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In Re M.B., A Person Coming Under the Juvenile Court Law. v. S.O

December 12, 2011

IN RE M.B., A PERSON COMING UNDER THE JUVENILE COURT LAW. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, PLAINTIFF AND RESPONDENT,
v.
S.O., DEFENDANT AND APPELLANT.



APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill, Judge. Affirmed. (Super.Ct.No. J231187)

The opinion of the court was delivered by: Richli J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

OPINION

M.B. (the child), the infant son of S.O. (the mother), was detained, declared a dependent, and placed in foster care. Over the course of the dependency, the mother repeatedly yelled and cursed at employees of the county department of Children and Family Services (the Department), including not only social workers, but also security guards and receptionists. She tied up the Department's phone lines with harassing and hang-up calls. She also threatened employees of the Department; eventually, she pleaded guilty to one count of making a criminal threat. (Pen. Code, § 422.)

Shortly after the six-month review hearing, a therapist told the assigned social worker that the mother had threatened to shoot the social worker. In response, the Department applied for an injunction prohibiting the mother from contacting its employees, except through her counsel. The application was based in part on hearsay, including the therapist's statements, as set forth in a declaration by the social worker.

The juvenile court issued the requested injunction, although it allowed the mother not only to contact the Department through her counsel, but also to contact her assigned social worker in writing or in response to a contact initiated by the social worker.

The mother appeals, contending:

1. The juvenile court did not have the authority to issue this type of injunction.

2. There was insufficient non-hearsay evidence to support the issuance of the injunction.

3. The injunction violates the mother's constitutional rights to due process and freedom of speech.

In the published portion of this opinion, we will hold that, even if the juvenile court lacked statutory authority, it had inherent authority to issue the injunction. We will further hold that, under Welfare and Institutions Code section 281, as construed in In re Malinda S. (1990) 51 Cal.3d 368, the hearsay contained in the social worker's declaration was admissible; this hearsay, when combined with the other evidence, was sufficient to support the injunction. In the nonpublished portion of this opinion, we will hold that the mother forfeited her constitutional claims by failing to raise them below. For this reason, we express no opinion on whether the injunction would have been equally appropriate if these claims had been raised.

We will affirm.

I

PROCEDURAL BACKGROUND

In February 2010, when the child was less than a year old, the Department detained him and filed a dependency petition concerning him.

In April 2010, the juvenile court sustained jurisdiction based on failure to protect. (Welf. & Inst. Code, § 300, subd. (b).) It formally removed the child from the parents' custody, and it ordered reunification services. In September 2010, however, the juvenile court suspended the mother's visitation, finding it "detrimental to the minor at this time." In January 2011, at the six-month review hearing, the juvenile court terminated the mother's reunification services (though not the father's). Her visitation remained suspended.

On February 25, 2011, the Department filed an application for an injunction against the mother, along with an application to shorten time. The trial court issued a temporary restraining order ex parte and granted the application to shorten time.

On March 4, 2011, after a hearing, the trial court issued an injunction. The injunction named as protected persons "[a]ll employees and staff" of the Department and also the family of social worker Pamela Keyes. It required the mother to stay at least 100 yards away from any protected person, from any protected person's home or vehicle, and from Department offices. It also prohibited the mother from contacting any protected person, except as follows: (1) she could communicate with the Department through her court-appointed counsel; (2) she could communicate with her social worker in writing; and (3) she could communicate with her social worker if the social worker initiated the communication. The injunction was to remain in effect for three years.

II

THE JUVENILE COURT'S AUTHORITY TO ISSUE THE INJUNCTION

The mother contends that the juvenile court did not have the authority to issue the injunction.

We may assume, without deciding, that the injunction was not authorized under either Welfare and Institutions Code section 213.5*fn2 or Welfare and Institutions Code section 340.5.*fn3 Even if so, it was authorized under Code of Civil Procedure section 527.8, which allows an employer to obtain an injunction prohibiting "unlawful violence or threats of violence" against its employees. (Code Civ. Proc., § 527.8, subd. (f); see also id., subd. (a).)

Such an injunction can contain "stay away" and "no contact" provisions, if reasonably necessary to prevent future harm along the lines suggested by the defendant's past threats. For example, in City of San Jose v. Garbett (2010) 190 Cal.App.4th 526, the trial court issued an injunction under Code of Civil Procedure section 527.8 ordering the defendant to stay 300 yards away from protected persons and from city hall, except during city council meetings; to use only specified entrances and staircases at city hall; to be subject to search before entering the city council chambers; and to file documents with the city clerk only by mail or through an intermediary, and not in person. (City of San Jose, at p. 536, fn. 2.) The appellate court held that these restrictions were not overbroad. (Id. at p. 545.)

The Judicial Council is authorized to develop forms for use in connection with Code of Civil Procedure section 527.8. (Code Civ. Proc., § 527.8, subd. (m).) The restraining order form that it has adopted allows for both "stay away" and "no contact" provisions. (Judicial Council forms, Form WV-130, Restraining Order After Hearing to Stop Workplace Violence.) The Judicial Council's interpretation of the permissible scope of an injunction under Code of Civil Procedure section 527.8 is not binding on us, but it is highly persuasive. (See Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1011-1012.)

Code of Civil Procedure section 527.8 can apply in a dependency case. "A line of older intermediate appellate decisions seems to suggest . . . Code of Civil Procedure requirements do not apply to a juvenile dependency case unless the Welfare and Institutions Code so provides. [Citations.]" (In re R.H. (2009) 170 Cal.App.4th 678, 696-697.) However, "[t]he 'better view is that application of a statute outside the Welfare and Institutions Code (and not expressly made applicable) is not necessarily barred from dependency proceedings. Courts should determine whether the statute at issue is consistent with the overall purposes of the dependency system.' [Citation.]" (Id. at p. 697 [vexatious litigant statutes, Code Civ. Proc., § 391 et seq., apply in dependency proceedings]; see also In re Claudia E. (2008) 163 Cal.App.4th 627, 636 [declaratory relief statute, Code Civ. Proc., § 1060, applies in dependency proceedings]; In re Mark B. (2007) 149 Cal.App.4th 61, 65, 74-80 [sanctions statute, Code Civ. Proc., § 128.7, applies in dependency proceedings].)

"The juvenile court is a special department of the superior court whose powers are limited to those granted by the Juvenile Court Law [citation] plus those incidental thereto. [Citations.] Under the Juvenile Court Law, the juvenile court is authorized to make orders pertaining to abused or neglected children who come within the court's jurisdiction. [Citations.]" (In re Ashley M. (2003) 114 Cal.App.4th 1, 6-7, fn. omitted.) An order preventing a parent from harassing the social services agency and its employees is reasonably pertinent to the protection of the child. Admittedly, the agency could just file a petition for an injunction in a different department of the superior court. However, the juvenile court is in a better position to fine tune the injunction to the legitimate needs of the parent and the agency, as well as the child. The parent is also better off, because, if indigent, he or she has a right to a court-appointed lawyer. (Welf. & Inst. Code, § 317.) Thus, Code of Civil Procedure section 527.8, at least as applied in this case, is not merely consistent with but affirmatively furthers the overall purposes of the dependency system.

Even if Code of Civil Procedure section 527.8 did not exist, however, the juvenile court would still have inherent power to issue an injunction like the one in this case. "All courts have inherent powers which enable them to carry out their duties and ensure the orderly administration of justice. The inherent powers of courts are derived from article VI, section 1 of the California ...


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