Filed 12/6/13 In re Michael C. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re MICHAEL C. et al., Persons Coming 

Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND 

HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

SID C.,

Defendant and Appellant.

 D064180

 (Super. Ct. No. SJ12433C-D)

APPEAL from an order of the Superior Court of San Diego County, Gary M. 

Bubis, Judge. Affirmed as modified.

Neil R. Trop, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County 

Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
2

Sid C. appeals from a restraining order issued under Welfare and Institutions Code

section 213.51 in the juvenile dependency case of his minor sons, Michael C. and 

Brandon C. Sid contends that the court erroneously admitted hearsay statements

contained in a social services report and that substantial evidence does not support the 

court's restraining order. Sid further contends that the restraining order is impermissibly 

vague because the court did not specify the distance that Sid must maintain between 

himself and a protected person. We conclude that even if Sid is correct that the alleged 

hearsay statements should have been excluded, there is still substantial evidence to 

support the court's restraining order. However, we modify the order to include the 

omitted distance. As so modified, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

On February 16, 2012, the San Diego County Health and Human Services Agency 

(the Agency) petitioned the juvenile court under section 300, subdivision (b), on behalf of 

14-year-old Michael and 12-year-old Brandon. Brothers Michael and Brandon lived with 

their father, Sid. The family came to the Agency's attention following Sid's arrest on 

drug and weapons charges. The Agency alleged that law enforcement officers had found 

a saleable amount of drugs and a blowtorch in Sid's unlocked bedroom, placing Michael 

and Brandon at a substantial risk of serious harm. 

Both Michael and Brandon tested presumptively positive for drugs, including 

methamphetamine, which is consistent with a large amount of drug residue in their home. 

 

1 Further statutory references are to the Welfare and Institutions Code unless 

otherwise noted.
3

Michael reported having witnessed physical confrontations between Sid and unknown 

individuals, including seeing Sid brandish a firearm when Sid's safety was threatened. At 

the time of his arrest, Sid had a loaded revolver in his vehicle. However, Michael and 

Brandon otherwise appeared clean, healthy, and well-groomed. In interviews with the 

Agency, both Michael and Brandon denied any abuse or neglect. 

Sid and the boys' mother, Brenda C., were divorced in 2001. At that time, they 

agreed that Sid would be the primary caregiver for Michael and Brandon. Brenda later 

had two more children from subsequent relationships. Both of those children were

involved in separate dependency proceedings. At the time of the petitions, Brenda had 

not seen Michael or Brandon for several months. 

At the pretrial status conference, both Sid and Brenda submitted on the Agency's 

allegations. The court sustained the petitions, declared the boys dependents of the court, 

removed them from Sid's custody, and ordered reunification services for both Sid and 

Brenda. Michael and Brandon were placed in the foster home of Gina B.

Sid participated in supervised visitation with the boys, but he failed to make 

substantive progress in reunification services. Sid admitted to the Agency that he was a 

heroin addict. He tested positive for various drugs, including opiates and 

methamphetamines, at least twice in the months following the pretrial status conference. 

Sid was also arrested again on felony drug and weapons charges and incarcerated for 

several months while the dependency proceedings were pending. The Agency concluded 

that Sid "has a serious addiction and is in need of intense treatment and is not capable of 

parenting at this time."
4

Approximately three weeks before the court's 12-month review hearing, Sid was 

released from jail. Prior to his release, Brenda expressed concern that Sid would be 

looking for her, that he might be angry, and that he could be dangerous. On the day of 

Sid's release, Brenda left a message with the Agency stating, "Sid is out today. I know he 

is looking for the boys. Someone let me know. I am afraid." Gina, the boys' foster 

mother, reported that Brenda told her that Sid had been to Brenda's home that day, 

"hunting for her," and had banged on Brenda's door. Brenda confirmed to the Agency 

that Sid had come to see her and that she was "scared." Brenda did not see Sid, but her 

sister did. Brenda's sister reported that Sid looked "anxious or nervous" and "not right."

Sid went to see both Michael and Brandon as well. He met each boy separately on 

their way home from school. Brandon told the Agency that Sid approached him and 

asked him to get into Sid's vehicle. Brandon refused, but Sid told Brandon that he would 

come again. Brandon said that he thought Sid was "high" at the time of their encounter.

In the interview, Brandon appeared very scared. Brandon was afraid that Sid would hurt 

Brenda or his foster mother. Brandon had seen Sid in fights before and said that Sid had 

threatened to kill people in the past. 

Michael reported a similar encounter with Sid. Sid approached Michael in his car 

while Michael was walking and called Michael over to the driver's side window. Michael 

said that he "kept [his] distance. I knew he was gonna pull something." According to 

Michael, Sid "stunk like alcohol." Sid asked Michael about school and his foster home 

placement, and then said, "Don't go. I don't care what happens to me." Michael was 

"mad" about the incident, and he was worried that Sid would hurt him. Specifically, 
5

Michael told the Agency that he was worried that Sid would break in, burn his house 

down, or have a gun. Michael had seen Sid be violent, and he told a police officer that 

the officer had better find Sid and "put him away."

Gina, the boys' foster mother, had the first interaction with the boys after their 

separate encounters with their father. She told the Agency that Brandon was "completely 

out of sorts" and looked ill. Michael seemed very panicked. In response to Gina's 

questions, both boys admitted having seen their father. Michael told Gina that Sid had 

said, "You are not my sons, worthless, and would kill them and all of us."

Two days later, a roommate discovered Sid unconscious on the floor of his home. 

Paramedics arrived and found him unresponsive. They transported Sid to a hospital, 

where he was admitted for a possible drug overdose. Sid tested positive for 

methamphetamines as well as opiates. The hospital reported that Sid was "extremely 

agitated, restless, and signed papers and left against medical advice." 

At the 12-month review hearing, both Sid and Brenda submitted on the Agency's 

recommendation that the court terminate reunification services for each of them. The 

court agreed with the Agency and terminated services. 

At that same hearing, the boys' counsel requested a temporary restraining order 

against Sid based on his conduct and statements towards the boys upon his release from 

custody. The court granted the request, finding "a showing of cause to issue a temporary 
6

restraining order based on the addendum [report] dated [May] 22."2 During the hearing, 

Gina and her partner, K.K., requested that they be included in the order together with

their own children, Shayla K. and Luke K. K.K. reported that Sid had driven by their 

home. The court issued the temporary restraining order as requested. The order named 

Michael and Brandon, as well as Gina, K.K., Shayla, and Luke, as protected persons. 

The order required Sid, among other things, to remain at least 100 yards from the

protected individuals and their home, schools, and vehicles. The court set a hearing to 

consider a three-year restraining order. 

At the next hearing, the Agency offered in evidence two reports prepared by the 

social worker assigned to Michael and Brandon's case. Sid's counsel objected to one of 

the two reports as follows:

"I would object to the addendum coming in, the [May] 22[,] 2013 

addendum report.

"My objection is that unlike the regular review hearings, unlike 

the jurisdiction and disposition hearing, there isn't a specific code 

section that allows social worker reports or social studies to be 

admitted into evidence.

"This is a different type of hearing that this court usually deals 

with.

"This is a request for a protective order pursuant to the Family 

Code.

"So for those reasons, for the record, I would ask that the [May] 

22[,] 2013 addendum report not be admitted into evidence."

 

2 The Agency's May 22 addendum report contained summaries of the boys' 

statements to the Agency, as well as Gina's statements to the Agency recounting what the 

boys had told her that Sid had said to them. 
7

The court overruled Sid's objection and found the report admissible, in part. The court 

stated, "What I am going to do is admit the addendum into evidence to the extent that it 

contains the statements of the boys. I don't believe that necessarily the boys should be 

forced to get on the stand and reiterate this information, and I'm looking at [Evidence 

Code, section] 352 in that regard." The court noted that Michael and Brandon were 

present in court and available for cross-examination about their statements. The court 

also offered the parties an opportunity to request a continuance to call witnesses in light 

of the court's ruling. Sid did not request a continuance. 

The Agency offered brief stipulated testimony from Michael and Brandon. 

Michael would testify that Sid was waiting for him on his path home from school and that 

Sid asked Michael to go with him. Similarly, Brandon would testify that he was 

approached by his father after getting off his school bus. The court accepted the 

Agency's offer of proof without objection by any party. 

Sid testified in person at the hearing. He admitted having seen both Michael and 

Brandon on the day he was released from jail. He said he had not seen them in over six 

months and wanted to make sure that they were doing well. He denied raising his voice 

to either boy, using any profanity, or being under the influence of drugs or alcohol. Sid 

specifically denied making the threat to Michael recited in the Agency's May 22 

addendum report, that "You are not my sons, worthless, and would kill them and all of

us." Sid testified that he told the boys that they would always be his sons, that they were 

always welcome back with him or his parents, and that he did not care what happened to 
8

him. He wanted them to be happy. Sid acknowledged that both Michael and Brandon 

seemed nervous while he was speaking with them. 

The court granted the request for a three-year restraining order. The order again 

named Michael and Brandon, as well as Gina, K.K., Shayla, and Luke, as protected 

persons. The court instructed Sid on the terms of the order, including that he must "stay 

100 yards away from [the protected individuals], from their home or their job or work 

place, their vehicles, their school, and any other care or child care." However, the written 

order signed by the court omits this distance. That order, on Judicial Council form JV250 (Restraining Order—Juvenile), states that Sid "must stay away at least (specify) 

yards from[]" the protected individuals and their home, schools, and vehicles. The record 

does not reflect that this omission was brought to the attention of the juvenile court. Sid 

appeals.

DISCUSSION

I

A

Section 213.5, subdivision (a) authorizes the juvenile court to issue a restraining 

order "enjoining any person from molesting, attacking, striking, stalking, threatening, 

sexually assaulting, battering, harassing, telephoning, . . . contacting, either directly or 

indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the 

peace of" any dependent child, any other children in the dependent child's household, or 

any current caretaker of the dependent child. 
9

"Issuance of a restraining order under section 213.5 does not require 'evidence that 

the restrained person has previously molested, attacked, struck, sexually assaulted, 

stalked, or battered the child.' [Citation.] Nor does it require evidence of a reasonable 

apprehension of future abuse." (In re C.Q. (2013) 219 Cal.App.4th 355, 363.) Section 

213.5 has been analogized to Family Code section 6340, which governs restraining orders

under the Domestic Violence Prevention Act (DVPA). (See In re C.Q., at pp. 363-364; 

In re B.S. (2009) 172 Cal.App.4th 183, 194.) That statute "permits the issuance of a 

protective order under the [DVPA] in the first instance, if 'failure to make [the order] may 

jeopardize the safety of the petitioner . . . .' (Fam. Code, § 6340, subd. (a); see also Fam. 

Code, § 6320.)" (In re B.S., at p. 194.)

The parties agree on the standard of review that applies here. In reviewing the 

sufficiency of the evidence supporting the court's restraining order, "we view the 

evidence in a light most favorable to the respondent, and indulge all legitimate and 

reasonable inferences to uphold the juvenile court's determination. If there is substantial 

evidence supporting the order, the court's issuance of the restraining order may not be 

disturbed." (In re Cassandra B. (2004) 125 Cal.App.4th 199, 210-211.)

B

Sid contends that the evidence does not support the court's restraining order 

because in determining whether to issue the order, the court improperly considered 

hearsay statements contained in the Agency's May 22 addendum report. Sid 

acknowledges that social service reports like the May 22 addendum report are generally 

admissible in dependency proceedings. (See, e.g., In re Keyonie R. (1996) 42 
10

Cal.App.4th 1569, 1572 ["The language of § 281 broadly authorizes the trial court to 

receive and consider social service reports in determining 'any matter involving the 

custody, status, or welfare of a minor,' " italics omitted.].) However, Sid argues that 

multiple layers of hearsay, even if contained in a social services report, are not 

admissible. (See Evid. Code, § 1200, subd. (b).) Specifically, Sid argues that the boys'

statements to their foster mother regarding their encounters with Sid following his release 

from custody, including Michael's statement recounting the threat made by his father 

("You are not my sons, worthless, and would kill them and all of us"), are inadmissible 

hearsay. Without those statements, Sid argues, the facts do not support a finding that 

"failure to make [the order] may jeopardize the safety of" the protected individuals. (See 

Fam. Code, § 6340, subd. (a); In re B.S., supra, 172 Cal.App.4th at p. 194.)

The Agency counters that Sid has forfeited any claim of error resulting from the 

admission of the May 22 addendum report by failing to make a timely and specific 

objection to that report in the juvenile court. The Agency further contends that 

substantial evidence supports the restraining order, even if the hearsay statements are 

excluded.

As a preliminary matter, we do not agree with the Agency that Sid forfeited the 

right to argue on appeal that the May 22 addendum report was erroneously admitted. 

"[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection 

could have been but was not made in the trial court." (In re S.B. (2004) 32 Cal.4th 1287, 

1293.) Sid's counsel objected on the record to the addendum report prior to its admission. 

The Agency maintains that Sid's objection was insufficiently specific. We disagree. 
11

Although Sid's counsel did not use the word "hearsay," it is apparent from the record that 

the court understood his objection to be on hearsay grounds. For example, the court 

specifically referenced the statements of Michael and Brandon that were contained in the 

addendum report in considering Sid's objection. The court also noted that Michael and 

Brandon were present at the hearing and were available for cross-examination regarding 

their statements. We conclude that Sid's objection was sufficient to preserve this issue 

for appeal. 

The Agency relies exclusively on forfeiture and does not respond to the merits of 

Sid's hearsay objection. However, we need not reach the merits of Sid's objection 

because we conclude that even if the hearsay statements are excluded, there is substantial 

evidence to support the issuance of the restraining order. Sid acknowledged that he 

approached both boys, unannounced, as they made their way home from school, in 

violation of the court's supervised visitation orders. The Agency's interviews with the 

boys show that their encounters with Sid left them frightened and upset. Brandon was 

"very worried about his safety" and was also afraid that Sid would hurt his foster mother. 

Michael said that he believed he was at risk of his father hurting him, and also feared that 

Sid might "break in, burn the house down, or have a gun." More than a week after the 

encounter, both boys were still worried about their safety. Their foster mother also 

reported that her family was scared. Sid had a history of violent encounters and an 

apparently untreated heroin addiction. Sid owned firearms in the past, and Michael

witnessed him brandishing a handgun on an occasion when he felt his safety was 

threatened. Sid's ex-wife, Brenda, anticipated trouble before Sid's encounters with the 
12

boys and reported being afraid of Sid herself. Based on this evidence, the juvenile court 

could reasonably find that failure to issue a protective order might jeopardize the physical 

safety of Brandon and Michael, as well as their foster mother and her family. (In re B.S.,

supra, 172 Cal.App.4th at p. 194.) 

Sid's assertion that he "did not have a history of acting in a violent or threatening 

manner toward his sons (or any of the other people that the restraining order specified as 

protected parties)" is contradicted by his sons' reactions to their encounters with Sid after 

his release from jail. Both boys felt scared and threatened after the encounters, for 

themselves and for their foster family. Both boys interpreted Sid's words and actions as 

credible threats of violence.3

Similarly, Sid's contention that he "had not engaged in any of the acts which may 

be prohibited under section 213.5" is unsupported by the record. Under section 213.5, 

"molesting" is one activity that may be enjoined. " '[M]olesting' " need not be sexual; it 

may include activity that is troubling, disturbing, annoying or vexing. (In re Cassandra 

B., supra, 125 Cal.App.4th at p. 212.) While not every troubling or disturbing activity 

may rise to the level of molestation, the facts show that Brandon and Michael were both 

profoundly troubled and disturbed as a result of their encounters with Sid. The record 

therefore supports a finding that Sid engaged in activity that could be enjoined under 

section 213.5.

 

3 Sid's assertion is further undermined by the substantiated allegation that Sid had 

slapped Michael across the face several years earlier. 
13

Sid bears the burden of demonstrating the absence of substantial evidence to 

support the court's order. He has not done so. The court's decision to issue the 

restraining order will therefore not be disturbed. (In re Cassandra B., supra, 125 

Cal.App.4th at pp. 210-211.)

II

Sid argues that the "stay away" provision of the restraining order should be struck 

because it fails to include the distance that Sid must maintain between himself and any 

protected person or location. The Agency acknowledges that the distance was omitted 

from the restraining order, but it contends that any error is "harmless" because the court 

orally admonished Sid to stay 100 yards away during the hearing on the restraining order.

We do not agree with the Agency that the omission is "harmless." "It has long 

been settled that the action of the court must be made a matter of record in order to avoid 

any uncertainty as to what its action has been." (In re Marcus (2006) 138 Cal.App.4th 

1009, 1015, citing Von Schmidt v. Widber (1893) 99 Cal. 511, 515.) "To hold a person in 

constructive contempt for wilful disobedience of a court order, the order must be in 

writing or must be entered in the court's minutes. It must also be definitive; otherwise, it 

lacks the certainty required to punish through a proceeding which in a broad sense is 

regarded as criminal or quasi-criminal [citation]." (Ketscher v. Superior Court (1970) 9 

Cal.App.3d 601, 605.)

It is apparent, however, that the omission of any distance from the "stay away"

provision of the restraining order was inadvertent and clerical in nature. During the 

hearing on the restraining order, the court stated that it would "grant the permanent 
14

restraining order" and orally ordered Sid to "stay 100 yards away from [the protected 

individuals], from their home or their job or work place, their vehicles, their school, and 

any other care or child care." The court's statements demonstrate that the court intended 

to order Sid to stay 100 yards away from the protected persons and locations in its 

subsequent written order. Without that distance, the stay away order is plainly 

incomplete.

Contrary to Sid's contention, however, we need not strike the defective provision. 

We may instead modify the order to conform to the oral instructions of the juvenile court. 

(Code Civ. Proc., § 43; see also People v. Mitchell (2001) 26 Cal.4th 181, 185.) "The 

simplest situation calling for modification instead of reversal is where the judgment 

contains an obvious clerical error or other defect resulting from inadvertence." (9 Witkin, 

Cal. Procedure (5th ed. 2008) Appeal, § 859, p. 922.) Here, the restraining order contains 

an obvious clerical error. We will therefore modify the order to reflect the distance of 

100 yards, as the juvenile court clearly intended.
15

DISPOSITION

The juvenile court's June 13, 2013 restraining order is modified to include the 

omitted distance, 100 yards, in the stay away provision in paragraph 8.b. of the order. As 

modified, the order is affirmed. The juvenile court shall prepare a modified and corrected 

order.

AARON, J.

WE CONCUR:

BENKE, Acting P. J.

MCDONALD, J.