§ 305, subd. (a), 306, subd. (a)(2).) Before taking a minor into custody, the Legislature

directs the social worker to consider whether the child can remain safely in his or her

residence. The consideration of whether the child can remain safely at home shall

include, but is not limited to, whether there are any reasonable services available to the

worker which, if provided to the minor's parent, would eliminate the need to remove the

minor from the custody of his or her parent. (§ 306, subd. (b).)

Section 309 also imposes duties on a social worker. It provides when a child has

been temporarily detained, "the social worker shall immediately investigate the

circumstances of the child and the facts surrounding the child's being taken into custody

and attempt to maintain the child with the child's family through the provision of

services. The social worker shall immediately release the child to the custody of the

child's parent, guardian, or responsible relative, . . . unless one or more of the following

conditions exist: [¶] . . . [¶] (2) Continued detention of the child is a matter of immediate

and urgent necessity for the protection of the child and there are no reasonable means by

which the child can be protected in his or her home or the home of a responsible

relative." (§ 309, subd. (a)(2).)

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 With respect to a dependent child who remains in the care of a parent, the

Legislature directs that an order changing or modifying a previous order by removing a

child from the physical custody of a parent shall be made only after noticed hearing upon

a supplemental petition. (§ 387, subd. (a).) The supplemental petition shall be filed by

the social worker in the original matter and shall contain a concise statement of facts

sufficient to support the conclusion that the previous disposition has not been effective in

the rehabilitation or protection of the child. (§ 387, subd. (b).) The matter must be set for

hearing within 30 days. (§ 387, subd. (d).) An order for the detention of the child

pending adjudication of the petition may be made only after a hearing. (§ 387, subd. (e);

see §§ 305, 306, 309, 319.)

"The standard for removal on a supplemental petition is the same as removal on an

original petition: the agency must show by 'clear and convincing evidence . . . [t]here is a

substantial danger to the physical health, safety, protection, or physical or emotional

well-being of the minor' if left in parental custody 'and there are no reasonable means by

which the minor's physical health can be protected without removing the minor from

[parental] physical custody.' " (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th

1067, 1077 (Kimberly R.).)

The statutes authorizing temporary detention and removal of the child from the

parent's custody and control are "demanding substantive and procedural requirements . . .

carefully calculated to constrain judicial discretion, diminish the risk of erroneous

findings of parental inadequacy and detriment to the child, and otherwise protect the

legitimate interests of the parents." (Cf. Cynthia D. v. Superior Court (1993) 5 Cal.4th

14
242, 256 [discussing termination of parental rights].) The conditional removal order in

this case alters those substantive and procedural requirements.

As the parties' arguments indicate, the wording of the conditional removal order is

ambiguous. We need not resolve the ambiguity here. At the outset, we may eliminate

the idea that any exposure to K.K. by itself will justify [C.M.'s] removal from the home.

"Violations of court orders are not to be encouraged and violators may be appropriately

punished. Taking away one's children is not an appropriate punishment." (In re W.O.

(1979) 88 Cal.App.3d 906, 910.)

To the extent the order is an order for immediate temporary detention of the child,

the conditional removal order encroaches on the Legislature's specific directive to the

social worker to assess the risk to the child in the home, and disregards the factual

findings necessary for protective detention. To detain a child in protective custody, the

focus must be exclusively on the question whether the child is in imminent danger of

physical or sexual abuse or the physical environment poses an immediate threat to the

child's health or safety. (§§ 305, subd. (a), 306, subd. (a)(2).)

To the extent the order purports to remove the care, custody, and control of a

dependent child from the child's parent and place it with the court, the proper inquiry is

whether there is clear and convincing evidence of a substantial danger to the child's

physical health, safety, protection, or physical or emotional well-being in parental

custody and there are no reasonable means by which the minor's physical health can be

protected without removing the child from his home. (In re Paul E., supra, 39

Cal.App.4th at pp. 1003-1004.) The conditional removal order thus contravenes specific

15
statutory requirements for notice and the opportunity to be heard (§§ 387, 290.1), the

burden and standard of proof (§ 361, subd. (c)(1)), and the factual findings required to

remove a dependent child from the custody of his or her parent. (Ibid.; § 387;

Kimberly R., supra, 96 Cal.App.4th at p. 1077.)

While we appreciate the juvenile court's assessment of the need to warn E.S. in no

uncertain terms there may be serious consequences if C.M. has any contact with K.K., we

must conclude that the court erred when it issued a conditional removal order. Removal,

including a temporary detention, must be made on a timely assessment of risk to the

child. (§§ 305, subd. (a), 306, subd. (a)(2), 361, subd. (c)(1).) Here, the court may have

informed E.S. about the potential legal consequences of exposing C.M. to K.K., including

removal from her custody and termination of parental rights. The court may have

directed the Agency to immediately bring to its attention any evidence of contact between

C.M. and K.K., and to set a hearing to address the issue. However, the conditional

removal order disregards the dependency scheme, which is carefully calculated, not only

to protect the child, but also to guarantee procedural and substantive due process to the

child and the parent.5

5 Because we reverse the order on these grounds, we need not address the other
issues appellant raises on appeal.
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 DISPOSITION

The conditional removal order is reversed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

DATO, J.

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