In re S.G. ( 2021 )

Filed 11/15/21 (see dissenting opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re S.G. et al., Persons Coming B307988
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 20CCJP00090)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff,
v.
J.C.,
Defendant and Appellant;
R.G.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Emma Castro, Judge Pro Tempore.
Affirmed.
Caitlin Christian, under appointment by the Court of
Appeal, for Defendant and Appellant J.C.
Linda Rehm, under appointment by the Court of Appeal,
for Defendant and Respondent R.G.
_________________________________________
J.C. (Mother) filed a timely appeal from the juvenile
court’s denial of her request for a permanent restraining order
protecting her from R.G. (Father). While Mother’s appeal was
pending, the juvenile court terminated jurisdiction in an order
from which Mother did not appeal.
We hold that Mother’s failure to appeal the termination of
juvenile court jurisdiction does not render Mother’s restraining
order appeal moot. In so holding, we disagree with certain
cases to the extent they stand for the broad proposition that an
appellate court can never grant effective relief in a dependency
appeal following the unappealed termination of juvenile court
jurisdiction. Here, were we to conclude the juvenile court’s denial
of Mother’s restraining order request constitutes reversible error
and direct the court to issue the restraining order, our remittitur
would vest jurisdiction in the juvenile court for the limited
purpose of correcting that error. Correcting an erroneous denial
of Mother’s restraining order request would immediately afford
Mother effective relief. Mother’s appeal is therefore not moot.
As to the merits, we hold that the court did not abuse
its discretion in denying Mother’s requested restraining order
because the evidence does not compel the conclusion that
Mother’s safety would be in jeopardy without such an order.
Nor do we agree with Mother that the juvenile court applied an
incorrect legal standard in ruling on her request. Even assuming
the court did so err, however, such error would not warrant
2
reversal because it is not reasonably probable that Mother
would have obtained a more favorable result under the correct
standard.
Accordingly, we affirm
FACTUAL AND PROCEDURAL SUMMARY
A. Background
Mother and Father ended their relationship in 2011, when
their older daughter, S.G., was one year old, and Mother was still
pregnant with their younger daughter, L.C. They “agree that
their relationship was unhealthy or dysfunctional.” In a May
2011 referral, Mother alleged that Father emotionally abused
unborn L.C. when “Father attacked [Mother] and hit . . . her
pregnant stomach.” Los Angeles County Department of Children
and Family Services (DCFS) closed the referral as unfounded
because “there was no evident injury.” A 2012 family court order
granted Mother and Father joint legal and physical custody of the
children.
In the years that followed, Mother and Father repeatedly
accused each other of various forms of misconduct through
referrals to DCFS, all of which DCFS deemed unfounded or
inconclusive. These include: February 2012 and November 2012
referrals in which Father alleged general neglect by Mother, both
of which DCFS deemed unfounded; a November 2012 referral in
which Mother alleged physical abuse by Father that was deemed
unfounded; a November 2015 referral in which Mother alleged
emotional and physical abuse by Father that was deemed
unfounded; February 2016 and December 2016 referrals in which
Mother alleged general neglect and sexual abuse by Father, both
of which DCFS again deemed unfounded; and a November 2017
3
referral by Father alleging general neglect by Mother that was
deemed inconclusive.
Mother and Father also accused each other of various types
of wrongdoing in their requests to the family court during custody
proceedings. In September 2016, Father requested Mother’s
custodial time be reduced based on allegations that she was not
taking the children to school and was withholding the children
from him. Less than two weeks later, Mother obtained a
temporary restraining order against Father based on allegations
that he was “aggressive” during custodial exchanges and that
he had withheld the children from her. In December 2016,
Mother sought another temporary restraining order and to have
Father’s custody reduced based on allegations that he may have
sexually abused S.G. In January 2017, the family court found
the allegations were untrue, denied the restraining order request,
and modified the custody order to name Father as the primary
custodial parent. The parents were ordered to attend parenting
classes, communicate through Talking Parents (an online
co-parenting communication tool), and obtain counseling for the
children.
Between 2010 and 2020, Mother filed approximately
13 requests in family court for restraining orders against Father.
Some of these resulted in the family court granting a temporary
order, often on an ex parte basis, but the court always denied
corresponding requests for permanent orders after an evidentiary
hearing. Our record does not contain details regarding the bases
for any of these requests, except the 2016 request discussed above
and the 2019 request discussed below.
4
B. Mother’s November 2019 Request for a
Restraining Order
In November 2019, Mother filed in the family court a
request for a restraining order protecting both her and the
children from Father. As support for her request for an order
protecting her, 1 Mother claimed that Father “consistently sen[t]
[her] messages via TP (Talking Parents) to intimidate [and] scare
[her],” such as telling her he “had obtained new access to [her]
driving record” and criticized her for having been at certain
locations. Mother indicated that Father refused to explain how
he had obtained this information, and that this “invasion of [her]
privacy terrified her.”
She also described an October 7, 2019 incident that
occurred after Mother took S.G. home from school because S.G.
was ill and Father could not be reached. According to Mother,
Father came to her home, yelling and using profanity, and
“bang[ed]” on the windows and doors. L.C. was in Father’s car
while this occurred. Mother indicated she was in the restroom
when Father arrived and was “scared [and] confused.” Father
called the police, who came to the scene, but took no further
action. The children remained with Mother after the police left.
The family court granted a temporary restraining order
and set a hearing on the request for permanent orders.
1 Because Mother challenges only the denial of a
restraining order protecting her, not the denial of a restraining
order protecting the children, we do not summarize the basis
on which Mother requested an order protecting the children.
5
C. Initiation of Dependency Proceedings
Before the family court could hear the request for a
permanent restraining order, DCFS filed a petition under
Welfare and Institutions Code section 300. 2
D. Mother’s Renewed Restraining Order Request
All parties agreed to extend the family court’s November
2019 temporary protective order until the juvenile court held
a hearing on the permanent restraining order. The juvenile
court required Mother to file a renewed request, in which
she incorporated by reference her November 2019 restraining
order request filed in the family court, as well as DCFS’s
detention report.
The detention report included statements by Mother that
Father had been “verbally and physically abusive towards her”
in the past. Specifically, she told social workers that Father had
“ ‘called her everything from here to the moon,’ ” that “ ‘he also
punched [her] when [she] was pregnant with [L.C.],’ ” 3 and that
“there was a past fight in 2015 when . . . [F]ather got physical
with her and they were both arrested for the incident.”
The detention report also listed the family’s referral
history and indicated that both parents have some criminal
history related to domestic violence, although it does not indicate
(nor does the record elsewhere clarify) whether this history
involved arrests or convictions. Specifically, the report notes
2Unless otherwise indicated, all further statutory
references and citations are to the Welfare and Institutions Code.
3The timing and details of Mother’s statement in this
regard appear to correspond to her 2011 referral, which DCFS
deemed unfounded.
6
that “[F]ather has [a] criminal history regarding disorderly
conduct: . . . battery of [a] spouse on [October 26, 2015] and
inflict[ing] corporal injury on [a] spouse / cohabitant on [May 13,
2011]. [¶] Mother has [a] criminal history regarding battery
of [a] spouse on [October 26, 2015 and] battery on [a] person on
[November 18, 2015].” 4
When interviewed by DCFS about the October 2019
incident, S.G. stated that “on a Monday this year,” “ ‘daddy came
to mommy’s house screaming and banging on her door . . . like
the police and kicking on the door and windows.’ ” L.C. similarly
described the incident as having “ ‘happened on a Monday
when [S.G.] stayed at mommy’s house sick.’ ” L.C. stated that
“ ‘daddy came to mommy’s house’ . . . [and] ‘daddy was banging
on the door and yelling and saying bad words.’ ” In a subsequent
interview, L.C. further stated that, during the incident, “ ‘daddy
was trying to get a bat in his car’ ” and that “ ‘he held it, but
let it go’ ” while he was “ ‘sitting in the backseat of . . . [Father’s]
car, and mommy was looking out from her door.’ ” The report
included interviews with Father, in which he denied the incident
occurred as Mother and the children described it, and stated
instead that he knocked on the door, and claimed that the
children were being coached by their mother to describe the
incident differently.
4 Mother indicated in her DCFS interviews that she was
arrested in 2015 both for fighting with Father, and for fighting
with an ex-boyfriend. This suggests the parents’ October 2015
arrests involved the 2015 fight with Father that Mother
referenced, whereas Mother’s November 2015 arrest was for
fighting with a third party.
7
The detention report also included statements by S.G.
that “ ‘one time daddy hit mommy around 2014 or 2015,’ ” that
“ ‘mommy was bleeding and crying, and he pushed her one time
when she was pregnant.’ ”
E. Hearing on Jurisdiction, Disposition, and
Mother’s Restraining Order Request
Because of the COVID-19 pandemic, hearings on Mother’s
request for a restraining order and jurisdiction and disposition
were continued and did not begin until September 9, 2020.
The court conducted the jurisdiction and restraining order
hearings together. Both parents testified. When the court asked
Mother if Father had violated the November 2019 protective
order, she initially testified that Father had done so “when [he]
appeared at my property,” but later clarified that Father was
actually in his vehicle on a public street “near [her] driveway.”
Father testified regarding Mother’s previous restraining order
requests.
In reaching its decision denying Mother’s request for a
permanent restraining order, the court stated that it considered
the allegations in the request, the exhibits and testimony,
and the family law file. The exhibits included the DCFS
jurisdiction / disposition report, in which DCFS noted the family’s
“on-going custody dispute,” and told the court: “This family
has extensive child welfare referral history with a very specific
pattern of the parents calling in referrals on one another related
to parenting issues, and appears to be rooted in their custody
dispute.” The family law file included two 2017 “statement[s]
of issues and contentions” filed by the children’s appointed
counsel in family court pursuant to Family Code section 3151,
subdivision (b). In these statements, the children’s counsel
8
explained his view, similar to that of DCFS, that “the parties’
numerous complaints about each other” were “all . . . without
merit . . . [and] each parent is looking for anything negative
about the other to obtain some sort of advantage in these
custody proceedings.” (Underscoring omitted.) The children’s
counsel further noted that, when he interviewed the children,
they appeared to be “ ‘par[ro]ting’ ” Mother, in that they
“provided [the children’s] counsel a blow-by[-]blow history of
this case that they would have never been able to communicate
to [the children’s] counsel (let alone remember) but for [Mother]
prepping them prior to the interview.” According to [the
children’s] counsel, the “children inasmuch as confirmed during
the interview process that their mother wanted specific issues
discussed and how to answer the same.”
The court denied Mother’s request for the permanent
restraining order. Specifically, the court “[found] insufficient
evidence, certainly, not by a preponderance of the evidence to
show that Mother and / or the children are at risk of any threats
or actual physical violence by . . . Father towards either the
mother or the children.” The court did, however, grant Mother’s
alternative request for a mutual stay-away order, requiring that
“[n]either Mother nor Father are to be within 100 yards of one
another or their home or their job.”
The court then found that the children were persons
described in section 300, subdivision (c) based on allegations
that both parents’ conduct in their ongoing custody dispute was
harming the children emotionally. The court dismissed all other
counts in the petition. The court found “Mother to be acting in
bad faith” based not only on “the evidence that ha[d] been
9
presented by DCFS,” but also on “the entirety of the family
court proceedings for the last eight years.”
F. Appeal and Post-appeal Developments
Mother filed a timely notice of appeal from the court’s
jurisdiction and disposition orders, as well as the August 28,
2020 order denying her request for a permanent restraining
order. On appeal, however, she challenges only the court’s denial
of a permanent restraining order protecting her from Father.
In a May 5, 2021 order, issued while this appeal was
pending, the juvenile court terminated jurisdiction and granted
the parents joint legal and physical custody of both children. No
party has sought review of the order.
At the request of this court, Mother and Father each filed
a supplemental brief regarding whether the juvenile court’s
termination of jurisdiction mooted Mother’s appeal. 5
5DCFS is not a party to this appeal, and accordingly
neither filed a respondent’s brief, nor took a position regarding
whether termination of jurisdiction over the children rendered
Mother’s appeal moot.
10
DISCUSSION
A. Mootness and the Termination of Juvenile Court
Jurisdiction
In arguing Mother’s appeal is moot, Father cites a “general
rule” tying mootness of a dependency appeal to the unappealed
termination of juvenile court jurisdiction. (See In re C.C. (2009)
172 Cal.App.4th 1481, 1488 (C.C.), citing In re Michelle M. (1992)
8 Cal.App.4th 326, 330 (Michelle M.).) Although the termination
of juvenile court jurisdiction can, under certain circumstances,
render an appeal from a prior juvenile court order moot, we
disagree that a necessary association exists between the two. In
this section, we lay out what we view as the correct framework
for assessing mootness under such circumstances, and how we
reconcile that framework with existing case law. In the following
section (see Discussion part B, post), we apply the framework to
Mother’s appeal.
1. Mootness depends on our ability to grant
effective relief
Mootness in the dependency context—as in any context—
depends on “whether the appellate court can provide any
effective relief if it finds reversible error.” (In re N.S. (2016)
245 Cal.App.4th 53, 60 (N.S.); accord, In re E.T. (2013) 217
Cal.App.4th 426, 436 [“[a]n appeal may become moot where
subsequent events, including orders by the juvenile court, render
it impossible for the reviewing court to grant effective relief ”].)
The termination of juvenile court jurisdiction does not
categorically prevent a reviewing court from granting effective
relief in all cases. Thus, mootness of an appeal from a juvenile
court order followed by the unappealed termination of juvenile
court jurisdiction “must be decided on a case-by-case basis” (In re
11
Kristin B. (1986) 187 Cal.App.3d 596, 605; accord, C.C., supra,
172 Cal.App.4th at p. 1488), and such termination will not moot
an appeal if, on the facts of the particular case, the appellate
court can still grant the appellant effective relief.
2. Termination of juvenile court jurisdiction
does not categorically prevent a reviewing
court from providing effective relief
Code of Civil Procedure sections 43 and 906 both provide
that a reviewing court “may affirm, reverse, or modify any
judgment or order appealed from, and may direct the proper
judgment or order to be entered, or direct a new trial or further
proceedings to be had.” Neither statute qualifies a reviewing
court’s power to instruct a lower court to enter a new order or
hold further proceedings. That power applies equally to the
review of juvenile court decisions, and does not depend on the
juvenile court retaining jurisdiction, because “[t]he order of the
reviewing court . . . contained in its remittitur . . . defines the
scope of the jurisdiction of the court to which the matter is
returned.” (In re Anna S. (2010) 180 Cal.App.4th 1489, 1499;
see Hampton v. Superior Court (1952) 38 Cal.2d 652, 655
[“When there has been a decision upon appeal, the trial court
is reinvested with jurisdiction of the cause, but only such
jurisdiction as is defined by the terms of the remittitur. The
trial court is empowered to act only in accordance with the
direction of the reviewing court.”]; In re Francisco W. (2006) 139
Cal.App.4th 695, 704–705 (Francisco W.) [“[w]hen a judgment is
reversed with directions, the appellate court’s order is contained
in its remittitur, which revests the jurisdiction of the subject
matter in the lower court and defines the scope of the lower
court’s jurisdiction”].)
12
Put differently, the remittitur creates the limited
jurisdiction needed for a juvenile court to correct reversible errors
found by an appellate court. Thus, even after a juvenile court has
terminated jurisdiction, a reviewing court can still effectively
require the juvenile court to correct reversible error.
3. Cases reciting a rule that the unappealed
termination of juvenile court jurisdiction
renders an appeal moot should be limited
to their specific facts
We understand the oft-repeated “general rule” that
termination of juvenile court jurisdiction moots an appeal as
acknowledging that, given the unique nature of juvenile court
jurisdiction, termination thereof will often prevent the reviewing
court from granting effective relief. Our understanding of the
language in this way is consistent with how, in most cases citing
such a “general rule,” the reviewing court goes on to consider
whether the circumstances of the case prevent the court from
granting effective relief (see, e.g., In re Rashad D. (2021) 63
Cal.App.5th 156, 164 (Rashad D.); C.C., supra, 172 Cal.App.4th
at p. 1488)—something that would not be necessary, were we
to take literally the rule’s pronouncement that termination of
juvenile court jurisdiction renders moot an appeal of an earlier
order.
Some decisions, including one cited by Father, have
articulated a different basis for the “general rule” that
termination of juvenile court jurisdiction renders a pending
dependency appeal moot: Namely, that “the juvenile court has no
jurisdiction to conduct further hearings in the now-closed case”
(unless a party also appeals the termination of jurisdiction)
(Rashad D., supra, 63 Cal.App.5th at p. 164), so “a remand for
13
further proceedings in the juvenile court would be meaningless.”
(Id. at p. 165.) This reasoning ignores that when an appellate
court reverses with directions, it revests the lower court with
jurisdiction to follow those directions. (See, e.g., Francisco W.,
supra, 139 Cal.App.4th at pp. 704–705.) Thus, to the extent
these cases hold that an appellate court cannot effectively require
the juvenile court to correct reversible error solely because the
latter has terminated jurisdiction, we disagree.
Cases that appear to express such a view rely primarily on
Michelle M., supra, 8 Cal.App.4th at p. 330 as its source. (See,
e.g., Rashad D., supra, 63 Cal.App.5th at pp. 164−165 [citing
Michelle M. for the proposition that “[u]nless the appellate
court reverses or vacates the order terminating dependency,
the juvenile court has no jurisdiction to conduct further hearings
in the now-closed case . . . [citations] . . . [and] a remand for
further proceedings in the juvenile court would be meaningless”];
Michelle M., supra, at p. 330 [“Here, no direct relief can be
granted even were we to find reversible error, because the
juvenile court no longer has jurisdiction and we are only
reviewing that court’s ruling. We hold that the appeal filed
herein . . . is moot. Appellant’s remedy was to attack the juvenile
court’s order terminating jurisdiction in order to raise the issues
he urges before us.”].) Although the outcome in Michelle M.
may have been correct on its facts, the blanket rule it espouses
regarding mootness is too broad.
First, the authority Michelle M. cites in establishing this
rule—In re Lisa M. (1986) 177 Cal.App.3d 915, 920 (Lisa M.)—
does not support the rule, nor does Lisa M. even consider creating
an exception to Code of Civil Procedure sections 43 and 906 and
the corresponding power of a remittitur to revest a lower court
14
with limited jurisdiction. In Lisa M., a mother challenged a
juvenile court order continuing her child’s placement with a
relative and initiating proceedings to terminate the mother’s
parental rights. (Lisa M., supra, 17 Cal.App.3d at p. 918.) More
than a year after that order, the juvenile court terminated the
mother’s parental rights in an order that she did not appeal.
(Ibid.) Thus, on the facts of that case, reversing the order on
appeal (regarding placement with relatives) could not have
granted the mother effective relief unless the appellate court
also reversed an order not on appeal (the order terminating the
mother’s parental rights). (Id. at p. 919.) The appellate court
recognized it had no power to reverse juvenile court orders that
had not been appealed. (Ibid.; see also id. at p. 920 [“[w]hat
[the mother] cannot now do is seek to confer upon this court
jurisdiction to affect appealable orders from which no appeal
was taken”].) Thus, no effective relief could have been granted
to the mother because reversing the placement order would have
been “meaningless” in that it could have had no impact on the
final, unappealed order terminating her parental rights. (Id. at
p. 919.)
The court in Michelle M. concluded that the same reasoning
applied to the appeal from a juvenile court’s dispositional order
at issue in that case. (Michelle M., supra, 8 Cal.App.4th at
pp. 328−329.) The court in Michelle M. reasoned that reversing
the dispositional order could not facilitate effective relief unless
the court also reversed the not-appealed-from order terminating
juvenile court jurisdiction—otherwise the juvenile court would
lack jurisdiction to issue a new dispositional order. (Ibid.)
But, as discussed above, an appellate court reversal and
resulting remittitur gives the juvenile court jurisdiction to act
15
on directions the Code of Civil Procedure expressly authorizes
an appellate court to issue. Thus, the reasoning of Lisa M. was
not implicated in Michelle M., and is likewise not automatically
implicated whenever juvenile court jurisdiction is terminated
following an appeal from a juvenile court order where the
appellant does not appeal the termination of jurisdiction.
Nonetheless, Michelle M. appears to have reached the
correct result on the facts of that case—but not for the reasons
reflected in the rule it created and upon which it purported
to rely. This is because the appeal in Michelle M. was in part
from custody and visitation rulings in a dispositional order.
(Michelle M., supra, 8 Cal.App.4th at p. 328.) When the juvenile
court terminated its jurisdiction in Michelle M., it also issued a
custody and visitation order and transferred that order to family
court to be enforced. (Ibid.) Thus, under the facts presented in
Michelle M., the exit order provided the juvenile court’s last word
on custody and visitation (in addition to terminating jurisdiction).
Therefore, reversing an earlier order on custody and / or visitation
could not deliver the desired relief—namely, a change in custody
and / or visitation. Even after such reversal, the more recent
custody and visitation terms contained in the exit order would
govern. To effect an actual change in custody and visitation
rights, the appellate court would need to reverse the juvenile
court’s last word on custody and / or visitation—the exit order
terminating jurisdiction on those terms—which, as Lisa M. notes,
the appellate court does not have the power to do if that order
has not been appealed. This appears to have been the situation
in Michelle M. (see Michelle M., supra, 8 Cal.App.4th at p. 328),
and thus the failure of the appellant in that case to appeal an
exit order that both terminated jurisdiction and set forth the
16
final custody and visitation arrangement mooted the appeal from
the earlier dispositional order regarding custody and visitation.
Michelle M. does not explain its holding in this way,
however. Rather, it expressly states a broad rule that a
reviewing court lacks the power to order further proceedings
in the juvenile court after a nonappealed order terminating
jurisdiction. (Michelle M., supra, 8 Cal.App.4th at pp. 329−330.)
We disagree with Michelle M. to the extent it states such a broad
rule not necessary to the correct outcome on the specific facts of
that case.
A few cases, including Rashad D., cite Michelle M. for this
broad principle. Our conclusion that the Michelle M. rule is too
broad does not mean that we view all cases citing the Michelle M.
rule as incorrectly decided. To the contrary, like the Michelle M.
decision itself, the published decisions relying on Michelle M.
appear to have been correctly decided on their facts for reasons
other than those reflected in the Michelle M. rule and reasoning.
(See Rashad D., supra, 63 Cal.App.5th at pp. 159, 164 [discussed
below]; N.S., supra, 245 Cal.App.4th at pp. 56−57, 60 [citing
Michelle M. in holding the mother’s challenge to jurisdictional
finding mooted by subsequent order terminating jurisdiction
and restoring the mother full custody]; C.C., supra, 172
Cal.App.4th at pp. 1488–1489 [appeal from dispositional
order regarding visitation mooted by unappealed exit order
terminating jurisdiction where the exit order reinstated the
mother’s visitation rights, providing her “the very relief she
seeks by her appeal”].) In Rashad D., for example, the father
challenged a “jurisdiction finding [that] resulted in an adverse
juvenile custody order” and “[sought] to have that custody
order set aside.” (Rashad D., supra, 63 Cal.App.5th at p. 164.)
17
Following that appeal, the juvenile court terminated jurisdiction
in an unappealed order that also addressed custody. (Id.
at pp. 159, 164.) Although the Rashad D. court recited the
broad Michelle M. rule, the court expressly limited its holding
to a scenario in which an appellant challenges a custody
determination superseded by custody terms contained in
an unappealed exit order. (See, e.g, id. at p. 159 [noting that
“termination of dependency jurisdiction does not necessarily
moot an appeal from a jurisdiction finding that directly results
in an adverse juvenile custody order,” and noting that father
needed to also appeal “from the orders terminating jurisdiction
and modifying the parent’s prior custody status” in order for an
appellate court to be able to grant effective relief], italics added.)
B. Mother’s Appeal Is Not Moot
We now apply the principles and framework clarified above
to Mother’s appeal. We conclude that we can afford Mother
effective relief.
1. Upon remand, the juvenile court would
have the power to issue the requested
restraining order
Here, were we to reverse, we could instruct the juvenile
court to issue the desired restraining order. As discussed above,
Code of Civil Procedure sections 43 and 906 give us the power to
do so, even after termination of juvenile court jurisdiction, and
the remittitur issued as a result would grant the juvenile court
the power to carry out our directions. The juvenile court’s order
would then be enforceable by the family court. (See Garcia v.
Escobar (2017) 17 Cal.App.5th 267, 271 [“once the juvenile court
18
terminates jurisdiction, the family court assumes jurisdiction
over restraining orders issued in juvenile court”], citing § 362.4.)
The terms of the unappealed order terminating jurisdiction
in this case do not supersede or conflict with the ruling Mother
challenges on appeal—the denial of Mother’s request for a
restraining order. Thus, unlike in Michelle M. and Rashad D.,
the order terminating juvenile court jurisdiction would not need
to be modified in order to grant Mother the relief she seeks.
Mother’s failure to appeal therefrom does not prevent us from
providing effective relief.
The dissent concludes that the juvenile court lacks
fundamental jurisdiction to issue Mother’s requested restraining
order upon remand based not on the broad Michelle M. rule with
which we disagree above, but rather on the language of the
specific statute governing Mother’s restraining order request,
section 213.5. The dissent notes that section 213.5 only
authorizes a juvenile court to issue a restraining order “until the
time that the [dependency] petition is dismissed or dependency
is terminated.” (§ 213.5, subd. (a).) Because this period of
authority had ended, the dissent reasons, were we to find
reversible error and remand, the juvenile court would lack
fundamental jurisdiction to provide effective relief—that is, to
issue the requested restraining order—and any effort by the
juvenile court to issue such a restraining order would be void.
None of the fundamental jurisdiction cases the dissent
cites addresses a lower court’s jurisdiction—fundamental or
otherwise—following remand to correct errors a reviewing court
has identified on appeal. Rather, these cases consider arguments
that a lower court lacked fundamental jurisdiction to rule on a
particular issue at the time of that ruling. Certainly, had the
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juvenile court here lacked fundamental jurisdiction to issue
a restraining order at the time it ruled on Mother’s request,
remittitur following an appeal could not vest the juvenile court
with fundamental jurisdiction it otherwise lacks. But that is
not the case here. The dissent does not dispute that the juvenile
court had fundamental jurisdiction to rule on Mother’s request
for a restraining order at the time of that ruling. And, as
discussed above, a remittitur with directions provides a lower
court with the requisite authority to correct errors that a
reviewing court has identified on appeal. The dissent identifies
no case supporting a contrary view. Nor would such a rule make
sense. Consider, for example, a civil jury trial in which the
defendant is found liable, and a final judgment to this effect is
entered. The trial court under those circumstances lacks any
power after the expiration of its statutory authority to order a
new trial. Yet this is exactly what a trial court may do, following
an appeal in which the judgment for plaintiff is reversed and the
case is remanded with directions to grant a new trial. This is
because a remittitur with directions reinstates the trial court’s
power to act. So, too, could a reversal with directions and
resulting remittitur in this case provide a juvenile court
jurisdiction to execute those directions—namely, to issue the
permanent restraining order Mother seeks. The cases regarding
fundamental jurisdiction that the dissent cites are inapposite.
They consider, retrospectively, whether the lower court lacked
the power to issue the decision being reviewed by the appellate
court—not prospectively whether the lower court has the power
to issue a decision upon remand, were an appellate court to so
instruct. Here, there is no question that the juvenile court had
the power to act under section 213.5 when it issued the order
20
from which Mother appeals. The cases the dissent cites do not
consider, let alone stand for the proposition, that a remittitur
cannot empower a lower court to correct an erroneous decision—
here, by issuing the requested restraining order. 6
2. Issuing Mother the requested restraining
order would still immediately afford
Mother effective relief
We must next determine whether the juvenile court issuing
Mother the desired restraining order upon remand would still
afford Mother effective relief, now that the dependency
proceedings have been terminated. We conclude that it clearly
would. The restraining order a juvenile court could issue
6 Because a remittitur could revest jurisdiction in the
juvenile court for the limited purpose of issuing Mother’s
requested section 213.5 restraining order upon remand, the
dissent’s conclusion that a family court could not issue such
an order is beside the point. Moreover, the dissent appears to
base this conclusion on a view that section 213.5 and Family
Code section 6320, the statutory authority for family court to
issue restraining orders, apply different substantive standards.
They do not. (See, e.g., Priscila N. v. Leonardo G. (2017) 17
Cal.App.5th 1208, 1214 [“[S]ection 213.5 was amended so that
the juvenile court could issue [domestic violent restraining
orders] under the same standards provided for in the [Domestic
Violence Prevention Act of which Family Code section 6320 is
a part].” “[Domestic violent retraining orders] issued after a
noticed hearing by the juvenile court under . . . section 213.5 . . .
are indistinguishable in every respect from those issued after
noticed hearing under article 2 of the [Domestic Violence
Prevention Act].”]; In re Bruno M. (2018) 28 Cal.App.5th 990, 997
[applying language from Family Code section 6320 to define the
term “disturbing the peace” in section 213.5], italics omitted.)
21
following reversal and remand could afford Mother protection
necessary to assure her safety in the same way it would have,
had the juvenile court issued the order while dependency
proceedings were still pending. Mother’s need for such protection
did not end simply because the dependency proceedings
concluded. A juvenile court order granting Mother’s request
would immediately provide her such protection. Her appeal is
not moot.
We now turn to the merits of that appeal.
C. The Juvenile Court Did Not Abuse Its Discretion
in Denying Mother’s Request for a Permanent
Restraining Order
Section 213.5 governs the issuance of restraining orders
by the juvenile court. Thereunder, the juvenile court may issue,
inter alia, an order “enjoining any person from molesting,
attacking, striking, stalking, threatening, . . . battering,
harassing, telephoning, . . . contacting, . . . coming within a
specified distance of, or disturbing the peace of . . . any parent . . .
of the child [who is the subject of dependency proceedings],
regardless of whether the child resides with that parent, . . .
upon application in the manner provided by Section 527 of the
Code of Civil Procedure or, if related to domestic violence, in the
manner provided by Section 6300 of the Family Code.” (§ 213.5,
subd. (a).) Mother challenges the juvenile court’s denial of
her section 213.5 request as unsupported by the evidence. She
argues in the alternative that the court abused its discretion
because it applied the wrong legal standard in adjudicating
her request. We disagree on both counts for reasons we explain
below.
22
1. The evidence supports the juvenile court’s
denial of Mother’s restraining order
request
“[A]ppellate courts apply the substantial evidence standard
to determine whether sufficient facts supported the factual
findings in support of a [section 213.5] restraining order and
the abuse of discretion standard to determine whether the court
properly issued the order.” (In re Carlos H. (2016) 5 Cal.App.5th
861, 866.) When an appellant challenges “the sufficiency of
the evidence, . . . [i]f 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.)
The substantial evidence standard of review takes on a
unique formulation where, as here, “the trier of fact has expressly
or implicitly concluded that the party with the burden of proof
did not carry the burden and that party appeals.” (In re I.W.
(2009) 180 Cal.App.4th 1517, 1528, disapproved on other grounds
in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.)
“[W]here the issue on appeal turns on a failure of proof at trial,
the question for a reviewing court becomes whether the evidence
compels a finding in favor of the appellant as a matter of law.”
(In re I.W., supra, at p. 1528.) Specifically, we ask “whether the
appellant’s evidence was (1) ‘uncontradicted and unimpeached’
and (2) ‘of such a character and weight as to leave no room for
a judicial determination that it was insufficient to support a
finding.’ [Citation.]” (Ibid.)
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 [petitioner or person to be protected].” (In re B.S.
23
(2009) 172 Cal.App.4th 183, 193.) It may be sufficient to show
that the person to be restrained “disturb[ed] the peace” of the
petitioner (§ 213.5, subd. (a)), meaning he or she engaged in
conduct that destroyed the petitioner’s “mental or emotional
calm.” (In re Bruno M., supra, 28 Cal.App.5th at p. 997.)
Section 213.5 is analogous “to Family Code section 6340, which
permits the issuance of a protective order under the Domestic
Violence Prevention Act . . . if ‘failure to make [the order] may
jeopardize the safety of the petitioner.’ ” (In re B.S., supra, at
p. 194; accord, In re N.L. (2015) 236 Cal.App.4th 1460, 1466;
In re C.Q. (2013) 219 Cal.App.4th 355, 364.)
Mother argues that the record contains evidence
“compel[ling] a finding in her favor” and thus that the court’s
denial of her section 213.5 request should be reversed. We
disagree.
The parties presented competing and conflicting evidence
on key issues related to Mother’s request. Father denied banging
on the doors and windows of Mother’s home during the October
2019 incident, whereas Mother and the children indicated that he
did. Mother and S.G. indicate Father has hit Mother in the past,
but Father denies these allegations. All allegations of physical
aggression by Father made in referrals, family court custody
disputes, and juvenile court requests were ultimately deemed
unsupported or inconclusive.
These evidentiary conflicts must be considered in the
larger context of a record reflecting almost 10 years of the
parents falsely accusing each other of a myriad of wrongs and
misbehavior, as well as the conclusion of the children’s counsel
in the family court proceedings that Mother had coached the
children regarding what to say about Father and the custody
24
dispute. Mother’s restraining order request thus obligated
the juvenile court to make highly subjective evaluations about
competing evidence. The court appears to have considered this
evidence and discounted Mother’s and the children’s accounts
of Father’s behavior, expressly finding that Mother had coached
the children in connection with their statements to DCFS, and
that Mother had acted “in bad faith.” It is not our function
to second-guess such credibility determinations or weighing of
the evidence. (See R.M. v. T.A. (2015) 233 Cal.App.4th 760, 780
[“[w]e defer to the trial court’s credibility resolutions and do not
reweigh the evidence”].) Nor does merely conflicting evidence
support an insufficiency of the evidence claim (see In re
Dakota H. (2005) 132 Cal.App.4th 212, 228 [substantial evidence
review does not require reversal merely because “the trial court
might have reached a different result had it believed other
evidence”])—let alone a claim that the evidence in the record
compels resolution of Mother’s request in her favor.
Mother further points to Father’s criminal history in
2011 and 2015, which included either arrests or convictions for
domestic violence, as well as her testimony that Father violated
the 2019 temporary restraining order by parking near her
driveway. This evidence—even considered together with the
conflicting evidence discussed above—is not “ ‘of such a character
and weight as to leave no room for a judicial determination that
it was insufficient to support’ ” the requisite finding—namely,
that a permanent restraining order was necessary to protect
Mother’s safety. (In re I.W., supra, 180 Cal.App.4th at p. 1528;
see In re B.S., supra, 172 Cal.App.4th at p. 193.)
The court expressly questioned Mother’s credibility, and
the record does not contain even the most basic details of Father’s
25
at least six-year-old criminal history (such as whether he was
arrested or convicted). If the court chose to believe Father’s
version of events—as it reasonably could have, and as its findings
regarding Mother suggest it did—then the record does not
contain substantial evidence of any violent behavior by Father for
almost four years before Mother’s November 2019 restraining
order request (or, for that matter, thereafter). (See In re C.Q.,
supra, 219 Cal.App.4th at p. 364 [reversing grant of restraining
order where no violent behavior for a year following a domestic
violence incident].) We therefore decline Mother’s implicit
invitation to reevaluate the competing evidence and revisit the
juvenile court’s failure-of-proof conclusion.
2. The juvenile court did not apply the
incorrect legal standard
Mother argues in the alternative that the juvenile court
applied the incorrect legal standard in assessing her request,
and thus abused its discretion. “ ‘If the court’s decision is
influenced by an erroneous understanding of applicable law or
reflects an unawareness of the full scope of its discretion, the
court has not properly exercised its discretion under the law.
[Citation.] Therefore, a discretionary order based on an
application of improper criteria or incorrect legal assumptions is
not an exercise of informed discretion and is subject to reversal.
[Citation.]’ [Citation.] ‘ The question of whether a trial court
applied the correct legal standard to an issue in exercising its
discretion is a question of law [citation] requiring de novo review
[citation].’ ” (Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816,
820–821.)
Mother argues that, because “a restraining order under
section 213.5 does not require ‘reasonable apprehension of
26
physical abuse,’ or threats of harm,” the juvenile court applied
the incorrect standard when it denied Mother’s request by
finding “insufficient evidence . . . to show that Mother and / or the
children [were] at risk of any threats or actual physical violence
by . . . Father.” We are not convinced that the juvenile court’s
statement indicates the court viewed harm, threats of harm, or
reasonable apprehension of same as prerequisites for granting a
section 213.5 restraining order. The court’s statement could also
be understood as a rephrasing of the rule that an order should
issue only if “ ‘failure to make [the order] may jeopardize the
safety of the petitioner.’ ” (In re B.S., supra, 172 Cal.App.4th at
p. 194.)
Even if the juvenile court did incorrectly understand
the scope of its discretion, we “should not disturb the exercise
of a trial court’s discretion unless it appears that there has been
a miscarriage of justice.” (Denham v. Superior Court (1970)
2 Cal.3d 557, 566.) Thus, as Mother concedes, a lower court
decision applying the incorrect legal standard “is subject to
reversal upon a showing it is reasonably probable that, but
for the error, the appealing party would have obtained a
more favorable outcome.” (See Sabato v. Brooks (2015) 242
Cal.App.4th 715, 724−725 [applying “reasonably probable”
prejudice analysis in the context of an appeal from a Domestic
Violence Prevention Act restraining order]; see also In re
Celine R. (2003) 31 Cal.4th 45, 60 [a “miscarriage of justice”
occurs and requires reversal in dependency proceedings when
“the reviewing court finds it reasonably probable the result
would have been more favorable to the appealing party but for
the error”].)
27
For the reasons discussed above, and particularly in light
of the juvenile court’s findings bearing on Mother’s credibility and
that Mother coached the children, “[o]n this record, we can say
with some confidence that [Mother] did not carry the burden of
showing” the requested order was necessary to protect her safety.
(Guardianship of Kassandra H. (1998) 64 Cal.App.4th 1228,
1240.) We conclude it is not reasonably probable that, even
assuming the court applied the incorrect legal standard, Mother
would have obtained a more favorable outcome under the correct
one.
Accordingly, we find no reversible error in the court’s
denial of Mother’s restraining order.
28
DISPOSITION
The juvenile court’s order is affirmed.
CERTIFIED FOR PUBLICATION.
ROTHSCHILD, J.
I concur:
BENDIX, J.
29
CHANEY, J., Dissenting.
If we were to reverse the juvenile court’s denial of mother’s
request for a restraining order under section 213.5, subdivision
(a) and remand for further proceedings, neither the juvenile court
nor any other court would be able to grant any relief under
section 213.5 because the juvenile court has terminated
jurisdiction in the underlying dependency matter. No party has
appealed from the juvenile court’s order terminating jurisdiction.
We can grant no effective relief in this particular juvenile
proceeding. 1 The appeal is moot and should be dismissed.
“ ‘When courts use the phrase “lack of jurisdiction,” they
are usually referring to one of two different concepts, although, as
one court has observed, the distinction between them is “hazy.”
[Citation.]’ [Citation.] A lack of jurisdiction in its fundamental
or strict sense results in ‘ “an entire absence of power to hear or
determine the case, an absence of authority over the subject
matter or the parties.” [Citation.] On the other hand, a court
may have jurisdiction in the strict sense but nevertheless lack
“ ‘jurisdiction’ (or power) to act except in a particular manner, or
to give certain kinds of relief, or to act without the occurrence of
certain procedural prerequisites.” [Citations.] When a court fails
to conduct itself in the manner prescribed, it is said to have acted
in excess of jurisdiction.’ [Citation.] [¶] The distinction is
important because the remedies are different. ‘[F]undamental
jurisdiction cannot be conferred by waiver, estoppel, or consent.
Rather, an act beyond a court’s jurisdiction in the fundamental
sense is null and void’ ab initio.” (People v. Lara (2010) 48
1 Mother’s remedy, if she continues to believe she needs
and is entitled to a protective order, is to seek one in the family
court under Family Code section 6200 et seq.
Cal.4th 216, 224-225; accord Abelleira v. District Court of Appeal,
Third Dist. (1941) 17 Cal.2d 280, 287-288; Kabran v. Sharp
Memorial Hospital (2017) 2 Cal.5th 330, 369; In re J.W. (2020) 53
Cal.App.5th 347, 356 (J.W.); Schrage v. Schrage (2021) 69
Cal.App.5th 126, 138-139.) And a remittitur from this or any
other appellate court does no more than re-vest a lower court
with the power to act of which it had been divested with the filing
of a notice of appeal or a petition for review. Neither an appellate
court order nor a remittitur creates fundamental jurisdiction
where it does not otherwise exist, on even a limited basis. 2
“In this state, fundamental jurisdiction over juvenile
dependency cases . . . is governed by Welfare and Institutions
Code section 300, which states that a child described by that
section ‘is within the jurisdiction of the juvenile court.’ ” (J.W.,
supra, 53 Cal.App.5th at pp. 357-358; cf. In re Anna S. (2010) 180
Cal.App.4th 1489, 1493 [dealing with “jurisdiction” of juvenile
court to make orders in ongoing dependency proceedings even
during the pendency of an appeal from an order that may be
affected by the appeal—jurisdiction as court’s power to act
compared to fundamental jurisdiction].) “ ‘In dependency
proceedings, “ ‘[a] superior court convened as and exercising the
special powers of a juvenile court is vested with jurisdiction to
make only those limited determinations authorized by the
legislative grant of those special powers.’ ” ’ ” (In re A.R. (2012)
203 Cal.App.4th 1160, 1170.) “The filing of [a] dependency
2 Indeed, if fundamental jurisdiction exists in the trial
court, it continues to exist even during a pending appeal, and the
trial court retains the power to act as to matters not affected by
the pending appeal. (LAOSD Asbestos Cases (2018) 28
Cal.App.5th 862, 877.)
2
petition vest[s] the juvenile court with subject matter
jurisdiction, i.e., the inherent authority to deal with the case or
the matter before it.” (Ibid.) Dismissal of a petition or
termination of jurisdiction terminates that authority. And an
appellate opinion does not create a person described by section
300 where the juvenile court has said none exists and no party
has challenged that finding.
Here, the juvenile court terminated its “fundamental
jurisdiction,” and no party appealed from the order terminating
that jurisdiction. There is no mechanism before us by which we
could reinstate or otherwise affect that conclusion. (In re A.R.,
supra, 203 Cal.App.4th at p. 1171.)
Mother sought a restraining order in the juvenile court
pursuant to section 213.5. Section 213.5 gives the juvenile court
the “exclusive jurisdiction” to enter that order “[a]fter a petition
has been filed pursuant to Section 311 to declare a child a
dependent child of the juvenile court, and until the time that the
petition is dismissed or dependency is terminated . . .” or “[a]fter a
petition has been filed pursuant to Section 601 or 602 to declare a
child a ward of the juvenile court, and until the time that the
petition is dismissed or wardship is terminated . . . .” 3 (§ 213.5,
subds. (a), (b), italics added.)
By its express terms, then, a court may only act under
section 213.5 during the pendency of a juvenile court petition.
Section 213.5 conveys no authority to any court outside the
bounds of that timeline.
3 Because of the issues presented in this appeal, I have
largely limited my discussion to jurisdiction of dependents (§ 300)
and omitted any substantial discussion of wards (§ 601 et seq.).
3
A protective order issued under section 213.5 survives the
termination of jurisdiction. (§ 362.4, subd. (a).) And the superior
court (expressly not acting as a juvenile court) may subsequently
modify or terminate an order issued under section 213.5.
(§ 362.4, subds. (b), (c).) The Legislature created a mechanism to
enforce protective orders issued under section 213.5 by providing
that an order issued under section 213.5 “may be used as the sole
basis for opening a file” in the family court: “The [juvenile] court
may direct the parent or the clerk of the juvenile court to
transmit the order to the clerk of the superior court of the county
in which the order is to be filed. The clerk of the superior court
shall, immediately upon receipt, open a file, without a filing fee,
and assign a case number.” (§ 362.4, subd. (c).)
By contrast, no authority to issue an order under section
213.5 exists outside the window of dependency jurisdiction
ending with either a dismissal or termination of a petition under
section 300.
The mootness doctrine commands us to “dismiss an appeal
when an event occurs that renders it impossible for the court to
grant effective relief.” (In re N.S. (2016) 245 Cal.App.4th 53, 59.)
Here, regardless of whether we affirm the juvenile court’s order
or reverse it, there is no relief any court can grant mother on
remand. The juvenile court lacks fundamental jurisdiction, as
that term is discussed above, and is therefore currently without
authority to enter an order under section 213.5 even if we
concluded that the juvenile court abused its discretion when it
declined to do so on mother’s request; any order the juvenile court
entered on remand would be beyond its jurisdiction—void ab
initio. If the appellate court reversed this juvenile court’s ruling
on the requested restraining order under section 213.5 given the
4
trial court’s unappealed termination of jurisdiction, any order
under section 213.5 the juvenile court later entered would have
no legal effect.
To contrast, this is not the case where fundamental
jurisdiction in the juvenile court persists. This is not an appeal
from an order finding jurisdiction that also includes review of a
restraining order issued under section 213.5, where we could
order the juvenile court to modify or otherwise act under section
213.5 before dismissing or terminating jurisdiction. Here, in
stark contrast, the juvenile court has terminated jurisdiction, and
there has been no appeal from any jurisdictional or dispositional
order or the order terminating jurisdiction. The foundational
element of any action under section 213.5 is juvenile court
jurisdiction. That foundational element is absent.
“As a general rule, an order terminating juvenile court
jurisdiction renders an appeal from a previous order in the
dependency proceedings moot. [Citation.] However, dismissal for
mootness in such circumstances is not automatic, but ‘must be
decided on a case-by-case basis.’ [Citations.] [¶] ‘An issue is not
moot if the purported error infects the outcome of subsequent
proceedings.’ ” (In re C.C. (2009) 172 Cal.App.4th 1481, 1488.)
“[A]n erroneous jurisdiction finding,” for example, “can have
unfavorable consequences extending beyond termination of
dependency jurisdiction and that termination does not
necessarily moot an appeal of such a finding.” (In re Rashad D.
(2021) 63 Cal.App.5th 156, 164.) As in all cases, the mootness
analysis in this case is specific to this case. I am aware of no
authority to support the obviously incorrect proposition that an
appellate court can never grant effective relief in a dependency
appeal following the unappealed termination of juvenile court
5
jurisdiction. But the fact that an appellate court may view a trial
court’s order as reversible error does not itself on remand vest a
trial court with subject matter jurisdiction that it otherwise
would not have.
An erroneous finding under section 213.5 can have
unfavorable consequences extending beyond termination of
dependency jurisdiction. In In re Cassandra B. (2004) 125
Cal.App.4th 199, for example, the Court of Appeal considered
mootness in the context of a juvenile court protective order
granted under section 213.5, subdivision (a). The Court of Appeal
explained that “[b]efore a hearing on the issuance of an order
pursuant to . . . section 213.5, subdivision (a), the juvenile court is
required to conduct a search as described in Family Code section
6306, subdivision (a). Family Code section 6306, subdivision (a)
in turn provides: ‘Prior to a hearing on the issuance or denial of
an order under this part, the court shall ensure that a search is
or has been conducted to determine if the subject of the proposed
order . . . has any prior restraining order.’ Under . . . section
213.5, subdivision (k)(2), the juvenile court must consider the
existence of the prior restraining order in determining whether to
issue another one against the same party: ‘Prior to deciding
whether to issue an order under this part, the court shall
consider the following information obtained pursuant to a search
conducted under paragraph (1): . . . any prior restraining order;
and any violation of a prior restraining order.’ ” (Cassandra B. at
p. 209, italics added.) The Court of Appeal explained that the
fact that the juvenile court must consider the existence of the
prior restraining order—the fact that the existence of a
potentially erroneous prior restraining order might infect the
outcome of subsequent proceedings—was a sufficient basis to
6
conclude that the matter was not moot. 4 Correcting error that
might infect subsequent proceedings is itself effective relief. But if
the juvenile court’s order here was erroneous, it did not have the
potential to infect subsequent proceedings.
There is no statutory or any other legal requirement that a
court, when considering whether to grant a restraining order
under any statutory authority, consider a previous denial of a
request for a restraining order. And to suggest that a court
4 The appropriate disposition on reversal of a juvenile
court’s order under section 213.5 after termination of jurisdiction
would involve either vacatur of the order or remand to the family
court for further proceedings, and then under Family Code
section 6200 et seq. (See In re John W. (1996) 41 Cal.App.4th
961, 965.) The Legislature appears to have intended the end of
dependency proceedings to be the end of juvenile court
involvement in family disputes. (See § 362.4.) While the
statutory frameworks of section 213.5 and Family Code section
6200 et seq. restraining orders are virtually identical, in practice,
there are meaningful differences that render the juvenile court
an inappropriate forum for custody fights not involving
dependency jurisdiction. (See In re Travis C. (1991) 233
Cal.App.3d 492, 502 [outlining critical distinctions between
juvenile dependency and family court proceedings]; In re John
W., at pp. 970-973 [same].) If the request for a restraining order
were brought in family court under Family Code section 6200
et seq., for example, the court would not consider the question
in light of how a restraining order would benefit the children;
the juvenile court, considering a request under section 213.5,
however, must: “Juvenile courts and other public agencies
charged with enforcing, interpreting, and administering the
juvenile court law shall consider . . . the best interests of the
minor in all deliberations pursuant to this chapter.” (§ 202, subd.
(d).)
7
should or might consider a previous denial of a restraining order
when determining a request—in the absence of any authority
that it do so—has potentially dangerous consequences. In sum,
the denial of a restraining order under section 213.5 does not
have even the potential to infect subsequent proceedings
(assuming it was erroneous), but suggesting that it does may lend
itself to improper considerations of that premise in the future.
To conclude that potentially erroneous orders remain
justiciable because they are potentially erroneous is to conclude
that mootness is no more.
Holding that an appeal is not moot solely because a trial
court might have erred dismantles the mootness doctrine
wholesale.
I would have concluded that the appeal was moot. On that
basis, I would dismiss the appeal.
I respectfully dissent.
CHANEY, J.
8