Filed 4/20/18 In re J.W. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE


In re J.W., a Person Coming Under
the Juvenile Court Law.

ALAMEDA COUNTY SOCIAL SERVICES AGENCY,
Plaintiff and Respondent,
v.
H.W.,
Defendant and Respondent;
J.W.,
Appellant.




A151811

(Alameda County
Super. Ct. No. JD02830801)


J.W. (Minor) appeals from an order denying his request for a restraining order. (Welfare and Institutions Code, § 213.5.) Minor contends there was “overwhelming evidence” the order was necessary for his safety. Minor also argues the juvenile court “denied him a fair hearing on his request for a restraining order.” We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On four occasions in May 2017, the Vallejo Police Department contacted Minor, age 12, in Vallejo, California, after he ran away from the home of H.W. (Father) in Oakland, California. Minor was raised by his maternal great-grandmother and his maternal great-aunt (Aunt) in Vallejo, but Minor had been living with Father in Oakland for about nine months. On May 22, 2017, the Oakland Police Department took Minor into protective custody based on Minor’s claims of abuse against Father.
Minor told a child welfare worker he did not feel safe in Father’s home. He had run away to Vallejo, where his Aunt lives, about six times. Minor stated Father choked him once “by using his hands to put around my neck and lift me up off my feet.” Minor stated Father hit him with a wet towel based on a teacher’s report Minor was disruptive in class. Minor also reported Father “kicks the door open when I’m using the toilet,” offered to smoke marijuana with Minor, and told him “anytime you want a piece of pussy let me know when you [are] ready.”
Father denied the allegations. According to Father, over the last two years, Minor’s grades were deteriorating, and he was “out of control,” “running the streets of Vallejo and there was no structure.” Father claimed he was “trying to build a relationship/bond with his son,” but Minor’s Aunt was interfering with his efforts. Each time Minor ran away, Father filed a missing person’s report, and he was afraid Minor would be hurt “on the streets.”
On May 24, 2017, the Alameda County Social Services Agency (the Agency) filed a juvenile dependency petition pursuant to section 300, subdivisions (a) and (g), alleging Minor was physically abused by Father. The petition alleged Father used inappropriate methods to discipline Minor, including “choking him, hitting him with a wet towel, depriving him of food, and forcing him to perform excessive physical exercises.” The Agency placed Minor in foster care.
At the detention hearing, on May 25, 2017, the juvenile court found the Agency made a prima facie showing Minor was described by section 300, and ordered Minor detained. The juvenile court granted Minor a temporary restraining order against Father.
On June 22, 2017, the Agency informed the juvenile court the parties reached an agreement whereby Father would waive reunification services, the Agency would amend the dependency petition to allege jurisdiction under subdivision (b)(1) of section 300 (failure to adequately supervise or protect), rather than subdivision (a) (serious physical harm), and Father also agreed to a restraining order. Father, represented by counsel, executed and filed a waiver of reunification services and a waiver of rights. After reviewing the waiver forms with Father, the juvenile court found he knowingly, voluntarily and intelligently waived his rights.
The juvenile court found the amended allegations to be true, but indicated it was not going to issue a restraining order. Counsel for Minor requested a continuance because Minor did not have “the opportunity to present any evidence and . . . [a restraining order] was part of the stipulated settlement.” The juvenile court scheduled a further hearing on the request for a restraining order.
At the hearing on July 7, 2017, neither Father nor Minor was present. Counsel for Minor stated “[t]he evidence I have is based on the report from the Social Services Agency. [Minor] was very, very afraid of coming to court today in fear that his father would be here. He is very afraid of his father.” Counsel for Minor argued Father agreed to the restraining order in return for Minor’s agreement to submit to amended allegations. Counsel for Father responded that Father was “willingly relinquishing his parental rights,” and he did not want further involvement with Minor. The juvenile court denied the request for a permanent restraining order, noting Father “wanted nothing at all to do with this child. He was prepared to give up his parental rights on the spot. . . . I do not believe a permanent restraining order is warranted under these circumstances.” Minor appeals.
DISCUSSION
Minor contends there was “overwhelming evidence” a restraining order was necessary for his safety, and he was denied a fair hearing on his request. We disagree.
I.
The Juvenile Court Did Not Err in Denying the Request for a Restraining Order
“With regard to the issuance of a restraining order by the juvenile court pursuant to section 213.5, appellate courts apply the substantial evidence standard to determine whether sufficient facts supported the factual findings in support of a 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, 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.) “ ‘ “To show abuse of discretion, the appellant must demonstrate the juvenile court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a miscarriage of justice.” [Citation.] Throughout our analysis, we will not lightly substitute our decision for that rendered by the juvenile court. Rather, we must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings where there is substantial evidence to support them.’ ” (Carlos H., at p. 866.)
Under section 213.5, subdivision (a), the juvenile court may issue an order “enjoining any person from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, . . . contacting, . . . coming within a specified distance of, or disturbing the peace of the child . . . .” 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.” (In re B.S. (2009) 172 Cal.App.4th 183, 193.) Nor does it require evidence of a reasonable apprehension of future abuse. (Id. at pp. 193–194.) 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 . . . .’ ” (Ibid.)
Here, Minor asserts there was “overwhelming evidence” a permanent restraining order was necessary to keep him safe, but, in the discussion section of Minor’s opening brief, Minor does not identify this evidence. Instead, Minor argues the evidence was insufficient to support the juvenile court’s denial of his request, and Minor implies the juvenile court relied exclusively upon Father’s “unsworn statements” that “he planned to stay away from his son in the future.” We are not persuaded.
Applying either an abuse of discretion or a substantial evidence standard of review, we conclude the juvenile court’s decision to deny Minor’s request for a permanent restraining order was reasonable. At the June 22, 2017 hearing, Father denied the allegations of abuse, stated he had not tried to make contact with Minor, and he waived his right to reunification services. Minor had been removed from Father’s care about one month earlier, but there was no indication Father attempted to make contact with Minor, or otherwise attempted to violate the court’s temporary restraining order.
There was conflicting evidence regarding whether Father physically abused Minor. On May 11, 2017, Minor told the Vallejo Police Department that Father merely yelled at him, and Minor did not allege physical abuse until later encounters with the Vallejo and Oakland police departments. The child’s mother and Aunt reported that Father was abusive, but their reports were largely based upon what Minor had told them. At the hearing, Father continued to deny the allegations of physical abuse, argued that Minor’s attendance at school and his grades had improved under Father’s care, but Father agreed to waive reunification services because Minor kept running away. Although Minor’s counsel stated Minor was afraid of Father, the evidence before the juvenile court did not compel a conclusion Minor’s safety would be jeopardized without a restraining order. (In re I.W. (2009) 180 Cal.App.4th 1517, 1528 [“where 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”].)
II.
The Juvenile Court Did Not Deny Minor a Fair Hearing
Minor contends the juvenile court denied him a fair hearing on his request for a restraining order. Again, we are not persuaded.
“[D]ue process requires ‘notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ ” (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418; In re James Q. (2000) 81 Cal.App.4th 255, 265 [due process requires “the right to be heard in a meaningful manner”]; In re Elizabeth M. (2008) 158 Cal.App.4th 1551, 1556 (Elizabeth M.) [due process requires notice and an opportunity to be heard].)
The County Counsel argues Minor forfeited his due process challenge. We reject the forfeiture argument because Minor objected to the court’s failure to grant his request for a restraining order. Nonetheless, we agree with the County Counsel that there was no due process violation. When Minor complained he did not have “the opportunity to present any evidence” on his request for a restraining order, the court scheduled a further hearing, and Minor’s counsel appeared at the hearing. Thus, there was no due process violation. (Elizabeth M., supra, 158 Cal.App.4th at p. 1556.)
Minor contends he was too fearful to attend the second hearing, and the court thereby deprived him of the right to present evidence in person. But, as the County Counsel points out, the testimony of a minor can be taken in chambers if the minor is afraid to testify in front of a parent. (§ 350, subd. (b)(3).) Here, there is no indication Minor requested to testify in chambers, and Father—who had previously indicated he was unlikely to attend the second hearing—was not present at the hearing.
Minor contends he had “no opportunity to withdraw from the settlement he had reached with Father and the Agency,” but Minor never requested the court to change or set aside its order finding the amended allegations true based on the court’s failure to enter a permanent restraining order. (See § 388, subd. (a)(1) [“Any parent . . . or the child himself . . . may, upon grounds of change of circumstance . . . petition the court in the same action in which the child was found to be a dependent of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made . . . .”].) Minor complains Father “got to have his cake and eat it too,” but this claim ignores that Father waived his right to reunification services.
Minor argues Father “should have been precluded by the juvenile court from attempting to better the settlement after the fact.” But it was the juvenile court, not Father, that raised the issue of whether a restraining order was necessary. Finally, to the extent Minor suggests the juvenile court was required to adhere to the terms of the parties’ agreement, we disagree. “ ‘ “While it is entirely proper for the court to accept stipulations of counsel that appear to have been made advisedly, and after due consideration of the facts, the court cannot surrender its duty to see that the judgment to be entered is a just one, nor is the court to act as a mere puppet in the matter.” ’ ” (Elizabeth M., supra, 158 Cal.App.4th at p. 1559.) Where the evidence did not compel a finding that Minor’s safety would be jeopardized without a restraining order, the juvenile court did not err in denying the request.
DISPOSITION
The judgment is affirmed.





_________________________
Jones, P. J.


We concur:


_________________________
Needham, J.


_________________________
Bruiniers, J.