Filed 2/14/24
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re H.D. et al., Persons Coming D082615
Under the Juvenile Court Law.
_____________________________________
SAN DIEGO COUNTY HEALTH (Super. Ct. No. NJ13950B-C)
AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
E.V.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Nadia J. Keilani, Judge. Affirmed.
Paul A. Swiller, under appointment by the Court of Appeal, for
Defendant and Appellant.
Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy
County Counsel, and Kristen M. Ojeil, Deputy County Counsel, for Plaintiff
and Respondent.
Neale B. Gold, under appointment by the Court of Appeal, for Minor
A.D.
This juvenile dependency appeal by E.V. (Mother) presents a question
of statutory interpretation—whether the juvenile court had the authority to
issue a temporary restraining order (TRO) and permanent restraining order
under Welfare and Institutions Code section 213.5 which, when read in
conjunction with section 311, suggests such authority is limited to
dependency petitions filed by a probation officer rather than petitions filed by
a social worker under section 300. We reject this interpretation because
review of the statutory scheme shows that, in this context, probation officers
are the same as social workers. We thus affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2020, a social worker with the San Diego County Health and Human
Services Agency (Agency) filed petitions on behalf of then 14-year-old H.D.
and 10-year-old A.D. and the juvenile court removed them from Mother’s
custody due to her drug use which contributed to an inadequate home
environment and neglect of their basic needs. In 2022, the juvenile court
ordered a permanent plan of legal guardianship for H.D. and terminated
jurisdiction. It terminated Mother’s parental rights and ordered adoption for
A.D.
In May 2023, A.D. filed an ex parte request for a TRO against Mother.
The juvenile court granted the request and set a noticed hearing for a
permanent injunction that could last up to three years. Mother appeared at
the hearing with counsel who argued: Mother “would like to request that the
restraining order be dismissed. She has no desire to have any further contact
with the parties in this litigation. That is all. Thank you.” The juvenile
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court entered a permanent restraining order protecting A.D. from Mother for
a three-year period.
DISCUSSION
Mother contends the juvenile court lacked authority under
section 213.5 to issue the TRO and the permanent restraining order because
the plain language of section 213.5 provides, when read in conjunction with
section 311, that the juvenile court has the power to issue a restraining order
protecting a child only when a probation officer takes the child into protective
custody and files a dependency petition. Subdivision (a) of section 213.5
provides in relevant part:
After a petition has been filed pursuant to Section 311 to
declare a child a dependent child of the juvenile court, and
until the time that the petition is dismissed or dependency
is terminated, upon application in the manner provided by
Section 527 of the Code of Civil Procedure . . ., the juvenile
court has exclusive jurisdiction to issue ex parte orders . . .
enjoining a person from[, among other things,] molesting,
attacking, striking, stalking, threatening, sexually
assaulting, [or] battering [a child.] (Italics added.)
Subdivision (a) of section 311 provides:
If the probation officer determines that the minor shall be
retained in custody, he or she shall immediately file a
petition pursuant to Section 332[1] with the clerk of the
juvenile court who shall set the matter for hearing on the
detention hearing calendar. (Italics added.)
1 The petition is the basic pleading device in dependency proceedings to
assert a child falls within the juvenile court’s jurisdiction. (In re Jessica C.
(2001) 93 Cal.App.4th 1027, 1035.) Section 332 specifies the required
contents for an original petition to commence proceedings in the juvenile
court to declare a child a dependent child of the court.
3
Mother argues that “section 213.5 directs the reader to section 311, and
the latter explicitly limits its application to those petitions filed by a
probation officer rather than petitions filed by a social worker under
section 300. That other courts have allowed restraining orders filed under
section 213.5 to reach a child – while mostly, if not totally, ignoring the issue
raised in [her] brief – is not justification that this Court has the authority to
do so, nor is it justification that those other courts had such authority when
they addressed restraining orders without discussing the instant problem.
[¶] Had the Legislature intended that section 213.5 apply to petitions filed
by social workers under section 300, it could easily have said so.” The Agency
and A.D. (respondents) contend Mother forfeited this issue by failing to raise
it in the juvenile court. Should we conclude Mother preserved this issue,
respondents assert the juvenile court had ample authority to issue the orders.
“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.” (In re
Dakota H. (2005) 132 Cal.App.4th 212, 221.) “Forfeiture … applies in
juvenile dependency litigation and is intended to prevent a party from
standing by silently until the conclusion of the proceedings.” (Id. at p. 222.)
Application of the forfeiture rule is not automatic, and a reviewing court has
discretion to consider forfeited claims. (In re S.B. (2004) 32 Cal.4th 1287,
1293, superseded on other grounds by statute as stated in In re M.R. (2005)
132 Cal.App.4th 269, 273–274.) But the “discretion to excuse forfeiture
should be exercised rarely and only in cases presenting an important legal
issue.” (In re S.B., at p. 1293.) Additionally, we may consider forfeited claims
concerning statutory interpretation that do not involve disputed facts as such
a claim could reoccur. (See In re Jonathan P. (2014) 226 Cal.App.4th 1240,
4
1252 [addressing forfeited statutory argument that presented a legal
question].)
Mother forfeited her legal issue because she did not argue against the
order or claim the juvenile court lacked authority to issue it; rather, she
argued the order was not necessary and should be dismissed. To avoid
forfeiture, Mother contends this case presents an important legal issue and
we should exercise our discretion to address it. The Agency concedes the
issue presented is a pure question of law where we can properly exercise our
discretion to consider the forfeited claim. Nonetheless, it argues we should
not exercise such discretion here. We will exercise our discretion to reach the
forfeited issue because it involves an important legal issue of statutory
interpretation that could reoccur.
We review statutory interpretation issues de novo. (Ventura County
Deputy Sheriffs’ Association v. County of Ventura (2021) 61 Cal.App.5th 585,
590.) We begin our analysis with the “ ‘ “actual words of [section 213.5],”
“giving them a plain and commonsense meaning . . . .” ’ ” (Mikkelsen v.
Hansen (2019) 31 Cal.App.5th 170, 178.) Nonetheless, “we consider portions
of a statute in the context of the entire statute and the statutory scheme of
which it is a part.” (Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063.)
Applying these rules here, we agree with Mother that the language of
section 213.5 is unambiguous and suggests, when read in conjunction with
section 311, that the authority to issue a restraining order under
section 213.5 applies only to those petitions filed by a probation officer rather
than petitions filed by a social worker under section 300. However, we
disagree with her conclusion because it ignores the entire statutory scheme.
As one court explained:
The duties to furnish child welfare services and to provide
reports and recommendations to the juvenile court are
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actually placed by statute upon “the social worker.” The
juvenile court law originally called for various tasks to be
performed by the probation officer. [Citation.] Later, the
Legislature authorized each county board of supervisors to
delegate the duties of the probation officer under the juvenile
dependency laws to the county welfare department.
[Citations.] Now, by statute, each county’s welfare
department is required to have a specialized unit for the
administration of child welfare services. [Citations.] And
most provisions of the juvenile dependency law have been
changed so that the term “probation officer” is replaced by
“social worker.” [Citation.] The terms are now deemed
interchangeable. [Citation.] The term “social worker”
within the juvenile dependency law obviously means the
county’s social services agency to which the duties formerly
assigned to the probation officer have been delegated.
(In re Ashley M. (2003) 114 Cal.App.4th 1, 8, italics added.)
The Legislature authorized the delegation of duties from probation
officers to social workers for dependent children described in former
section 600 (now section 300)2 via former section 576.5.3 On July 18, 1972,
based on the authority provided in former section 576.5, the San Diego
County Board of Supervisors (the Board) passed resolution No. 16
transferring responsibilities related to dependent children described in
former section 600 from the probation department to the San Diego County
Welfare Department. (See Res. No. 16.)
2 In 1976, the Legislature repealed former section 600 and enacted
section 300 to govern dependent children. (Stats. 1976, ch. 1068, §§ 6, 20;
In re A.A. (2016) 243 Cal.App.4th 1220, 1237, fn. 6.)
3 Former section 576.5 provided: “The board of supervisors may delegate
to the county welfare department all or part of the duty of the probation
officer concerning dependent children described in Section 600.” (Stats. 1968,
ch. 115, § 1.)
6
Thereafter, in 1976 the Legislature repealed former section 576.5
(Stats. 1976, ch. 1068, § 18) and enacted section 272 which also authorized
the delegation of duties from probation officers to social workers for
dependent children described in former section 600, now section 300.
(Stats. 1976, ch. 1068, § 5.) Section 272 provides, in part: “The board of
supervisors may delegate to the county welfare department all or part of the
duties of the probation officer concerning dependent children described in
Section 300.” (§ 272, subd. (a)(1).)4 On August 15, 1978, the Board passed
another resolution delegating to the San Diego County Department of Public
Welfare all the duties of the probation officer of the County of San Diego
concerning dependent children described in section 300, except for the
operation of Hillcrest Receiving Home. (See Res. No. 33.)
Through these delegations of authority, the term “probation officer” in
section 311 is equivalent to the term “social worker” in juvenile dependency
cases.5 Accordingly, in San Diego County and other counties where a
delegation of duties has been approved, the juvenile court’s authority to issue
4 Additionally, under section 215, “the term ‘probation officer’ . . . shall
include . . . any social worker in a county welfare department . . . .” (Citing
§ 272.) The California Rules of Court also provide that, in dependency
proceedings, a “probation officer” includes a social worker in the county
agency responsible for the administration of child welfare, and a “social
worker” includes a probation officer performing child welfare duties. (Cal.
Rules of Court, rule 5.502(31) & (39).)
5 The California Rules of Court also note this delegation of authority.
Rule 5.630(a)(1) provides that after a petition has been filed under
section 300 the juvenile court may issue restraining orders as provided in
section 213.5. (See also rule 5.620(b) [“After a petition has been filed under
section 300, . . . the court may issue restraining orders as provided in rule
5.630.”].)
7
a restraining order under section 213.5 applies to petitions filed by social
workers under section 300.6 Thus, the juvenile court did not err when it
issued the TRO and the permanent restraining order against Mother.7
DISPOSITION
The order is affirmed.
CASTILLO, J.
WE CONCUR:
BUCHANAN, Acting P. J.
RUBIN, J.
6 Another appellate court recently came to the same conclusion, rejecting
a literal reading of section 213.5 because: (1) it would lead to an absurd
result; (2) the citation to section 311 was likely a drafting error; (3) and the
dependency statutes as a whole support the conclusion that a juvenile court
has the authority to issue restraining orders protecting the dependent
children in cases where the social worker filed the petition. (In re Lilianna C.
(Feb. 8, 2024, B324755) ––– Cal.App.5th ––– [2024 Cal. App. Lexis 81, at
pp. *9–*12.)
7 Even if section 213.5 did not apply, juvenile courts have wide discretion
to issue orders directed to the parent of a dependent child that it “deems
necessary and proper for the best interests of . . . the minor.” (§ 245.5.)
8