Filed 7/14/21 In re J.B. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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 

AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

M.S. et al.,

Defendants and Appellants.

D078241

(Super. Ct. No. EJ03281F)

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
2

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 nocontact 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.]).
3

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.)
4

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 
5

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 
6

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.) 
7

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 
8

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 
9

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.
10

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.) 
11

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 
12

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 
13

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 nocontact 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.
14

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.