Filed 12/6/13 In re Michael C. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re MICHAEL C. et al., Persons Coming
Under the Juvenile Court Law.
                                                                 D064180
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                                 (Super. Ct. No. SJ12433C-D)
         Plaintiff and Respondent,

         v.

SID C.,

         Defendant and Appellant.


         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.
       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.
                                             2
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."

                                             3
       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,

                                             4
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




                                              5
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.
                                             6
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



                                              7
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 JV-

250 (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.



                                               8
       "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

                                              9
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.

                                             10
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

                                             11
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.
                                             12
       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

                                             13
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.




                                             14
                                       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.




                                              15
