In re J.B. CA4/1

Filed 7/14/21 In re J.B. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re J.B., a Person Coming Under the
Juvenile Court Law.

SAN DIEGO COUNTY HEALTH D078241
AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent, (Super. Ct. No. EJ03281F)

v.

M.S. et al.,

Defendants and Appellants.

APPEALS from an order of the Superior Court of San Diego County,
Gary M. Bubis, Judge. Affirmed in part, reversed in part.
Annie Greenleaf, under appointment by the Court of Appeal, for
Defendant and Appellant M.S.
Neale B. Gold, under appointment by the Court of Appeal, for
Defendant and Appellant C.B.
Office of County Counsel, Caitlin E. Rae, Chief Deputy County Counsel,
and Emily Harlan, Deputy County Counsel, for Plaintiff and Respondent
 I
INTRODUCTION
This is the second appeal arising from dependency proceedings for
minor J.B. (Minor). In the case of In re S.S. (Apr. 23, 2021, D077787
[nonpub. opn.]), we affirmed an order terminating the parental rights of C.B.
(Father) and M.S. (Mother) and approving a plan of adoption for Minor.
Thereafter, the juvenile court denied a request by Minor’s caregivers for a
permanent restraining order against both Father and Mother because the
court determined the caregivers had not shown an immediate threat or recent
pattern of conduct to justify a restraining order. Nevertheless, the court
ordered there be no contact between Minor and the biological parents.
Father and Mother appeal the order contending the court violated their civil
liberties by issuing an indefinite no-contact order with the minor without
statutory authority or due process. We agree and, therefore, reverse the no-
contact portion of the order. We affirm the order insofar as it denied the
caregivers’ request for a permanent restraining order.
II

BACKGROUND1
A. Dependency Proceeding
Minor and Mother’s older children were removed from Mother and
Father shortly after Minor was born in 2018 based on concerns of substance
abuse and mental health issues for both parents, a relationship between the
parents marked by domestic violence, and concerns about a gambling
addiction by Father, all of which impacted the parents’ ability to provide safe

1 Because a detailed factual background is not pertinent to the issues in
this appeal, we provide only a general description of the dependency
proceedings as drawn from our prior opinion, In re S.S. (Apr. 23, 2021,
D077787 [nonpub. opn.]).

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and stable care for Minor.2 (In re S.S., supra, D077787.) Father and Mother
did not meet their reunification service goals over an extended period. Both
parents denied or minimized the issues that brought Minor into dependency.
(In re S.S., supra, D077787.)
In January 2020, the court found by clear and convincing evidence that
the return of Minor to the parents’ custody would create a substantial risk of
detriment to Minor’s physical or emotional well-being. The court further
concluded that even though the parents had made some progress with their
case plan, there was not a substantial probability Minor could be returned to
the physical custody of the parents within 18 months (which had already
expired). The court terminated reunification services for Mother and Father
and set a hearing for a permanent plan for Minor. (In re S.S., supra,
D077787.) In August 2020, the court terminated Mother’s and Father’s
parental rights and found adoption was in the best interest of Minor and the
preferred permanent plan. (In re S.S., supra, D077787.)
B. Requests for Restraining Orders
On August 7, 2020, the same day of the contested section 366.26
hearing, Minor’s caregivers filed requests for restraining orders against
Father and Mother asking that they be ordered to stay 100 yards away from
Minor, caregivers, and their nanny. In a statement supporting the requests,
the caregivers said both parents had restraining orders placed against them
in the past, that Father and Mother had sent messages through third parties
demanding the return of Minor, and Father sent text messages stating he
intended to take Minor and the other children out of state. The caregivers

2 Mother’s older children were previously removed in 2013 in another
county due to domestic violence between Mother and her former husband.
Mother reunified with the children in 2015. (In re S.S., supra, D077787.)

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expressed concern about the parents’ history of violence and that the parents
would harm the caregivers, forcibly take the child from their care, and leave
the state.
Father’s appointed counsel opposed the request saying the court did not
have jurisdiction over Father after terminating his parental rights. Counsel
expressed concern that Father would not have representation or an
opportunity to make changes to the order later in the juvenile court, which
would be a violation of due process. Counsel indicated the caregivers could
seek a civil restraining order. Mother’s counsel joined in these arguments.
Retained counsel for the caregivers expressed concern that a civil court could
not include Minor in a restraining order because the juvenile court had
jurisdiction over the child as a dependent. Minor’s counsel stated he was not
opposed to a restraining order and would submit to the court’s determination
of whether such an order was appropriate. The court set the matter for a
special hearing.
At the next hearing on August 12, 2020, the court issued a temporary
restraining order. Minor’s counsel supported the issuance of a temporary
restraining order, but indicated they would evaluate whether to support a
permanent restraining order or allow peaceful contact with the child. Father
left the virtual proceeding before the court signed the temporary restraining
order, but he was represented by appointed counsel.
At a hearing on September 4, 2020, retained counsel for the caregivers
stated they were not successful in serving the restraining order. The court
stated the biological parents were deemed served because they were present
telephonically. Father said he had not been given notice and wanted a
continuance. The court agreed to continue the hearing and asked if Father
intended to hire a lawyer. Father said he would “possibly” hire a lawyer. He

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opposed the permanent restraining order and indicated he would like to call
witnesses. The court advised him to hire a lawyer as soon as possible.
Father and Mother appeared by telephone at the next hearing on
September 24, 2020. Father said he “didn’t really receive paperwork to
notice -- to see what they are actually accusing me of . . . .” The court offered
to send the moving papers to him by e-mail and to grant a continuance.
However, Father said, “I don’t really see a reason to continue it because there
doesn’t seem like there is any type of evidence to show that I’ve done
anything, because I haven’t done anything.” The court told Father that he
would hear testimonial evidence in support of the request for the restraining
order and Father would be able to ask the witnesses questions. After Father
agreed to the procedure, the court said, “So then, I believe, we can go forward,
there is no objection.”
Caregiver A.B. testified in support of the request by her and her
husband for a restraining order against Father and Mother. She stated
Father had stalked people who had active restraining orders against him and
he has acted erratically and out of control around her in the past. She said
Father claimed the caregivers “paid off judges and CPS . . . to steal his child.”
A.B. said Father and Mother had stalked the caregivers “a few times in
December of 2019” and in October of 2019 when they followed the caregivers
and Minor on Halloween. They went trick-or-treating at local businesses on a
main street and went to dinner with the grandparents. Father stood on the
sidewalk near the restaurant and stared at them.
The caregivers saw a vehicle they believed Father owned driving past
their house “frequently since the last .26 hearing.” Two weeks before the
September 24, 2020 hearing, someone fitting Father’s description was seen

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driving toward the caregivers’ home. A.B. said there is no reason to come to
the neighborhood other than to visit someone’s home.
The caregivers were concerned about Father becoming obsessive and
flying off the handle. A.B. said Father used to tell them he was going to find
his ex-wife and do things to violate the restraining order she had against
him.
A.B. also mentioned an altercation in which Father punched his own
father (A.B.’s father-in-law and Minor’s grandfather) during an argument
about Minor and the other children being placed in the grandparents’ home.

A.B. said the grandfather sustained a black eye and a broken tooth.3 Minor
was moved from the grandparents’ home after the altercation and was placed
in nine homes within a year. The caregivers did not want the parents to have
access to Minor such that they could jeopardize the child’s placement.
A.B. also expressed concern about a statement Father made to his
mother about getting the kids and leaving the state. Father sent a text
message to the grandmother within the first six months that Minor was
placed with the caregivers saying that he planned to get all the kids and get
out of state. There were no similar threats of kidnapping in the six months
before the hearing.
The caregivers did not receive direct threats from Father, but he posted
statements on social media about not messing with him or his family. Father
stopped a family friend and said the caregivers stole his child and asked the
friend to tell the caregivers to give the child back.

3 In May 2019, a verbal argument between Father, Mother and Father’s
parents escalated into a physical altercation. The sheriff’s deputy who
responded to the call described the incident as “mutual combat” between the
four adults. Minor and the other children were removed from placement with
Father’s parents after this incident. (In re S.S., supra, D077787.)

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 A.B. said Mother was also involved in the altercation with Minor’s
grandparents and was violent with the grandmother during that incident.
She also described a situation when Minor became upset during a visit and
wanted to go home. Mother became angry and “got in the face” of the worker
who tried to console the child. Mother was upset because Minor called the
caregivers dad and mom. The caregivers were called to console the child and
help Minor return to the visit. However, the visitation supervisor did not
allow them to go into the building because he was concerned Mother would
cause a confrontation.
A.B. expressed concern that Mother would act unpredictably if she saw
the child or the child’s nanny in the community. They wanted to make sure
Minor was safe from any acts of violence or a potential kidnapping.
On Father’s cross-examination, A.B. agreed she did not witness the
altercation with the grandparents and only heard the grandparents’ account
of the incident. A.B. agreed she had not seen Mother or Father drive past
their house in the eight months prior to the hearing, although she had seen a
truck in recent weeks that she believed was owned by Father. A.B. also
admitted she had not received any phone calls or threats from Mother or
Father and neither parent had shown any violent behavior toward A.B. A.B.
admitted neither Father nor Mother ever said anything directly to her to put
her in fear for herself or her family. In the prior six months, neither Father
nor Mother did anything to cause A.B. to fear for herself.
A.B.’s husband, caregiver Ja.B., testified that they wanted restraining
orders to make sure Minor is safe going forward and to “prevent anything
that would ever happen or occur to harm him or anybody in [their] family.”
Based on Father’s social media post, the caregivers felt he looked at them as
the problem or the enemy and Ja.B. did not know what to expect in the

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future. Ja.B. did not have confrontations with the Father in the prior six
months other than asking him to put a mask on for a visit with the child. At
one point Father told Ja.B. to stay away from the visit when the Minor
appeared unsure, but Ja.B. was not offended by that statement.
A truck that looked like Father’s truck drove by their home and parked
150 feet past their home. They were concerned about Minor being out in the
community with the nanny. Ja.B. said it was an unpredictable situation and
they did not want any altercations or negative interactions around the child.
A social worker testified the caregivers expressed fear of the biological
parents based on Father’s relationship history and their belief he was driving
past their home. They were concerned they could be attacked like the
grandparents were attacked. On Father’s cross-examination, the social
worker admitted she was not the social worker at the time of the altercation
with the grandparents and had not seen a recording of the incident.
The social worker witnessed an incident at a visitation when Mother
became agitated. However, she could not say that a physical altercation
would have occurred if A.B. had entered the visitation room. The social
worker could not answer yes or no to whether a restraining order was a good
idea to protect Minor in his placement.
Father testified he sold his truck. He also testified he worked a few
houses down from the caregivers’ home in January of 2020, but had not
worked in the neighborhood since then.
Mother testified the restraining order was not merited because she has
accepted the fact that her children are not coming home. She stated she is
devastated and emotionally distraught, but is seeking healing and going
through a grieving process. She believes she is at the acceptance phase of
that process and has no ill will toward the caregivers. She wished them the

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best. She stated she wanted to live in peace and was moving on with her life.
She said she did not want contact with the family.
Minor’s counsel asked no questions and submitted on the evidence
presented.
The court reviewed the civil harassment statute, Code of Civil
Procedure section 527.6 and the Family Code. The court denied the request
for a permanent restraining order, stating there was no immediate threat or
recent pattern of conduct.
The court, however, ordered “no contact” between Minor and the
biological parents, stating this direction would be part of the minute order,
but would not be “in any kind of a system.” The court cautioned the parents
that if the caregivers brought in proof of harassment or stalking, he would
grant a restraining order “in a New York minute.” However, the court said if
“everybody just leaves everybody alone,” there would not be any more
problems.
III
DISCUSSION
Mother and Father contend there was no substantial evidence to
support the court’s no-contact order with the Minor, the court exceeded its
jurisdiction, and the court violated their constitutional rights by ordering “no
contact” with Minor for an indefinite period with inadequate notice or due
process. The San Diego County Health and Human Services Agency
submitted a letter taking no position on the appellants’ contentions with
respect to the juvenile court’s order and indicated the caregivers or the Minor
should retain appellate counsel. No briefs were submitted on behalf of either
the caregivers or Minor.

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 In juvenile dependency proceedings, until the time a petition is

dismissed or dependency is terminated, Welfare and Institutions Code4
section 213.5, subdivision (a) gives the juvenile court exclusive jurisdiction to
issue ex parte orders enjoining, in pertinent part, “any person from
molesting, attacking, striking, stalking, threatening, . . . , harassing,
telephoning, . . . contacting, either directly or indirectly, . . . coming within a
specified distance of, or disturbing the peace of the child . . . .” and “excluding
any person from the dwelling of the person who has care, custody, and control
of the child.” The juvenile court may issue similar orders protecting a parent,
legal guardian, or caretaker of the child under this section. (Ibid.; Cal. Rules
of Court, rule 5.630.) Restraining orders under this section are made “upon
application in the manner provided by” Code of Civil Procedure section 527 or
Family Code section 6300 (Welf. & Inst. Code, § 213.5, subds. (a)), must state
a date of expiration (id., § 213.5, subd. (f)), and may remain in effect “no more
than three years, unless otherwise terminated by the court, extended by
mutual consent of all parties to the restraining order, or extended by further

order of the court on the motion of any party to the restraining order.”5 (Id.,
§ 213.5, subd. (d)(1); In re Jonathan V. (2018) 19 Cal.App.5th 236, 241-242.)

4 Further statutory references are to the Welfare and Institutions Code
unless otherwise stated.
5 One of the Legislature’s purposes in cross-referencing statutes
involving civil restraining orders and domestic violence restraining orders,
was to “ ‘create greater consistency’ between different statutes governing
protective orders.” (Priscila N. v. Leonardo G. (2017) 17 Cal.App.5th 1208,
1214, citing Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1596 (2009-
2010 Reg. Sess.) p. 13.)

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 Under Code of Civil Procedure section 527.6, subdivisions (i) and (j)(1),
a court may, after notice and a hearing, issue an order prohibiting
harassment if it finds by clear and convincing evidence that unlawful
harassment exists. The Family Code allows a court to issue an emergency
protective order “only if the judicial officer finds both of the following: [¶]
(a) That reasonable grounds have been asserted to believe that an immediate
and present danger of domestic violence exists, that a child is in immediate
and present danger of abuse or abduction, or that an elder or dependent adult
is in immediate and present danger of abuse as defined in Section 15610.07 of
the Welfare and Institutions Code. [¶] (b) That an emergency protective
order is necessary to prevent the occurrence or recurrence of domestic
violence, child abuse, child abduction, or abuse of an elder or dependent
adult.” (Fam. Code, § 6251, see also Fam. Code, § 6250.)
Under these statutes, the juvenile court had jurisdiction to issue orders
protecting Minor and the caregivers from the biological parents even though
their parental rights were terminated, if there was a sufficient basis for such
an order. (See In re Brittany K. (2005) 127 Cal.App.4th 1497, 1508-1509,
1512 [juvenile court properly issued restraining order against grandmother].)
However, after considering the evidence presented, the court determined
there was not clear and convincing evidence to support a formal restraining
order against Father and Mother as requested. The court stated, “The fact of
the matter is they haven’t done anything . . . recently enough that qualifies
under either the civil harassment or the Family Code sections, so I can’t
grant it.” The court noted the parents’ history could justify the caregivers’
generalized feelings of fear, but said speculation and “feelings alone [are] not
enough” to grant a restraining order. We conclude substantial evidence

11
supported the court’s factual findings and the denial of the requests for
protective orders. (In re N.L. (2015) 236 Cal.App.4th 1460, 1466.)
However, the court went further and ordered “no contact” between
Minor and the biological parents. For the same reasons that there were no
factual bases to issue the requested restraining orders, there were no factual
bases for the no-contact orders with Minor. There was no evidence Minor’s
physical or emotional safety would be in jeopardy absent a restraining order
or other form of no-contact order. (Compare In re N.L., supra, 236
Cal.App.4th at pp. 1467-1468, citing In re C.Q. (2013) 219 Cal.App.4th 355,
363 [error to include minor in restraining order when mother held
educational rights], with In re A.M. (2019) 37 Cal.App.5th 614, 619
[restraining order necessary to ensure minor’s safety from father who
sexually abused child].)
Further, the general “no contact” order for an indefinite period did not
give fair notice to the biological parents of the scope and duration of the
order. (See In re Sheena K. (2007) 40 Cal.4th 875, 890; see also Camacho v.
Camacho (1985) 173 Cal.App.3d 214, 221.) This contrasts with statutory
provisions for restraining orders, which set time limits. (Welf. & Inst. Code,
§ 213.5, subd. (d)(1) [three years]; Code Civ. Proc., § 527.6, subd. (j)(1) [five
years]; Pen. Code, § 136.2, subd. (i)(1) [10 years].) In this case, the child is
placed with paternal relatives and there may come a time when one or both
biological parents could reconcile with the family and the Minor may wish to
have some contact with them without violating the juvenile court’s order.
“An existing body of statutory law regulates restraining orders.
‘ “[I]nherent powers should never be exercised in such a manner as to nullify
existing legislation . . . .” ’ [Citation, italics omitted.] Where the Legislature
authorizes a specific variety of available procedures, the courts should use

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them and should normally refrain from exercising their inherent powers to
invent alternatives.” (People v. Ponce (2009) 173 Cal.App.4th 378, 384.)
“[E]ven where a court has inherent authority over an area where the
Legislature has not acted, this does not authorize its issuing orders against
defendants by fiat or without any valid showing to justify the need for the
order.” (Ibid.)
“ ‘[T]he use of no-contact orders must be reserved . . . for rare and
compelling circumstances . . . .’ ” (People v. Ponce, supra, 173 Cal.App.4th at
p. 385.) No such compelling circumstance is present here. Although the
court’s advice that there would be no more problems “if everybody just leaves
everybody alone” is manifestly sound, it does not justify a non-specific no-
contact order for an indefinite period of time with no evidentiary basis. As
such, we reverse the “no contact” portion of the order.
As the juvenile court also noted, a restraining order does not provide a
“bulletproof golden seal to keep people from doing bad things[.]” However,
the biological parents are on notice that should the caregivers provide
evidence that the biological parents are engaging in harassing or stalking
behavior, the court is willing and able to issue a restraining order.
Because we reverse the portion of the order prohibiting the biological
parents from having any contact with Minor, we need not reach the
constitutional issues pertaining to notice and representation.

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 DISPOSITION
The portion of the September 24, 2020 order ordering no contact
between Minor and the biological parents is reversed. In all other respects,
the order is affirmed.

O’ROURKE, J.

WE CONCUR:

HALLER, Acting P. J.

DATO, J.

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