Los Angeles Co. DCFS v. Lauchengco

Filed 7/31/07 Los Angeles Co. DCFS v. Lauchengco CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from orders of the Superior Court of Los Angeles County, Robin R. Kesler, Juvenile Court Referee. Affirmed as modified.

Jos Y. Lauchengco, Jr., in pro. per., for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.

_________________

INTRODUCTION

Jos Y. Lauchengco appeals from a temporary restraining order (TRO)[1]and a permanent restraining order issued during the course of a juvenile dependency matter. We modify both orders and affirm them as modified.

BACKGROUND

Appellant is an attorney. At the detention hearing in the underlying dependency proceeding instituted by the DCFS on behalf of 22-month-old Shelby B. (Shelby) pursuant to Welfare and Institutions Code section 300,[2]appellant represented Duane R. (Duane), the man alleged to be Shelbys father. In light of DNA test results, which revealed that Duane was not Shelbys biological father, the court issued an order to that effect and relieved appellant as Duanes counsel. The court ordered Shelby detained in the home of her maternal aunt, Tracee S. (Tracee), and dependency proceedings continued as to Shelbys mother, Heidi B. (Heidi),[3]who had been diagnosed as paranoid schizophrenic and had a long history of psychiatric admissions and drug abuse.

Appellant and Duane were friends. Duane, Heidi and Shelby lived with appellant off and on. Duane and Heidi were poor, and domestic violence and drug use plagued the couple. Appellant grew to love Shelby and provided for her needs.

On April 19, 2005, less than two weeks after being relieved as counsel for Duane, appellant, who is not related to Shelby, filed a petition to be appointed her de facto parent. In his supporting declaration, appellant explained that he has known Shelby since the day after she was born and has grown to love her. Appellant did not want Shelby to grow up disadvantaged due to Heidis and Duanes circumstances.

On May 4, 2005, the juvenile court denied appellants request for de facto parent status, characterizing the request as improper. Thereafter, the court declared Shelby a dependent of the court and ordered family reunification services for Heidi.

On June 13, 2005, DCFS filed an Application and Affidavit for Restraining Order. This document was executed under penalty of perjury by social worker Kenneth Clemens (CSW Clemens), who sought an order restraining appellant from having any contact with Shelby and her caregiver, Tracee. Attached to the application and incorporated therein by reference was a document entitled Information for Court Officer, which was prepared by social worker Melissa Pitts (CSW Pitts), and a statement written by Tracee and referenced by CSW Pitts, which was not executed under penalty of perjury. The conduct set forth in these two documents formed the basis for CSW Clemens request for a restraining order.

CSW Pitts reported that she had received a three-page statement from Tracee in which Tracee stated that she did not want appellant near her or her family. She explained, He [has] made me feel that he has a[n] uncontrollable temper and would pose a threat possibly to myself and family. CSW Pitts further reported that Heidi accused appellant of being a child molester and did not want him to have anything to do with Shelby. Shelbys maternal grandmother, Arlene B. (Arlene), who recently had received a letter from appellant and copies of documents he had filed with the court, stated, Im leery of him, I dont know why he is obsessed with Shelby. CSW Pitts therefore requested on behalf of DCFS that the court order a restraining order barring [appellant] from any further contact with Shelby or anyone involved in this case.

In her statement dated May 23, 2005, Tracee detailed two incidents during which appellant yelled at her or members of her family. The first incident took place at the hospital shortly after Shelbys birth. The second incident took place in the hallway of the courthouse. Tracee also recounted numerous telephone calls in which appellant asked to see Shelby. Tracee felt uncomfortable and uneasy about appellants persistence and pushiness.

Appellant opposed DCFSs application for a temporary restraining order and supported his opposition with a declaration executed under penalty of perjury. Appellant admitted that he confronted Tracee in the hallway of the courthouse. He explained that Tracee smiled at him as he approached her as if she had not been seeking to undermine me. [U]nable to accept the hypocrisy, appellant asked her Why are you working against me? A confrontational exchange continued with appellant telling Tracee to her face that she was a liar when she told appellant that Heidi had stated he was a child molester.

Appellant further acknowledged in his declaration that he had called Tracee four times in order to arrange to see Shelby. Appellant described Tracees promises to allow him to visit with Shelby, followed by her cancellation of the visits, as machinations.

Appellant further voiced his dissatisfaction with DCFS and Heidis family, who refused to help Heidi in her times of need. Appellant also noted that he began to suspect that the Caretaker, in concert with the maternal grandmother would like to see Heidi deprived of Shelby, but for a sinister purpose.

Appellant acknowledged that he established an educational fund for Shelby. He also stated that he sent her a dress he had bought her for her second birthday, along with a note containing birthday greetings and advising her that an education fund had been opened for her at Bank of America. The gift and note were sent to Tracees home.

On June 13, 2005, appellant appeared in court. The courts tentative ruling was to grant a TRO and to schedule the matter for a further hearing. Appellant objected, claiming there was no competent evidence upon which to grant the TRO. He moved to strike CSW Pitts report and Tracees statement, asserting they were deficient because they were not made under penalty of perjury. He alternatively asked the court to strike Heidis, Tracees and Arlenes statements as irrelevant and hearsay.

Addressing appellant, the court stated: Let me tell you what Im going to base my temporary on. First off, Im going to base it upon what did happen in the past at the hospital that I have current information as to that as a course of conduct. Again, its a course of conduct for you.

I also have the declaration from the caretaker that you confronted her in the hallway yelling at her. Another source of conduct.

Then I have your own declaration. It is part of your supplemental declaration for de facto parent request. Second-to-the last paragraph indicates that you could have simply walked away and yet I cannot do that to Shelby, indicating to me you refuse to allow Shelby to move on with her life in regards to her parents.

Based upon your own statements, sir, I am going to issue the restraining order for the next 20 days. I will set it for hearing 20 days from todays date, and you can make further written information as to your objections as to the hearsay information in there. I agree that there is a lot of hearsay. I dont have in regards to those hearsays, Im not using those in regards to making my ruling here today. . . .

When appellant attempted to argue further, the court interjected, Thank you, sir. . . .  Your confrontation out in the hallway is sufficient for me as an imminent threat. The court then issued a TRO. Paragraph 5.a. stated that appellant must not harass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance, or block movements of Tracee and Shelby. Paragraph 5.b. precluded appellant from contacting Tracee and Shelby, and Paragraph 5.d. ordered appellant to stay 100 feet away from the person and residence of Tracee and Shelby. The court then continued the matter for a hearing on a permanent restraining order.

Prior to the hearing on the order to show cause, which was held on August 30 and September 1, 2005, appellant requested informal discovery from counsel for DCFS and counsel for Shelby. Due to the confidential nature of juvenile court proceedings, both counsel declined to provide the requested discovery.

Appellant also served Arlene with a notice of deposition, which DCFS opposed. Upon the request of DCFS, the court cancelled Arlenes deposition.

Thereafter, appellant filed a petition for disclosure of juvenile court records pursuant to section 827. With the exception of Shelbys medical records, DCFS did not oppose the petition. The court granted the petition in part but refused to disclose Shelbys medical records.

In response to an ex parte motion to quash Arlenes deposition subpoena, appellant filed opposition. Therein, he described Tracee as driven for unfettered action in her schemes, motivated by greed, to deprive a mother of one of the most cherished rights God has consecrated for a woman: the right to nurture and raise her child.

The juvenile court initially permitted Arlenes deposition to proceed, limiting it to an incident that took place outside the courtroom. The court then vacated its order to secure Arlenes presence. Subsequently, the court denied appellants request to depose Arlene.

At the order to show cause hearing, the following colloquy transpired:

[APPELLANT]: The allegations against me about Shelby are of a very serious nature. They are criminal in nature.

THE COURT: All right. I may protect the child as the child is in the custody of the foster parents. And the restraining order is basically as to the foster parents. I dont know that Im going to allow testimony, sir, as to any allegations of molestation. I dont believe thats relevant here.

DEPUTY COUNTY COUNSEL: [DCFS] isnt even bringing that issue up, your Honor. It was just a statement made by one of the parties involved, one of the relatives, as to why they had concern. It was not something [DCFS] has investigated or has any care to investigate.

THE COURT: All right. So, sir, that part will not be even admissible here.

[APPELLANT]: Then, your Honor, it should be

THE COURT: And I will strike that from any of the documents.

[APPELLANT]: Good. I want all of that stricken because it is an accusation of depraved morality and

THE COURT: Its already done, sir.

[APPELLANT]: And I absolutely resent it.

THE COURT: Sir, I dont need anything else. Next.

Appellant then asked the court to rule on his request to take judicial notice of Heidis mental illness. Shelbys attorney objected on relevance and Evidence Code section 352 grounds. The court sustained the objections and denied the request. Shelbys attorney also objected to the declarations of Patrick P. (Patrick) and Duane, which appellant submitted in support of his response to the courts order to show cause. DCFS objected to these declarations as well. The court reserved its ruling until it heard live testimony.

Tracee testified that she first met appellant in the hospital after Shelby was born. The situation got out of control while inside the hospital room with Heidi and Shelby. In fact, the situation escalated to the point that a security guard was called. In the parking lot, appellant and Duane approached Tracee and Arlene. Appellant ranted that he would secure Duanes parental rights.

Tracee related that on May 4, she was sitting in the hallway of the courthouse when appellant walked past her and her husband and gave them a dirty look. After entering the courtroom, appellant walked back into the hallway, approached Tracee and asked, Why are you going against me? Tracee denied doing anything against appellant. Appellant started yelling at Heidi, who also was in the hallway. He directed Heidi to tell Tracee that she (Heidi) wanted appellant to be a part of Shelbys life. Heidi told appellant that she wanted her daughter to be with Tracee. Appellant turned to Tracee, pointed his finger in her face and yelled that she was a liar. Tracee then summoned the bailiff and asked for help. Despite the presence of the bailiff, appellant refused to leave. He stood across the hallway and continued to yell at Tracee, who was humiliated and feared for her personal safety and Shelbys.

Sometime after May 4, appellant sent a gift for Shelby to Tracees house. This caused Tracee to be concerned, in that she had never given appellant her address and she did not know how he had obtained it. She worried that he might have used his position as an attorney to obtain her address.

Tracee further stated that appellant made her uncomfortable during recent telephone calls. Tracee recounted that when Shelby was formally detained in her care in April 2005, appellant requested a visit. Tracee explained that she needed time to make arrangements. The following day, appellant called again and told Tracee that she had his and Duanes blessings to have Shelby in her care, but he persisted in wanting to see Shelby. Tracee advised appellant that she did not know whether visitation could be arranged and that she was still trying to figure things out.

Heidi called Tracee the same day and told her things that made Tracee feel uncomfortable about appellant. Tracee relayed the information to the social worker. When appellant again called about visitation, Tracee told him that the social worker did not want him to see Shelby. Appellants insistence on seeing Shelby concerned Tracee.

Appellant also testified at the order to show cause hearing. He continually discussed matters irrelevant to the issue before the court. In particular, he attempted to justify his conduct by verbalizing his love for Shelby. He testified that his disagreement with Tracee stemmed from his belief that she had been obstructing the reunification of mother and child and that she had been undermining the rehabilitation of Heidi. When the court noted that this information was not relevant, appellant started to discuss the incident that took place outside the courtroom. Specifically, he explained that when Tracee smiled at him that day, she was being hypocritical. Appellant believed Tracee had been lying to him about her intention to allow him to visit with Shelby. The court noted that this information was not relevant either. When appellant again began discussing Heidis reunification with Shelby, the court told him to move on, explaining that his views regarding reunification were not relevant.

After consideration of the evidence and the argument of counsel, the court made the following observations and ruling: Mr. Lauchengco, you may . . . well and good [have] had some general kind purpose early on in this family. It has well gone beyond that. Your behavior to me is outrageous, not only in my courtroom but in the hallway and toward this family. [] . . . [] The fact that you filed a de facto parent status motion request of this court when you had no grounds whatsoever to file that is outrageous. Ive never quicker denied a de facto parent status motion in regards to that. Done so so quickly on the heels . . . of the detention. [] Sir, the kindest thing I can say about you is that youre an officious intermeddler. Thats trying to be kind, sir. In your own paperwork you are what you accuse everyone else of. You are sickly obsessed with this family. [] It is very obvious to me, in your testimony and in your paperwork, that you feel you must raise hue . . . and cry for this child. And its not your job, sir. Your job ended when [Duane] was declared not to be the father. Instead of graciously bowing out and allowing this family to move on, you have continued to put yourself in the way. [] Is there reasonable fear? Absolutely. You used evidence that you obtained as being an attorney to mail to this child a package. It is reasonable just in the fact that its a package being received with inappropriate use of an address. I dont care what was inside. [] Now, I move on to the fact that you inappropriately used a social security number of a child.^[[4]^] Whether you went off with the childs parents to the social security office to obtain it has no bearing, sir. You used it without the permission of the child, the childs attorney and/or the mother. [] Your behavior, sir I am seriously considering notifying the State Bar over your actions in regards to this matter. [] As regards to Shelby I absolutely have the right to forbid you further contact. Period.

With respect to appellants conduct toward Tracee, the court stated, You created fear in the caretakers of a child thats under my jurisdiction. Your behavior in the hallway, your behavior in this case and your behavior and your accusations in my courtroom against a caretaker taking care of a child currently in reunification services puts fear in that person. And they are taking care of my child. [] I consider Shelby my child at this point. And your behavior creates fear. [Tracee] cannot adequately help to take care of Shelby if she has to fear from you, sir.

On September 1, 2005, the court issued a restraining order. Paragraph 5.a. stated that appellant must not harass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, molest, destroy personal property of, disturb the peace of, keep under surveillance, or block movements of Tracee and Shelby. Paragraph 5.b. provided that appellant must not contact Tracee or Shelby. Paragraph 5.c. stated that appellant must not disseminate information regarding the child to anyone, and paragraph 5.d. stated that appellant must not attempt in anyway to obtain information about the child no medical records, records request or request other documents re the child, and must not use the childs social security number. Finally, in paragraph 5.d., the court directed appellant to stay at least 300 yards away from Tracee and Shelby, their home, place of work, school or place of child care. The restraining order is set to expire on September 1, 2008.

CONTENTIONS

Appellant contends that the TRO and permanent restraining order must be reversed. With respect to the TRO, appellant claims that the trial court erroneously issued it because it was not supported by declarations executed under penalty of perjury. As to the permanent restraining order, appellant challenges several evidentiary rulings made by the court at the order to show cause hearing. Specifically, he contends the court erroneously (1) precluded him from deposing Arlene, (2) limited his testimony and that of Tracee, (3) denied his request to take judicial notice of Heidis mental illness, and (4) excluded the declarations of Patrick and Duane.

Appellant also contends that the courts findings are not supported by the evidence and that its decision to issue a permanent restraining order exceeded the bounds of reason. He further maintains the trial court was biased toward him and denied him his rights under Brady v. Maryland (1963) 373 U.S. 83 to production of evidence disproving the allegation of sexual abuse. For reasons set forth below, we modify the TRO and the permanent restraining order in certain particulars. We further reject appellants evidentiary challenges, his claim of trial court bias and his Brady claim.

DISCUSSION

I. TRO[5]

Section 213.5 permits a juvenile court to issue restraining orders to protect children and their caretakers. (Subd. (a); In re Cassandra B., supra, 125 Cal.App.4th at p. 211.) With regard to an ex parte application for a restraining order, California Rules of Court, rule 5.630(a) provides: After a petition has been filed under section 300 . . . , and until the petition is dismissed or dependency . . . is terminated, . . . the court may issue restraining orders as provided in section 213.5. Rule 5.630(f), pertaining to ex parte applications, states, The application may be submitted ex parte, and the court may grant the petition and issue a temporary order. . . .  [] (1) In determining whether or not to issue the temporary restraining order ex parte, the court must consider all documents submitted with the application and may review the contents of the juvenile court file regarding the child. (See also  213.5, subds. (a)-(c), (f).)

Appellant objected below to issuance of the TRO on the grounds that CSW Pitts report and Tracees statement had not been executed under penalty of perjury. Appellant also interposed hearsay objections to numerous statements that were incorporated by reference into the application and affidavit for restraining order filed by DCFS.

To the extent the court relied upon statements that were not made under penalty of perjury or that were hearsay in issuing the TRO, we must conclude that any evidentiary error in this regard is completely harmless. It appears that the courts decision to issue the TRO ultimately was based upon the incident in the courthouse hallway. In response to appellants final attempt to argue against issuance of a TRO, the court stated, Your confrontation out in the hallway is sufficient for me as an imminent threat. Inasmuch as appellant, in his own declaration executed under penalty of perjury, admitted that he confronted Tracee at the courthouse, asked her why she was working against him and called her a liar to her face is more than sufficient to justify the issuance of the TRO. The court also relied on appellants statement in his supplemental declaration in support of his request for de facto parent status that he could not walk away from Shelby to issue TRO. The court viewed this statement as an indication that appellant refuse[d] to allow Shelby to move on with her life in regards to her parents. Appellants own declaration provided further justification for issuance of the TRO to protect both Tracee and Shelby.

Although the court when issuing its TRO was required to use a pre-printed form (Restraining OrderJuvenile (CLETSJUV) (form JV-250)) (Cal. Rules of Court, rule 5.630(f)(2)), it was incumbent upon the court to cross out any language that was inapplicable in the case before it. Inasmuch as there was no evidence of sexual assault and there was no evidence that appellant was a threat to Shelby, paragraph 5.a. of the TRO must be modified to delete all reference to sexual abuse and to Shelby. In all other respects, the TRO is to be affirmed.

II. Permanent Restraining Order

A. Evidentiary Challenges

Appellant challenges several evidentiary rulings made by the court at the order to show cause hearing. In reviewing these challenges, we note that the trial court is vested with wide discretion in determining whether evidence should be admitted or excluded. Absent an abuse of discretion, its evidentiary rulings will not be disturbed on appeal. Further, a judgment or order will not be set aside due to the erroneous admission or exclusion of evidence unless an examination of the entire cause leads the reviewing court to conclude there has been a miscarriage of justice. (Cal. Const., art. VI,  13; Evid. Code,  353, 354.)

1. Deposition of Arlene

Appellant claimed below that Arlene was intimately familiar with Heidis long history of mental disorders and her paranoia and delusions, as well as drug abuse. Appellant sought to depose Arlene, claiming she was a percipient witness to [t]he events complained [of] as harassment by [Tracee], his alleged uncontrollable temper and events related to the claimed molestation of the child. Ultimately, the court denied appellants request to depose Arlene. Appellant contends this was error.

Error, if any, in denying appellants request to depose Arlene B. was harmless. Heidis mental condition and her claim that appellant had sexually assaulted Shelby were not at issue at the order to show cause hearing. As such, any testimony Arlene could have provided on these issues would have been irrelevant. (Evid. Code,  210.) Moreover, to the extent, if any, that Arlene could have provided eyewitness testimony regarding the incident in the hallway, appellant was not prejudiced as he himself admitted that he confronted Tracee in the courthouse.

2. Request for Judicial Notice

Appellant also takes issue with the courts denial of his request to take judicial notice of Heidis mental illness. Appellant argues that evidence of Heidis mental illness was relevant to disprove Heidis accusation that he sexually abused Shelby. Apart from appellants failure to demonstrate that mental illness is a fact that can be judicially noticed, Heidis mental illness was not relevant to the issues before the court at the order to show cause hearing. The court therefore properly denied appellants judicial notice request. (Evid. Code,  210.)

3. Declarations of Patrick and Duane

In support of his response to the order to show cause, appellant submitted the declarations of Patrick and Duane. Patrick lived with appellant at the same time Shelby and Heidi lived with appellant. In his declaration, Patrick detailed appellants involvement in Shelbys and Heidis lives and emphasized appellants fondness for the child. Patrick further denied that appellant could have molested Shelby. Unbeknownst to appellant, Heidi was abusing crystal meth. Patrick explained that Heidi was fine after ingesting crystal meth but was terrible when she was coming down. Patrick, who was familiar with the effects of crystal meth, attributed Heidis accusation to paranoia and meanness brought about by her drug use.

Duane attested to appellants good and selfless qualities. He had known appellant for seven years and lived with him periodically for many of those years. Duane considered appellant to be a rare friend. Duane detailed all that appellant had done to help him, Heidi and Shelby, who Duane loved as his own daughter. In Duanes eyes, appellant was not capable of molesting Shelby. Duane related that Heidi is paranoid and a terrible person who lies and deceives and will say anything to hurt you when she fails to take her medication or is on drugs.

To the extent these declarations seek to demonstrate Heidis mental illness and drug problem and to negate her child abuse claim, which were not at issue at the hearing on the order to show cause, they are irrelevant and properly disregarded by the court. (Evid. Code,  210.) Although Duane provided further information regarding the incident that transpired at the hospital when Shelby was born, error, if any, in refusing to consider this portion of Duanes declaration was harmless. (Cal. Const., art. VI,  13; Evid. Code,  353, 354.)

B. Evidence Justified Issuance of Restraining Order

When reviewing the propriety of a permanent restraining order issued by the juvenile court, we apply the abuse of discretion standard of review. (In re Sarah M. (1991) 233 Cal.App.3d 1486, 1502, disapproved on another ground in In re Chantal S. (1996) 13 Cal.4th 196, 204.) A court abuses its discretion when its decision exceeds the bounds of reason. When multiple inferences reasonably can be deduced from the evidence, the reviewing court may not substitute its decision for that made by the trial court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

There is no merit to appellants assertion that the restraining order was improperly issued. The juvenile court acted well within its discretion to issue the restraining order in light of Tracees testimony regarding appellants conduct in the hallway of the courthouse and his use of confidential information to maintain contact with Shelby. Indeed, appellant admitted that he angrily confronted Tracee at the courthouse and sent a birthday gift to Tracees house for Shelby. As appellant both harassed and molested[6]Tracee, the court acted well within its discretion to issue a permanent restraining order to protect her. The court also properly extended the protection of the restraining order to Shelby, who was cared for by Tracee. As the court stated, [Tracee] cannot adequately help to take care of Shelby if she has to fear from you, sir. Any contact between appellant and Shelby surely would make it much more difficult for Tracee to perform her responsibilities as Shelbys caregiver. As we now explain, however, the language of the restraining order was too broad.

C. The Restraining Order Must be Modified

As required by California Rules of Court, rule 5.630(h)(3), the restraining order after the order to show cause hearing was prepared on Restraining OrderJuvenile (CLETSJUV) (form JV-250). The permanent restraining order, like the TRO, prohibits appellant, among other things, from sexually assaulting Tracee and Shelby. Heidis accusation of sexual impropriety was not an issue that DCFS sought to investigate. The court was disinclined to permit evidence on the issue, stating that the issue was irrelevant, and there is no evidence supporting the allegation. When appellant asked that all reference to sexual assault be stricken, the court stated that it would strike that from any of the documents. It failed to do so, mandating modification of the order.[7]

Because there was no evidence of sexual assault and there was no evidence that appellant was a threat to Shelby, paragraph 5.a. of the restraining order must be modified to delete all reference to sexual abuse and to Shelby. Otherwise, the permanent restraining order is to be affirmed.

III. The Record Reveals No Evidence of Bias

Appellant contends the juvenile court referee, DCFS and Tracee were biased. We have thoroughly reviewed the record and find no evidence of bias on the part of the court, DCFS or Tracee. We therefore summarily reject appellants claim.

IV. Brady Claim

Finally, appellant contends that he was deprived of his rights under Brady v. Maryland, supra, 373 U.S. 83 to discover exculpatory evidence relative to the allegation of sexual molestation. Appellant cites no authority establishing that Brady applies in non-criminal matters. Even if it does, any error would be harmless, in that the issue of sexual molestation was not before the court and did not form a basis for issuance of the permanent restraining order. (United States v. Bagley (1985) 473 U.S. 667, 682; In re Williams (1994) 7 Cal.4th 572, 611.) We therefore reject appellants claim of a Brady violation.

DISPOSITION

Paragraph 5.a. of the TRO and paragraph 5.a. of the permanent restraining order are modified to strike all reference to sexual abuse and to Shelby. As modified, paragraph 5.a. of the TRO and the restraining order shall provide that appellant must not harass, attack, strike, threaten, assault, hit, follow, stalk, molest, destroy personal property of, disturb the peace of, keep under surveillance, or block movements of Tracee. As modified, the orders are affirmed. The matter is remanded with directions to the trial court to correct the orders to conform to this modification.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

MALLANO, Acting P. J.

VOGEL, J.

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Analysis and review provided by La Mesa Property line attorney.

[1] Respondent Department of Children and Family Services (DCFS) claims that appellants appeal from the TRO is untimely, in that an order granting a TRO is independently appealable and appellant did not file his notice of appeal within 60 days of June 13, 2005, when the TRO was issued. We agree that the order granting the TRO is appealable. (Code of Civ. Proc.,  904.1, subd. (a)(6).) There is, however, nothing in the record establishing that either the clerk of the superior court mailed appellant a document entitled Notice of Entry of judgment or a file-stamped copy of the judgment, showing the date either was mailed (Cal. Rules of Court, rule 8.104 (a)(1)) or that DCFS served appellant with a document entitled Notice of Entry of judgment or a file-stamped copy of the judgment, accompanied by proof of service (id., rule 8.104(a)(2)). Inasmuch as DCFS has failed to demonstrate that the 60-day, rather than the 180-day, limitations period for filing a notice of appeal applies to the TRO, appellants notice of appeal filed within 180 days of issuance of the TRO (and within 60 days of issuance of the permanent restraining order) is timely.

[2] All further statutory references are to the Welfare and Institutions Code unless otherwise noted.

[3] Neither Shelby, Duane nor Heidi is a party to this appeal.

[4] Appellant opened a bank account for Shelby, using her social security number.

[5] We reject DCFSs assertion that appellants appeal from the TRO is moot. Although the TRO has long since expired and has been superseded by the permanent retraining order, the TRO may have consequences for appellant in the future should DCFS seek another TRO or restraining order against him in this dependency matter. (Cf. In re Cassandra B. (2004) 125 Cal.App.4th 199, 209.)

[6] In the context of section 213.5, molest does not denote any sexual impropriety. Rather, it is, in general, a synonym for annoy. The term molestation always conveys the idea of some injustice or injury. Molest is also defined as meaning to trouble, disturb, annoy or vex. [Citation.] To molest means to interfere with so as to injure or disturb; molestation is a wilful injury inflicted upon another by interference with the user of rights as to person or property. [Citation.] Annoyance or molestation signifies something that works hurt, inconvenience or damage. (In re Cassandra B., supra, 125 Cal.App.4th at p. 212.)

[7] At oral argument, appellant represented to this court that during the pendency of this appeal, the juvenile court removed Shelby from Tracees care and returned the child to Heidi. Appellant hinted that the circumstances precipitating the restraining order have changed. If in fact this is the case, appellant is free to seek further modification of the restraining order in the juvenile court.

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.