In re Y.G. CA3 ( 2020 )

Filed 12/11/20 In re Y.G. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re Y.G. et al., Persons Coming Under the Juvenile C089508
Court Law.
SACRAMENTO COUNTY DEPARTMENT OF (Super. Ct. Nos. JD239761,
CHILD, FAMILY AND ADULT SERVICES, JD239762, JD239763)
Plaintiff and Respondent,
v.
E.G.,
Defendant and Appellant.
E.G., father of the minors (father), appeals from the juvenile court’s order issuing
a two-year restraining order against him. (Welf. & Inst. Code, §§ 213.5, 304, 395.)1
Finding father forfeited his claim, we will affirm the juvenile court’s order.
1 Undesignated statutory references are to the Welfare and Institutions Code.
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BACKGROUND
A detailed recitation of the facts and procedural history is unnecessary for the
disposition of this appeal. Suffice it to say that, at the contested jurisdiction/disposition
hearing on May 10, 2019, the juvenile court sustained an amended dependency petition
filed by the Sacramento County Department of Child, Family, and Adult Services
(Department) pursuant to section 300, subdivisions (b) and (c) as to the three minors, all
of whom were under the age of four. Finding there was a substantial danger to the
minors’ well-being if returned to father’s care and no reasonable means of protecting
them in lieu of removal, the court ordered the minors placed with mother in a confidential
placement, with supervised visitation for father.
After exercising jurisdiction over the minors, the court stated, “The Court’s
inclination is to issue a restraining order sua sponte to [section] 304, but I’ll hear from
parties concerning the restraining order and possible length of the restraining order.” The
Department and minors’ counsel agreed with the issuance of a restraining order and
submitted. Father’s counsel stated as follows: “I would object to a restraining order
being issued against the father. I don’t know if the Court intends on including the
children and the mother in his restraining order, but I don’t think that there’s any
evidence that since the father became aware of the situation regarding CPS that he has
violated any court orders or sought to see the children when the Court has said it’s not
appropriate or sought out any contact with the mother. So I don’t believe that it’s
necessary. He’s willing to stay away from the mother and the children. He’s willing to
follow the Court’s orders. I don’t think that there’s any evidence that he hasn’t done that
at this point.” Mother also agreed to issuance of a restraining order and, when the court
inquired as to possible duration, mother’s counsel conferred with mother and stated:
“She’s [mother] not sure. I know typically they’re three years. And they could be
modified, you know, depending on the father’s progress. She just wants to make sure
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that he still will have visits through the Department, but she would be fine with the
staying away of her apartment and . . . .”
The court issued the restraining order pursuant to section 304, noting the
Department, mother, and the minors’ counsel were all in support. The court stated its
decision was based on mother’s testimony and evidence in the report, including that there
had been numerous allegations of domestic violence between father and mother since
2017, father had unsecured weapons, mother unsuccessfully attempted to obtain a
restraining order against father in 2018 after an incident of mutual domestic violence in
the minors’ presence, the minors’ statements that father “hits mother” and “is mean to the
mother” and the parents fought frequently, and father’s resistance to law enforcement
officers’ attempt to detain the minors.
The court expressed its concern that father would attempt to contact mother or
determine her confidential location or “do something worse,” stating the restraining order
was the only means by which to ensure father did not have access to the nine weapons he
owned or to purchase additional weapons. The court asked father whether two weeks
would be sufficient time for father to turn in his nine weapons. Father responded, “It
shouldn’t be a problem to do that within two weeks,” and informed the court that he
actually owned “11 or 13” firearms. When the court asked if father had any issue with
turning in all of his weapons, father stated, “No, not at all.”
After some discussion regarding visitation, the court stated it would issue the
restraining order for a duration of two years, to expire on May 10, 2021. In discussing
service of the restraining order, father offered to “stipulate to electronic service of the
[restraining order] . . . via email.”
Father filed a timely notice of appeal of the restraining order.2
2 Father’s request for judicial notice of additional portions of the clerk and
reporter’s transcripts, filed April 29, 2020, is hereby granted.
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DISCUSSION
Father’s sole claim on appeal challenges the juvenile court’s issuance of a
restraining order in the absence of notice or a hearing.
The Department concedes the error but argues father forfeited his claim for failure
to raise it in the juvenile court and, in any event, any error was harmless.
Section 213.5 permits the juvenile court to issue orders “enjoining any person
from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering,
harassing, telephoning, . . . destroying the personal property, contacting, either directly or
indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the
peace of the child” or “any parent, legal guardian, or current caretaker of the child . . . .”
(See In re Sarah M. (1991) 233 Cal.App.3d 1486, 1504, overruled on other grounds in In
re Chantal S. (1996) 13 Cal.4th 196, 204.) A restraining order issued after notice and
hearing may remain in effect up to three years. (§ 213.5, subd. (d)(1).)
Father’s lack of timely objection to these notice deficiencies forfeited his
challenge. (In re Christopher S. (1992) 10 Cal.App.4th 1337, 1344; People v. Smith
(2001) 24 Cal.4th 849, 852; In re Riva M. (1991) 235 Cal.App.3d 403, 411-412.) “In
dependency litigation, nonjurisdictional issues must be the subject of objection or
appropriate motions in the juvenile court; otherwise those arguments have been waived
and may not be raised for the first time on appeal.” (In re Christopher B. (1996) 43
Cal.App.4th 551, 558; accord In re Maria Q. (2018) 28 Cal.App.5th 577, 590, citing In re
Dakota H. (2005) 132 Cal.App.4th 212, 221-222 [“ ‘Forfeiture . . . applies in juvenile
dependency litigation and is intended to prevent a party from standing by silently until
the conclusion of the proceedings’ ”].)
Father’s counsel objected to the issuance of a restraining order arguing it was
unnecessary. However, father did not object on the basis of lack of notice, nor did he
request a continuance. Instead, he affirmatively engaged in discussions with the court,
agreeing to surrender his firearms and return to court within two weeks to prove
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compliance with the requirements of the restraining order, volunteering information to
the court regarding the actual number of firearms in his possession, and offering to
stipulate to electronic service of the restraining order. “ ‘ “The law casts upon the party
the duty of looking after his legal rights and of calling the judge’s attention to any
infringement of them. . . .” ’ [Citation.]” (In re Christina L. (1992) 3 Cal.App.4th 404,
416.) “[A] party is precluded from urging on appeal any point not raised in the trial
court. [Citation.] Any other rule would ‘ “ ‘permit a party to play fast and loose with the
administration of justice by deliberately standing by without making an objection of
which he is aware and thereby permitting the proceedings to go to a conclusion which he
may acquiesce in, if favorable, and which he may avoid, if not.’ ” [Citations.]’
[Citation.]” (In re Riva M., supra, 235 Cal.App.3d at pp. 411-412.) “General objections
are insufficient to preserve issues for review. [Citation.] The objection must state the
ground or grounds upon which the objection is based. [Citation.]” (In re E.A. (2012) 209
Cal.App.4th 787, 790.)
Acknowledging that a claim of lack of notice can be forfeited by a failure to object
even when a party claims that there has been a due process violation (People v. Nguyen
(2017) 18 Cal.App.5th 260, 271), father claims this court has the discretion to consider
his due process challenge and, in any event, the rules of forfeiture do not apply where, as
here, the legal error resulted in an unauthorized act of the court—the issuance of an ex
parte restraining order for a duration that exceeded the 25-day limit set forth in section
213.5, subdivision (c)(1). Father’s claim is untenable.
While “application of the forfeiture rule is not automatic” (In re S.B. (2004) 32
Cal.4th 1287, 1293, superseded by statute on other grounds as stated in In re S.J. (2008)
167 Cal.App.4th 953, 961-962), “the appellate court’s discretion to excuse forfeiture
should be exercised rarely and only in cases presenting an important legal issue.
[Citations.]” (In re S.B., at p. 1293.) We are not faced with such a case here. Nor do we
agree that the issuance of a two-year restraining order was an unauthorized act. As
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described in the criminal context, “a sentence is generally ‘unauthorized’ where it could
not lawfully be imposed under any circumstance in the particular case.” (People v. Scott
(1994) 9 Cal.4th 331, 354.) The same rule applies here. Section 213.5, subdivision
(d)(1) specifically authorizes issuance of a restraining order for “no more than three
years . . . .” Thus, the juvenile court did not exceed its statutory authority in issuing the
two-year restraining order. Father’s claim is forfeited.
DISPOSITION
The juvenile court’s order is affirmed.
/s/
BLEASE, J.
We concur:
/s/
RAYE, P. J.
/s/
MURRAY, J.
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