IN RE: I.R. (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

David D. appeals from an order of the juvenile court taking jurisdiction over his son, I.R., pursuant to Welfare and Institutions Code 1 section 300, subdivision (b);  dispositional orders removing I.R. from his custody, denying Father reunification services and terminating jurisdiction;  and a permanent restraining order under section 213.5.   We reverse the juvenile court's jurisdictional order and, as a consequence, vacate the court's subsequent dispositional orders and family law order.   We also reverse the permanent restraining order.

FACTUAL AND PROCEDURAL BACKGROUND

David D. (Father) and his five-year-old son, I.R., lived at the home of Rosa G., the child's paternal grandmother (Grandmother).   Father was never married to I.R.'s mother, April R. (Mother).  They lived together about three and a half years.   When Mother left in April 2007, Father and I.R. moved in with Grandmother.   From the time of I.R.'s premature birth, when he weighed less than two pounds, Father had been I.R.'s primary caretaker.

In June 2008, Mother filed an action in family court to establish custody rights with respect to I.R. Mother and Father reached an agreement for joint legal custody and shared physical custody, in accordance with a schedule to begin in October 2008.

According to Mother, while she and Father lived together, Father became friends with their neighbors from Cambodia.   Later, they paid for Father to take two trips to Cambodia.   She kept I.R. while Father was on the second trip from mid-November to December 1, 2008.   When he returned from Cambodia, he believed he had contracted scabies or a similar parasite and had given it to I.R.

On December 19, 2008, Grandmother reported to the Montebello Police Department that Father had I.R. with him, they were missing, Father was mentally unstable, and he had been seeing bugs and animals.   Police officers interviewed Grandmother at her home.   She said that morning Father became angry when she asked him to take I.R. to school.   Father went with I.R. to a storage room in the backyard.   After Grandmother returned from work in the afternoon, they were in the storage room, with the door locked.   When she asked Father why he had not taken I.R. to school, he became enraged.   She then locked herself inside the home and called the police.   Grandmother told the police that Father tried to kick down her door and then left with I.R. Grandmother explained that she did not believe that Father was capable of caring for I.R. or himself due to his mental problems.   Father had a permit to carry a firearm and had guns from his work as a registered security guard and, most recently, a Brinks guard.   At Grandmother's request, the police confiscated two guns from the home.

The police also interviewed Father's sister, Letty D. (Aunt).  She said Grandmother telephoned her about 8 p.m. and told her Father was going crazy and had left with I.R. Aunt also told the police that Father was bipolar and had been acting weird lately, saying there were bugs on his head and I.R.'s head and shaving both their heads.   Aunt also told police she recently received a telephone call from a doctor Father had consulted with respect to the bugs on his head.   The doctor told Aunt that Father needed help from a psychiatrist.   Aunt said that Father had had drug problems in the past, his mental condition made him unpredictable, and he could possibly be armed with a handgun.

The police located Father and I.R. at the Best Star Inn. They were both physically fine.   Father told police that Grandmother was “[a] whack job and had no reason to report [him and I.R.] missing.”   Father said he was stricken with scabies, and Grandmother refused to keep the house properly cleaned.   The police determined that Father did not meet the criteria for an involuntary hold for mental health problems pursuant to section 5150.

A children's social worker (CSW) also came to the Inn in response to a request the police made to the Department of Children and Family Services (DCFS).  The CSW found I.R. to be clean, appropriately dressed, with no visible marks or bruises.   I.R. said that Father had shaved his head and bathed him a lot, but I.R. did not state he was afraid of his father.

The CSW found Father cooperative.   He explained he had recently vacationed in Cambodia and believed that he caught a parasite there and may have given it to I.R. For that reason, he had taken I.R. to two doctors that day.   The first doctor told Father that he might have scabies and prescribed a cream.   Then they went for a second opinion to another doctor, but Father argued with the doctor because he would not take Father seriously.   Father explained he kept I.R. out of school because he did not want I.R. to give scabies to anyone.   Father denied having a mental disorder.   Father told the CSW that he did not have a psychiatrist or therapist, but had gone to a doctor where they did a psychological evaluation, saying he was bipolar.   They gave him some medications, which were at the Grandmother's home, but he did not know the names of them.   Father denied ever being arrested or using drugs.   He agreed to random drug testing and a psychological evaluation.

The police contacted Mother.   She told them that pursuant to visitation orders by the family court, she was scheduled to have a weekend visit with I.R. The police explained to Father that he would have to allow I.R. to go to Mother's home for the visit.   Aunt picked I.R. up from the Inn.

The CSW later interviewed Mother.   She reported that she and Father shared 50/50 custody and last went to family court in August 2008.   She said she was afraid of Father and asked that her address be kept confidential.   Mother initially said that Father had violated the order and denied her contact with I.R. Then she said she had last seen I.R. three weeks earlier.   When the CSW subsequently interviewed Aunt, she told the CSW that I.R. recently stayed with Mother during the two weeks Father was in Cambodia, that is, until December 1, 2008.

Mother explained that when she and Father were living together, Father met some neighbors from Cambodia.   They invited Father to visit them in Cambodia on two occasions and paid for his trip both times.

Mother said that Father was ten years her senior and they had begun dating when she was 16 years old.²  Mother believed that Father had used drugs, but she never actually saw Father using drugs.   Her sister told her that Father used drugs.

Mother said that she left Father because she was afraid of him;  he would act okay for a while and then he would act paranoid, erratic and would see things.   To her, Father was intimidating.   She never told anyone of his strange behavior because she was afraid.

The CSW interviewed Aunt, who reported that Father had been acting strangely since returning from Cambodia.   He claimed to be seeing bugs and thought he had a parasite.   She said Father and Grandmother got into an argument because Father thought there were bugs in I.R.'s hair and shaved his head, but Grandmother did not see any bugs.   Aunt also thought Father was paranoid;  he threw out some of I.R.'s toys because he thought there were hidden cameras in them.

Aunt said that about two and a half years earlier, while Father and Mother were living together, Father made his first visit to Cambodia.   When he returned, he acted the same way he was acting now.   Aunt said that after he returned from his first visit, she received a call from San Gabriel Valley Hospital asking her to come to the hospital because Father was there and believed he could see worms under his skin.   He left the hospital against medical advice before she arrived.

Aunt told the CSW that she did not have contact with Father until he asked Grandmother to move into her home after Mother and Father separated.   Although the move was to be temporary, it had continued.   Grandmother babysat I.R. and took him to school when Father worked.

According to Aunt, on the day of the interview, Aunt received a telephone call from a doctor who said Father had listed her as an emergency contact.   The doctor told Aunt that Father was acting overly anxious and paranoid, and he needed help.   The doctor asked if Father ever abused I.R. because the doctor observed that Father was overly strict with I.R. Aunt said that she thought Father was overly strict, but she did not think Father abused I.R.

The CSW also interviewed Grandmother, who spoke only Spanish.   Aunt interpreted for her.   Grandmother said father seemed okay until he returned from Cambodia.   Then he saw bugs everywhere.   He believed bugs were on I.R. and, as a result, he started bathing I.R. more than once a day and keeping I.R. out of school.   Father also believed he was being spied on by hidden cameras.   Grandmother believed Father's behavior was due to drug use.   She said Father could be intimidating and had previously been arrested because of a domestic dispute with a former girlfriend.   Grandmother told the CSW that she was afraid of Father due to his recent behavior.   She made him leave the home and changed the locks, but he broke into the home later.

On December 24, 2008, DCFS filed a juvenile dependency petition pursuant to section 300, subdivision (b).  The petition alleged that Father had a history of mental and emotional problems, including being diagnosed as bipolar and experiencing paranoia and hallucinations, and a history of substance abuse that placed I.R. at risk.

The same day at the detention hearing, the juvenile court ordered that I.R. be detained from Father and released to Mother.   The court declared Father to be I.R.'s presumed father.   The court granted Father monitored visits.   The court ordered DCFS to provide family maintenance services to the family and to provide family reunification services to Father.   There was no order directing Father to participate in any services or other plan.   The case was continued to February 11, 2009, for a pretrial resolution conference.

On February 11, 2009, DCFS filed a first amended dependency petition alleging failure to protect (§ 300, subd. (b)).  Paragraph b-1 alleged that Father had a history of mental and emotional problems, including a diagnosis of bipolar disorder, paranoia and hallucinations and, therefore, Father was unable to provide regular care for I.R., and Father's problems endangered I.R.'s physical and emotional health and safety, as well as placed I.R. at risk of physical and emotional harm and damage.   Paragraph b-2 alleged that Father had a history of domestic violence against Mother:  “On a prior occasion, the father hit the mother with his fist leaving her with a swollen eye.”   It also alleged Mother failed to protect I.R. from domestic violence by continuing to allow Father unlimited access to the child.

Also on February 11, DCFS submitted a jurisdiction/disposition report which included summaries of additional interviews, as well as documentary evidence.   With regard to the alleged domestic violence, Mother told the CSW that when she was living with Father, he once hit her in the face.   She thought he was under the influence of drugs.   When Mother's eye became very swollen, Father took her to the hospital the next day.   After the hospital called police, Mother said she lied to the police by saying she had been mugged.   I.R. was staying with paternal relatives when the incident occurred.³

According to the DCFS report, Mother described another occasion when Father was acting crazy and yelling at her.   She left out the apartment window and climbed a fence to hide in a neighbor's backyard.   Mother said that I.R. was in the apartment at the time.   A police report obtained by DCFS showed that, on the night of April 6, 2007, the police responded to a call of a suspicious female climbing a fence.   They found Mother in the backyard of a house, appearing very anxious and nervous.   She said that she had had an argument with Father and asked the police to contact her parents to come get her.   She had no visible injuries.   There is no indication that she mentioned I.R. The police released her to her parents.   The police advised Mother to call the police department “whenever she was ready to speak to someone, if need be.”

A Department of Justice (DOJ) report showed a March 15, 1998 police contact with Father regarding alleged domestic violence, but did not specify any arrest or other disposition.   The DOJ report also showed a June 15, 2001 police contact with Father regarding alleged domestic violence and that no action was taken due to lack of sufficient evidence.

As to other actions, the DOJ report regarding Father showed two misdemeanor convictions on May 11, 1998, for driving without a license and disobeying a court order, and a third misdemeanor conviction on September 11, 2000, for driving with a suspended license.   A DOJ report on Mother showed a misdemeanor petty theft conviction on May 14, 2008.

Father denied any domestic violence against Mother.   He told the CSW that she moved out in 2007 without any explanation and left I.R. with him.

In separate interviews with a CSW, Father said he had custody of I.R., but Mother said that they shared custody 50/50.   In the jurisdiction/disposition report, DCFS included documents from a family court action Mother filed in June 2008 to obtain custody orders.   A family court order dated August 11, 2008, approved an agreement and stipulated order which gave Father and Mother joint legal custody of I.R., Father to have physical custody until October 6, 2008, at which time an agreed arrangement for sharing physical custody would begin.   The court papers included Father's sworn statement that he had been fully capable and responsible for I.R.'s well-being since birth, and that Mother left in April 2007 and did not contact him until six months later.

Mother stated to the CSW that Father had always been good about providing for I.R., getting him what he needs, and taking him to the park.   Mother also expressed her opinion that Father is too strict with I.R. She had never known Father to hit I.R.

The DCFS report included letters written in January and February 2009 from five of I.R.'s teachers and caretakers.   I.R.'s kindergarten teacher wrote that Father was a very supportive parent and very active in I.R.'s education.   The teacher stated that I.R.'s home life appeared very stable, his attendance was excellent and his homework was always completed in a timely manner.   The teacher believed that Father had displayed very good parenting skills, shown responsibility and provided a stable home life for I.R. Other letters stated that Father was a responsible and punctual parent, often volunteered and participated in I.R.'s school activities, was very supportive of I.R.'s education, and provided a positive father/son relationship during his interactions with I.R. at school.

DCFS provided medical reports from a pediatrician.   They showed he had been regularly seeing I.R. since January 2004, a few months after his birth.   A letter from I.R.'s dentist confirmed he had been receiving dental care.

When a CSW interviewed I.R. in January 2009, I.R. said that he enjoyed living with his mother, he wanted to see his father, but he did not want to live with him.   I.R. said that one time, in the backyard, he got scared when Father broke some glass by hitting it with a chair.   When asked about his shaved head, I.R. explained there were “spiders” that hurt him and woke him up at night and made him cry.   He could not see the “spiders” because they were so small, but Father had caught them between his fingers.   Mother told the CSW that I.R. seemed scared when DCFS placed him with her and he had told her about breaking the window with a chair.   She said I.R. also told her that he had bugs in his head.

Father told the CSW that Grandmother was the cause of the recent problems.   They had never had a good relationship and Aunt had always sided with Grandmother.   Father stated that all he did was seek medical attention for himself and I.R., while Grandmother stayed away from them, due to the scabies problems from his trip to Cambodia.   Father explained that when he became itchy all over and discovered he had scabies and other parasites, he began washing clothes by boiling them with bleach and got a new mattress.   On December 7 or 8, he saw a doctor at Bienvenidos Community Health Center who prescribed a cream for him.   When I.R. got itchy, Father went back to the same clinic with I.R. on December 10.   He saw a different doctor who at first thought Father was paranoid and called in the first doctor Father had seen.   The new doctor changed his viewpoint when he saw that I.R. had red dots on him.   The doctor prescribed a child's dosage for the same cream previously prescribed for Father.

Prior to the trip, at Grandmother's insistence, Father saw Dr. Gonzalez of Family Care Specialists in October 2008 with regard to sleeping problems.   The doctor said he might be suffering from depression or bipolar disorder and gave him Lexapro and Zyprexa pills.   The doctor told Father that the pills were to see what would work for him to bring about “ ‘some type of emotional change’ ” and that he could be suffering from depression because of his relationship with Grandmother and Aunt and because he had said he was feeling bad that I.R. was growing up without his mother.   Father discontinued the pills when they gave him stomach problems and made him drowsy.   Father saw Dr. Gonzalez again in November 2008.   On December 23, 2008, Father saw another doctor, Jorge Moran, of the Bienvenidos Community Health Center, complaining of body itching and stomach pain.   Dr. Moran issued a report stating that Father was unable to return to work due to acute gastroenteritis and scabies.   Attached were prescriptions for two medications.   The CSW spoke to Susan Christian, a nurse practitioner at the Center.   She confirmed Father was seen on December 4 and 23, 2008 and January 29, 2009 for body itching and was treated.   Neither she nor Dr. Moran noticed that Father had any symptoms of mental health problems.

In a separate information for court report dated February 11, 2009, DCFS stated that Family Care Specialists medical group provided reports that Father was seen on various dates, with different observations by the attending physician.⁴  DCFS stated that Dr. Hector Gonzalez “reportedly” saw Father on many occasions.   In July 2008, Father saw a physician for anxiety and difficulty sleeping.   According to DCFS, the diagnosis noted for Father was “GAD/Depression ? Bipolar,” with treatment with samples of Zyprexa and Lexapro.   In September 2008, Father was noted as “doing much better,” “no manic episodes” and “major depression.”   For the December 10, 2008 visit at Family Care Specialists, the attending physician noted that Father stated “he visualized maggots crawling in bed this am and has spread to entire body.”   The findings noted were that Father “appears anxious,” his “skin appears normal” and “[zero] maggots visualized.”   The diagnosis mentioned “dermatitis” and possibly “schizophrenia.”   The physician also noted that Father was unwilling to cooperate and that the physician contacted his sister by telephone, learned he may be experiencing hallucinations, and instructed the sister to observe Father's behavior and the safety of I.R. The physician noted that I.R. was seen also on December 10, 2008 “because father states his maggots have spread all over his son․”  The findings noted “[zero] lesions visualized over body or scalp.  [Zero] maggots visualized,” and a diagnosis of “dermatitis.”

In the closing paragraph of the February 11 jurisdiction/disposition report, DCFS stated that it was continuing to wait for Father to be seen for a psychological evaluation that Father “is currently pursuing.”   DCFS found that it would be advantageous for DCFS and the court to obtain a psychological evaluation diagnosis or report about Father's “alleged mental and emotional problems.”

As to Father's alleged substance abuse, DCFS reported that, in response to a CSW's questions, Father said that as a responsible adult parenting his son, he could not be using drugs.   Father admitted only that he used marijuana just after high school;  he last had alcohol in the form of one and a half beers at Christmas dinner.   He wanted to have drug testing by a facility of his choice but agreed to test also at the DCFS-approved facility.   He tested negative on two occasions and missed a third test due to his interview with the CSW running late.

In its jurisdiction/disposition report, DCFS included Father's transcripts from Los Angeles Community College and Pasadena Community College, as well as his high school diploma.   Several certificates showed Father had completed vocational training programs including, for example, courses in 2007 for initial firearms training, weapons of mass destruction, and retail loss prevention.   After returning from Cambodia, Father lost his job with Brinks.   Neither parent was working when DCFS submitted the report.

At the hearing on February 11, 2009, the juvenile court continued the pretrial resolution conference hearing to March 16, 2009.

In an information for court report dated February 11, 2009, DCFS reported that Father had contacted a psychologist, Dr. Nanette De Fuentes, for a psychological evaluation.   The psychologist contacted DCFS to ascertain the nature of the evaluation needed.

On February 19, 2009, DCFS filed an ex parte application requesting the court to order an Evidence Code section 730 examination of Father “for dispositional purposes only.”   DCFS noted that I.R. had not yet been declared a dependent of the court.   The accompanying report acknowledged the efforts Father had already made to arrange an evaluation by Dr. De Fuentes.   DCFS also reported that Father stated that the allegations were not fair and noted that his drug tests had been negative.   Father said he wanted to fight for full custody of I.R., he had never abandoned his son, and he took good care of his son.   Father reported to DCFS that Mother called him every day so that he could talk to his son about doing his school work and being on good behavior.   In response to an inquiry by DCFS, Father stated that Mother had left their relationship because she wanted to pursue a different relationship and she was immature.   Father pointed out that Mother had abandoned I.R., leaving him with Father, and did not attempt to get custody until over a year later.   DCFS told Father they had collected medical reports from Dr. Hector Gonzalez that questioned Father's behavior.

At the March 16, 2009 hearing, the juvenile court continued the matter to April 15 for a contested adjudication requested by Father.   From the court-approved panel of psychological evaluators, the court appointed Ronald Fairbanks, Ph.D. to perform the Evidence Code section 730 examination of Father.

At the April 15, 2009 hearing, Father was not present.   The juvenile court denied Father's attorney's request for continuance because she had not been able to contact him.   According to the attorney, CSW Patricia Sandoval had given her an updated telephone number for him, but she was unable to reach Father at that number.   CSW Sandoval had advised the attorney that Father had been recently hospitalized for a physical health problem.   The attorney requested a continuance on the basis of the possibility that Father was still ill and unable to contact her.

The juvenile court admitted into evidence the DCFS detention report and addendum report, dated December 24, 2008, the jurisdiction/disposition report dated February 11, 2009, and the DCFS ex parte application and report submitted on February 19, 2009 for appointment of a psychological evaluator.   The court acknowledged that the Evidence Code section 730 evaluation had not yet been received.

The court dismissed paragraph a-1 of the section 300 petition, alleging Father's domestic violence history as creating a risk of nonaccidental serious harm to I.R., and paragraph b-2, alleging Father had a history of substance abuse.   The court sustained the dependency petition as to the remaining allegations.   The court found true, by a preponderance of the evidence, the allegations in paragraph b-1, that I.R. was at risk due to Father's mental health diagnosis of bipolar disorder and paranoia, and the allegations in paragraph b-3, that I.R. was at risk due to Father's history of domestic violence against Mother.⁵  The court found that I.R. was a person as described by section 300, subdivision (b).  The court continued the matter for a contested disposition hearing on May 14, 2009.

On April 15, prior to the hearing, Mother filed an application for a restraining order against Father to stay away from and not to harass, molest or disturb the peace of Mother, I.R., and specified maternal relatives.⁶  Mother's affidavit in support of the application was about Father's visit to Mother's relatives' home on April 12, 2009.   At the hearing, the juvenile court granted a temporary restraining order and set a hearing on the order to show cause for the same time as the contested disposition hearing.

DCFS submitted a May 14 supplemental report stating that DCFS understood that Father did not make contact with Dr. Fairbanks for the Evidence Code section 730 evaluation.   DCFS stated:  “To date, the Department has yet to see an evaluation or a diagnosis on [Father's] mental well being.”

DCFS reported further that on March 3, 2009, Father informed the CSW he had to cancel his visit with I.R. because he had had a scabies outbreak and had a related doctor's appointment.   Father did not appear for the visit scheduled for March 5. Two subsequent scheduled visits in March did not occur because of transportation problems by both Mother and Father.   Another March visit did not occur as a result of Mother's attendance at a meeting at I.R.'s school.   On April 6, 2009, Father informed the CSW that he had been hospitalized.   The DCFS supplemental report said that Father did not appear for drug testing on February 26, March 12, April 10 and April 23.

Mother reported to the CSW that, on April 13, Father went to her grandparents' home, stayed several hours and told them and her father that people were placing cameras in his belongings and tracking devices in his car.   Mother said Father told her that his girlfriend moved away because Mother's family had threatened her.

At the May 14, 2009 hearing on the restraining order and contested disposition, Father's attorney objected to going forward with the hearing, in that Father had not been given prior notice that DCFS changed its previous recommendation from giving family reunification services to Father to a recommendation that the court issue a family law order giving Mother sole legal and physical custody, terminate jurisdiction and order no contact by Father.   The court continued the hearings to May 27 in order to give proper notice to Father.

On May 27, 2009, Dr. Fairbanks submitted his psychological evaluation of Father.   The doctor noted, without further explanation, that it took some effort to get the examination arranged and he performed it on May 20, 2009.

Dr. Fairbanks wrote that when Father explained the Cambodia/scabies situation, his related reasons for the manner in which he cared for his son, and the overpowering nature of the paternal grandmother, Father did so “in a very logical way and in a way that could be seen as very rational and not paranoid.”   The doctor opined that it could easily be the case that the alleged bipolar disorder, paranoia and history of hallucinations all comes from Grandmother, as Father claimed.   He wrote:  “This examiner is not finding these above issues to be true and [Father] seems to have reasonable explanations for it clinically.”

In the clinical interview, Dr. Fairbanks found Father to be cooperative, “pretty much not holding back,” engaged, and candid.   The doctor reported that “[i]n terms of emotional presentation in the office, [Father] appeared to be quite controlled, reasonably well adjusted with no significant emotional factors present throughout the rather lengthy period of his being interviewed and doing the MMPI, for example.   He showed no evidence of any significant emotional factors on a clinical basis.   That, however, can be controlled by a person that he is either depressed or bipolar and as a result, on a clinical basis alone, that cannot be ruled out.”

According to Dr. Fairbanks, the results of the Symptom Assessment-45 suggested that Father “could easily be reasonably well adjusted with no significant emotional factors present, consistent with his statements.”   The Minnesota Multiphasic Personality Inventory II (MMPI) results suggested that Father had “satisfactory emotional control but, for the most part, was presenting himself in a positive light, which would pull down the profile and tend to negate any indications of significant emotional factors․  [His] profile is benign.”   The MMPI supplemental scales indicated that Father “has good emotional control․”

Dr. Fairbanks continued that “[t]he results ․ are somewhat baffling in that [Father] seemed to have responded to the scale in a way that would suggest that he has kept it from ․ effectively describing his emotional factors that may be present.   On the other hand, the clinical interview would suggest that he is not overly emotionally involved, in any event, so that the two are somewhat contradictory.”

The doctor wrote that testing results were generally more reliable than clinical observation.   According to the doctor, the MMPI results tended to indicate Father “could have been in heavy denial” or “may be hiding something.   It is difficult to say at this point.”   As to the presence of any threat of physical or emotional abuse by Father, Dr. Fairbanks reported that the MMPI results suggest that there is no such threat.   The doctor also found no indication of substance abuse.

In summarizing the results of Father's psychological evaluation, Dr. Fairbanks described them “as being clinically positive, but in terms of testing, somewhat negative.   Therefore, the results are unclear and the examiner cannot make a clear statement about the father's condition.   It is important to note, however, that in the office he presented in a very positive way with no indication of any significant emotional factors present.   None whatsoever clinically.”   The doctor further opined that “[F]ather is certainly capable of pulling himself together if, in fact, he has an underlying emotional factor.”

Dr. Fairbanks wrote that Father was “certainly willing to do therapy with someone if it means reuniting with” his son.   The doctor suggested going ahead with individual therapy.   He also stated that Father should be allowed to visit with I.R., although at first the visits might be in a monitored situation.

At the May 27, 2009 hearing on the permanent restraining order and contested disposition, Father was present.   The juvenile court allowed Father to testify as to Mother's restraining order application.   Before testimony, the court announced its tentative decision was to issue the restraining order based on the court's previous finding in the jurisdiction hearing of the domestic violence history, that is, the incident in which Father hit Mother, leaving her with a swoDP1⌑Father testified that he had never hit or threatened Mother or I.R. Father testified that he was at the maternal grandparents' house on April 12, 2009, I.R. was not present and Father was not asked to leave.   Father said he and Mother lived together about three and a half years, but they were not in a relationship and had an agreement that each would live his or her own life, but not bring it into the home where they lived with I.R. Father once saw Mother with a reddish eye, but never with her eye swollen shut.   When he saw her with the reddish eye, Father had a long discussion with her that “whatever it is that she does in her own personal life outside of the home, from our agreement, she needs to keep that on her own.”

The juvenile court found that Father was not credible.   It issued the three-year permanent restraining order against Father.

For the purposes of the contested disposition hearing only, the juvenile court admitted into evidence a letter Father wrote with the intention that it be seen as his declaration and become a part of the court's record.   In the letter, Father gave his perspective on his childhood and the history of his involvement with Mother, which he described as a friendship.   Father recounted I.R.'s premature birth and the care he provided through I.R.'s medically challenging first year and thereafter.   He explained that, in 2007, after Mother left in order to be with her significant other, Grandmother asked him to move with I.R. into her home.   After they moved in, Father paid Grandmother rent and babysitting fees on a monthly basis.   Father wrote that, when he discovered the scabies problem upon his return from Cambodia, he saw three doctors who diagnosed the scabies and gave him medication.   Then he proceeded “with the recommended steps to eliminate such parasite, such as the boiling of clothes and the shaving of the head for best results when applying the medicine.”   Grandmother, however, was uneducated with regard to scabies and, as a result, wrongfully accused Father of being mentally ill, hallucinating and engaging in substance abuse.   She locked Father and I.R. out of the house without warning and called the police.   When he realized what she had done, Father went with I.R. to a hotel for the night, planning to wait until morning to resolve the matter.   That was when, at 2:00 a.m., police showed up at the door, “guns drawn, with a report that [he] kidnapped [his] own child and was said to be heading to Mexico.”   He concluded by writing that the proof was undeniable from doctors, teachers and people who had known him for years, that he was not only sane, but also “an outstanding friend [and] a great loving father.”

The juvenile court found that Father “was not involved ․ during the earlier process of this case and did not make himself available and did not cooperate with the case plan and services.  [¶] He was not forthcoming with the 730 evaluation that was done to try to assist us in figuring out a way to work [Father] into an ultimate case plan.  [¶] Based upon the information in this file and [Father's] behavior, the court finds that the more appropriate and safe order is that [Mother] have sole legal and sole physical custody.   I wouldn't want her to have to try to negotiate cooperation out of [Father] should he choose not to provide it․  [¶] And in the event that [Father] seeks to take care of his mental health issues, then he can go to family law court and provide proof that he has made progress with his issues.”

The juvenile court found, pursuant to section 361.2, subdivisions (a) and (b), that Mother was I.R.'s parent with whom he was not living at the time the petition was filed and that placement of I.R. with Mother would not be detrimental to the safety, protection, physical or emotional well-being of the child.   The court ordered that I.R. be placed with Mother under supervision of DCFS. The court terminated jurisdiction and issued a family law order which gave Mother sole legal and sole physical custody of I.R. and allowed Father monitored visitation with any monitor Mother approved.

DISCUSSION

Father challenges the sufficiency of the evidence to support the juvenile court's jurisdiction and disposition orders, as well as the three-year restraining order.   We review such challenges under the substantial evidence standard (In re Rocco M. (1991) 1 Cal.App.4th 814, 820), keeping in mind that the primary purpose of dependency proceedings is to serve the best interests of the child (In re Kieshia E. (1993) 6 Cal.4th 68, 84 (dis. opn. of Kennard J.)).

“ ‘In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact.   All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.   Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact.’  [Citation.]”  (In re David H. (2008) 165 Cal.App.4th 1626, 1633.)   Substantial evidence is evidence which is reasonable in nature, credible, of solid value and relevant such that “a reasonable mind would accept as adequate to support a conclusion.”  (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.)   Mere speculation and conjecture are not enough.  (In Savannah M. (2005) 131 Cal.App.4th 1387, 1393.)   We must defer to the juvenile court as to the credibility of the evidence.  (In re Tania S. (1992) 5 Cal.App.4th 728, 733.)   Where the evidence so viewed is sufficient as a matter of law, we must affirm the juvenile court's findings and orders.  (Ibid.)

The juvenile court found that I.R. was a person described under section 300, subdivision (b), and took jurisdiction over him.  Section 300, subdivision (b), provides for jurisdiction where “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness,” as a result of the parent's failure or inability adequately to supervise or protect the child, or the parent's inability to provide regular care for the child, due to the parent's mental illness.   Thus, to warrant the court to take jurisdiction over a child under section 300, subdivision (b), DCFS must prove, by a preponderance of the evidence, that the parent engaged in neglectful conduct, due either to the parent's failure or inability adequately to supervise or protect the child, and that the neglectful conduct caused either “serious physical harm or illness” to the child or a “substantial risk” of such harm or illness. (§ 355;  In re Veronica G. (2007) 157 Cal.App.4th 179, 185;  In re Rocco M., supra, 1 Cal.App.4th at p. 820.)

Father's fundamental contention is that the juvenile court erred in imposing jurisdiction under section 300, subdivision (b), in that there is insufficient evidence that I.R. was ever physically harmed by Father or that I.R. was at substantial risk of serious physical harm if he remained with Father.   We agree that there is no substantial evidence that Father has ever physically abused I.R., caused him to suffer any serious physical harm or illness, or put I.R. at substantial risk of physical harm or illness by failing to provide for his regular care.   For reasons we discuss more fully below, we agree with Father that substantial evidence does not support the juvenile court's jurisdictional findings by which it sustained paragraphs b-1 and b-3 of the first amended petition.

A. Paragraph b-1:  Father's Mental Health as Source of Risk

Father contends the evidence is insufficient to support jurisdiction pursuant to section 300, subdivision (b), on the basis that Father lacked capacity to provide regular care for I.R. due to mental illness, as alleged in paragraph b-1.   We agree.

Review of the record reveals no evidence of a definitive diagnosis that Father suffered from mental illness.   The DCFS supplemental report submitted to the court on May 14, 2009, a month after the court made the jurisdictional findings, states:  “To date, the Department has yet to see an evaluation or a diagnosis on [Father's] mental well being.”   Contrary to comments during hearings by counsel for other parties, there was no evidence that Father was ever hospitalized for any mental health problem.   The medical records information showed that Father consulted physicians with regard to physical health problems.   Some of the records contained cryptic notes by physicians questioning whether Father may have a mental illness, such as major depression, schizophrenia or bipolar disorder.⁷  There was no evidence that the physicians were asked to or were qualified to render a definitive diagnosis of any such mental illnesses.   Such anecdotal diagnostic comments about mental health are speculative in nature and do not constitute substantial evidence to support a finding that Father suffered from a mental illness.  (In re James R. (2009) 176 Cal.App.4th 129, 137;  In re David M. (2005) 134 Cal.App.4th 822, 830.)

Evidence did not support the comments from DCFS and the juvenile court to the effect that Father was in denial about his mental illness and was uncooperative with respect to seeking professional help.   The evidence showed that, within six weeks of the detention hearing, Father had taken the initiative to arrange a mental health evaluation by a psychologist, Dr. De Fuentes, in his efforts to show that he did not suffer from mental illness.   The court denied Father's request to have an evaluation by Dr. De Fuentes or any psychologist of Father's choice and, instead, ordered him to submit to evaluation by a psychologist from a court-approved panel, Dr. Fairbanks.

Contrary to the relevant findings by the juvenile court, Dr. Fairbanks reported that Father was cooperative during the evaluation process and was agreeable to undergoing individual therapy if necessary to regain custody of I.R. The Fairbanks report was not available at the time the court made its jurisdictional findings.   It served, however, as an after-the-fact confirmation of Father's cooperation with respect to the mental health issues others had raised.   The evaluation was before the court prior to the time the court issued the dispositional order removing I.R. from Father's custody and issuing a family law order granting Mother sole legal and physical custody.

In addition, Dr. Fairbanks's report also provides after-the-fact support for a finding that Father was not diagnosed as bipolar, paranoid schizophrenic, or having other serious mental illness.   As a member of a court-approved panel of psychological evaluators, Dr. Fairbanks had effectively been pre-qualified to render a definitive diagnosis as to whether Father suffered from serious mental illness.   Dr. Fairbanks stated several times that he did not find any evidence of a serious mental illness such as schizophrenia or bipolar disorder.   Rather, Dr. Fairbanks opined that, whatever problems Father might have, he appeared to be able to “hold it together,” not only with respect to the doctor, but “he is certainly capable of doing that with his [child.]”   Dr. Fairbanks reported the results of the Symptom Assessment-45 test and the MMPI indicated that Father had a “benign” profile.   According to Dr. Fairbanks, the supplemental scales indicated that Father “has good emotional control and reasonable ego strength.”

The juvenile court focused on one aspect of Dr. Fairbanks's report to the effect that he could not definitively conclude that Father had no mental illness.   This had to do with ambiguity in the validity scales for one of the tests, the MMPI. Dr. Fairbanks stated, for example, that the scales suggested that, in his responses, Father was presenting himself in a positive light, which, in turn, suggested that the test was not fully effective to describe “his emotional factors that may be present.”   Dr. Fairbanks concluded that it was “still an open issue regarding the MMPI results.”

Dr. Fairbanks reported that the MMPI results suggested there is not a threat that I.R. would be physically or emotionally abused by Father.   He qualified that conclusion by again indicating that the reliability of the MMPI results was “still an open question.”

With regard to the results of psychological testing of Father, the doctor stated that he “cannot make a clear statement about [Father's] condition.   It is important to note, however, that in the office he presented in a very positive way with no indication of any significant emotional factors present.   None whatsoever clinically.”

As to his recommendations for Father with respect to bipolar disorder, paranoia and history of hallucinations, Dr. Fairbanks stated that “[Father] notes that this is all coming from the grandmother in this case, whom he describes as difficult, but someone that he loves and cares about.   That could easily be the case.   The examiner would not rule that out.   This examiner is not finding these above issues to be true and he seems to have reasonable explanations for it clinically.”  (Italics added.)

Even if we were to assume that Father had a mental illness, the existence of mental illness does not give rise to the presumption of harm or risk of harm to the child required for jurisdiction under section 300, subdivision (b).  (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318;  In re Jamie M. (1982) 134 Cal.App.3d 530, 540.)   The type of risk of harm required for jurisdiction under section 300, subdivision (b), is risk of serious physical harm or illness.  (In re David M., supra, 134 Cal.App.4th at pp. 829-830.)   To meet its burden of proof, a child protective agency must show precisely how the child has been harmed and would be harmed by a parent's mental illness.   (In re James R., supra, 176 Cal.App.4th at p. 136.)   DCFS failed to make such a showing.

There is no evidence that I.R. ever suffered physical harm of any sort due to Father's alleged mental illness.   It is undisputed that Father had been the primary caretaker for I.R. since his birth.   Mother told DCFS that Father took good care of I.R. Head Start and other teachers submitted letters about Father's exceptional parenting, I.R.'s good record of school attendance and homework completion.   Father submitted medical records from I.R.'s pediatrician showing regular care from a few months after his birth to the time of his detention.

Grandmother, Aunt, Mother and DCFS's staff may have perceived that Father suffered from mental illness, but there was no substantial evidence to give substance to that perception.   Thus, there was no substantial evidence that I.R. would be at risk of serious physical harm or illness in the future due to Father's alleged mental illness.  “Perceptions of risk, rather than actual evidence of risk, do not suffice as substantial evidence.”  (In re James R., supra, 176 Cal.App.4th at p. 137.)

The facts and circumstances with respect to Father's alleged mental illness are far less compelling than those in two cases in which the reviewing courts reversed the finding of jurisdiction taken under section 300, subdivision (b), on the basis of a parent's mental illness.   In In re David M., supra, 134 Cal.App.4th 822, the child's mother had a documented delusional mental disorder and the father had also been diagnosed with mental health problems.   The court reversed the jurisdiction findings, however, because the child protective agency had not shown how the mental illnesses of the parents placed the child at a “substantial risk of serious physical harm.”  (Id. at pp. 829-830.)

In In re James R., supra, 176 Cal.App.4th 129, the court reversed findings of jurisdiction based upon substantial evidence of a parent's mental illness.   (Id. at pp. 131-137.)   Even though the parent had a documented history of mental health problems, there was no evidence that she had abused or neglected her children in the past.  (Id. at p. 136.)   Without a history of abuse and neglect, “ ‘it is nearly impossible to determine whether [the children are] at risk of suffering from ․ abuse and neglect’ ” in the future.  (Ibid.) According to the court, the evidence showed that the children were healthy and well cared for and that the parents were meeting their medical care and academic needs.  (Id. at p. 137.)   In reaching its decision to reverse the jurisdiction findings, the court noted that potential harms associated with the parent's mental illness could be identified, but evidence of a specific, defined risk of harm was required to support a finding that a child is at substantial risk of future harm.  (Id. at pp. 136-137.)   The record lacked such evidence.   The court recognized holdings in similar cases that speculation about future conduct cannot support a finding that a child is at risk of harm within the meaning of section 300, subdivision (b).  (Ibid.)

B. Paragraph b-3:  Father's Domestic Violence History

Father further contends the facts were insufficient to support imposing jurisdiction on the basis of domestic violence pursuant to section 300, subdivision (b), as alleged in paragraph b-3 as amended.   We agree.

It is undisputed that no evidence shows that I.R. was present at or witnessed any incident of domestic violence.   The petition did not allege that I.R. perceived any or was affected by any domestic violence.   There was also no evidence that I.R. was at substantial risk of perceiving domestic violence in the future.   There was no evidence of domestic violence during the preceding two years, in that Mother and Father were not living together.   Hence, even if I.R. ever witnessed any domestic violence, it was well in the past, and could not support a finding that at the time of the hearing I.R. was suffering physical harm from domestic violence or at substantial risk of suffering such harm.   There also was no evidence that domestic violence would occur in the future, in that Mother and Father did not intend to resume living together.   Mother clearly indicated that she did not want to be around Father.   Thus, there was no evidence of a risk of harm to I.R. in the future arising from domestic violence.   Mere speculation about what may happen in the future does not constitute substantial evidence of risk.  (In re James R., supra, 176 Cal.App.4th at p. 137;  In re David M., supra, 134 Cal.App.4th at p. 830.)

Domestic violence must affect a child or the child must perceive it to warrant dependency jurisdiction over the child.  (In re Alysha (1996) 51 Cal.App.4th 393, 398.)   A domestic violence allegation in a dependency petition that “does not allege that the violence was perceived by or affected the child” does not support a cause of action for “failure to protect” as required by section 300, subdivision (b).  (Ibid.) Thus, on this basis alone, there is insufficient evidence to support the trial court's finding that taking jurisdiction was permissible based upon the allegations of domestic violence in paragraph b-3 in the amended petition.

In any event, there is little in the record to suggest that there was any domestic violence between Father and Mother.   The proffered evidence consisted of statements Mother made to a CSW when Mother was not under oath and for which there was no corroborating evidence.   The factual allegation recounted only Mother's statement to a CSW that Father had once hit her in the eye with his fist.⁸  According to the CSW, Mother said her eye became swollen shut as a result and she went to a hospital emergency room for care.   Although the CSW asked Mother to provide a copy of the hospital record to corroborate the statement, no such documentation is included in the record on appeal.   The only documentation was the April 2007 police report from contact with Mother as the result of a call about a suspicious female climbing a fence into someone's backyard.   Mother told the police she was getting away from an argument with Father.   She did not complain of any injuries and the police report stated that they did not observe any evidence of injuries.   Facts related to the 2007 police report were not included in the factual allegations of domestic violence in the petition.

It is well-settled that “substantial evidence is not synonymous with any evidence.  [Citations.]  A decision supported by a mere scintilla of evidence need not be affirmed on appeal.”  (In re Savannah M., supra, 131 Cal.App.4th at p. 1393, italics added.)   Here, at most, only a scintilla of evidence was presented in support of the allegation that domestic violence ever occurred.   No evidence was presented to show that I.R. was present during or otherwise perceived any domestic violence between Mother and Father.   In summary, for the foregoing reasons, we conclude that substantial evidence does not support the trial court's finding that jurisdiction was warranted under section 300, subdivision (b), on the basis of Father's failure to protect I.R. from harm from domestic violence between Father and Mother.

We acknowledge that at the core of the dependency statutory scheme is protection of the best interests of the child.  (In re Kieshia E., supra, 6 Cal.4th at p. 84 (dis. opn. of Kennard, J.).)   Additionally, because the juvenile court is in a better position to assess the evidence in light of all the circumstances of the case, rarely will the court's decisions be disturbed on appeal.  (In re David H., supra, 165 Cal.App.4th at p. 1633.)   We recognize that the reports before the juvenile court in this case were replete with repetitions of the opinions of Grandmother, Aunt and Mother that Father was bipolar and paranoid and Mother's claims regarding domestic violence.   The evidence in support of a jurisdictional finding, however, must be substantial evidence, that is, evidence that is credible, reasonable and of solid value, and not speculative.  (In re J.K., supra, 174 Cal.App.4th at p. 1433;  In re Savannah M., supra, 131 Cal.App.4th at p. 1393.)   For the reasons we have previously discussed, we have determined that substantial evidence does not support the jurisdictional findings under the facts of this case.   Accordingly, we conclude that the jurisdictional orders must be reversed.   It follows that the dispositional orders must also be reversed, in that the juvenile court had no jurisdiction to issue them.  (In re James R., supra, 176 Cal.App.4th at p. 137;  In re David M., supra, 134 Cal.App.4th at p. 833.)

C. Permanent Restraining Order

A juvenile court is authorized to issue restraining orders protecting a child who is the subject of dependency proceedings and the child's parent, legal guardian, or current caretaker, under section 213.5.⁹  The court's authority begins after a petition has been filed and ends when the petition is dismissed or dependency is terminated. (§ 213.5, subd. (a);  Cal. Rules of Court, rule 5.630.)   The court must find that the person to be restrained has previously engaged in or threatened one or more of the restrained activities.   (See In re Cassandra B. (2004) 125 Cal.App.4th 199, 211-213.)   The activities that may be restrained are those set forth in section 213.5, subdivision (a).¹⁰  The activities include, but are not limited to, “molesting, attacking, striking, sexually assaulting, stalking, or battering” the person to be protected.   We review the juvenile court's findings as to the allegations on which the application for the restraining order are based under the substantial evidence standard.  (Cassandra B., supra, at pp. 210-211.)

The evidence offered by Mother as the basis for the restraining order was very limited.   Her application for the restraining order alleges that Father “caused one or more of the persons to be protected to fear physical or emotional harm, as described in item 7.” Item 7 states:  “On April 12, 2009, [Father] went to the family home without being invited.   While at the residence, [he] exhibited paranoid behavior by repeatedly telling the maternal great grandparents and maternal grandfather that they were tracking him and were responsible for putting hidden cameras on him and that they wouldn't leave him alone.   The maternal grandfather repeatedly asked [Father] to leave the residence, but he would not do so;  [Father] only left after all of the maternal relatives left the residence.”

The persons to be protected were Mother, I.R., maternal grandmother, maternal grandfather, and maternal uncle.   Only two of the listed persons were mentioned in the evidentiary basis for the restraining order:  maternal grandmother and maternal grandfather.

The orders requested included the following:  (1) Father “must not harass, molest, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, destroy the personal property of, disturb the peace of, keep under surveillance, or block movements of any” of the protected persons;  (2) Father “must not contact (either directly or indirectly), or telephone, or send messages, mail, or e-mail to any” of the protected persons “except for brief and peaceful contact as required for court-ordered visitation of children ․ “;  and (3) Father “must stay at least 100 yards away from [the p]rotected persons,” their residences, workplaces, and vehicles, and from I.R.'s school or place of child care.

The only facts alleged as the basis for the restraining order were as to a single incident on April 12, 2009, at the home of maternal relatives.   Neither Mother nor I.R. is alleged to have been present;  the record reveals no evidence that either of them was present.   Mother did not have personal knowledge of the events alleged as the basis for the restraining order.   Mother did not allege the home was also her residence, and nothing in the record supports such a conclusion.   Father's alleged actions were limited to going to the home of maternal relatives and making statements to the effect that some of them were spying on him.   The allegations did not include any statement or action by Father related to Mother or I.R. There is no allegation that Father used force or threat of force to enter the home.

The facts that DCFS argues support the restraining order include many facts other than the facts about the April 12, 2009 incident on which the order was based.   DCFS asserts Mother had told the court that she feared Father, Father had previously physically abused her, and in December 2008, Father had displayed paranoid behavior by keeping I.R. “with him in a shed all day” rather than taking him to school, and Father became enraged when Grandmother questioned his behavior and tried to kick down her door.   Contrary to the evidence, DCFS asserts that Father went to the maternal relatives' home to find Mother because he did not know Mother's address.   No evidence suggests, and Mother did not allege, that in the April 2009 incident, Father went to the maternal relatives' home looking for Mother.

As we previously discussed with regard to the court's jurisdictional finding on the domestic violence allegation in b-3, the evidence is insufficient to support a finding that Father previously abused Mother.   As to the December incident, the court-approved mental health diagnostician, Dr. Fairbanks, reported that Father gave a rational explanation for keeping I.R. out of school and that Grandmother may have overreacted.   Scabies is commonly recognized as a highly contagious condition.   That Father might attempt to enter Grandmother's home when she locked him out appears more reasonable when the evidence is taken into consideration that Grandmother's home was also the residence for Father and I.R. and where clothes and other items I.R. might need were housed.   The conclusions reportedly expressed by Mother, Grandmother and Aunt that Father was bipolar or paranoid do not constitute any credible diagnosis of any alleged mental illness.   As we previously determined, substantial evidence did not support a conclusion that Father suffered from serious mental illness.

DCFS makes a conclusory argument that Father's behavior during the alleged April 2009 incident fell within the definition of “molest,” as that term is defined in a dictionary.   There is no citation to legal authority that supports a finding that Father's behavior or course of conduct qualifies as a basis for the grant of the restraining order.

We conclude that substantial evidence did not support a finding that the alleged actions and statements of Father constituted a proper basis for issuance of the restraining order.   The order cannot stand.  (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1512;  In re Cassandra B., supra, 125 Cal.App.4th at pp. 210-211.)

DISPOSITION

The jurisdictional order declaring I.R. a dependent of the juvenile court is reversed.   The subsequent dispositional orders and family law custody order are vacated.   The permanent restraining order issued on May 27, 2009 also is reversed.

We concur:

FOOTNOTES

FN1. Further statutory references are to the Welfare and Institutions Code unless otherwise identified..  FN1. Further statutory references are to the Welfare and Institutions Code unless otherwise identified.

FN2. Father said Mother had told him she was 19 years old and in college..  FN2. Father said Mother had told him she was 19 years old and in college.

FN3. Although the record indicates that DCFS asked Mother to provide a record of the hospital visit, we found no such hospital report in the record.   We also did not find a copy of a police report of the interview at the hospital..  FN3. Although the record indicates that DCFS asked Mother to provide a record of the hospital visit, we found no such hospital report in the record.   We also did not find a copy of a police report of the interview at the hospital.

FN4. In the report, the CSW noted “it was difficult to read the medical notes,” but the CSW “gathered” the information from the medical reports as summarized in the report..  FN4. In the report, the CSW noted “it was difficult to read the medical notes,” but the CSW “gathered” the information from the medical reports as summarized in the report.

FN5. In closing argument, counsel for Mother asked the juvenile court to dismiss the domestic violence allegation in b-3.   Counsel represented that Mother stated it was a one-time incident, occurring on April 6, 2007 and, though Father exhibited paranoid behavior and hallucinations, Father has not exhibited any aggression or violent behavior.   Mother's counsel requested the court, at a minimum, to strike the sentence in b-3 stating that “the mother failed to take action to protect the child․”  The court sustained b-3 with no alteration..  FN5. In closing argument, counsel for Mother asked the juvenile court to dismiss the domestic violence allegation in b-3.   Counsel represented that Mother stated it was a one-time incident, occurring on April 6, 2007 and, though Father exhibited paranoid behavior and hallucinations, Father has not exhibited any aggression or violent behavior.   Mother's counsel requested the court, at a minimum, to strike the sentence in b-3 stating that “the mother failed to take action to protect the child․”  The court sustained b-3 with no alteration.

FN6. More detailed facts about Mother's application and affidavit for the restraining order are set forth in the discussion, post, of Father's challenge to the restraining order..  FN6. More detailed facts about Mother's application and affidavit for the restraining order are set forth in the discussion, post, of Father's challenge to the restraining order.

FN7. DCFS summarized Father's medical record reports in an information for court report filed on February 11, 2009.   According to the summary, only one of the physicians mentioned bipolar disorder in a diagnostic note, and that note was for a single visit to Dr. Gonzalez at Family Care Specialists in July 2008, in which Father's chief complaint was trouble sleeping and anxiety.   The note appeared to be more of a question, than an actual diagnosis.   It read “GAD/Depression ? Bipolar.”   There was no note that, for example, the physician had referred Father to a psychiatrist for further evaluation or prescribed medication.   DCFS stated that staff left a message for Dr. Gonzalez for clarification “as it was difficult to read the medical notes.”   Review of the record on appeal did not reveal that DCFS ever obtained such clarification..  FN7. DCFS summarized Father's medical record reports in an information for court report filed on February 11, 2009.   According to the summary, only one of the physicians mentioned bipolar disorder in a diagnostic note, and that note was for a single visit to Dr. Gonzalez at Family Care Specialists in July 2008, in which Father's chief complaint was trouble sleeping and anxiety.   The note appeared to be more of a question, than an actual diagnosis.   It read “GAD/Depression ? Bipolar.”   There was no note that, for example, the physician had referred Father to a psychiatrist for further evaluation or prescribed medication.   DCFS stated that staff left a message for Dr. Gonzalez for clarification “as it was difficult to read the medical notes.”   Review of the record on appeal did not reveal that DCFS ever obtained such clarification.

FN8. Mother did not give any sworn testimony during the proceedings.   She gave a declaration under penalty of perjury in her application for the restraining order.   Her sworn statement was that Father “caused one or more of the persons to be protected to fear physical or emotional harm, as described in item 7.” Item 7 pertains only to Father's visit to the maternal relatives' home on April 12, 2009..  FN8. Mother did not give any sworn testimony during the proceedings.   She gave a declaration under penalty of perjury in her application for the restraining order.   Her sworn statement was that Father “caused one or more of the persons to be protected to fear physical or emotional harm, as described in item 7.” Item 7 pertains only to Father's visit to the maternal relatives' home on April 12, 2009.

FN9. As DCFS points out, section 304 authorizes a juvenile court in a dependency proceeding to issue a restraining order under section 213.5 or Family Code section 6218.Section 304 provides in pertinent part:  “After a petition has been filed pursuant to Section 311, and until the time that the petition is dismissed or dependency is terminated, ․ [t]he juvenile court, on its own motion, may issue an order as provided for in Section 213.5, or as described in Section 6218 of the Family Code. The Judicial Council shall adopt forms for these restraining orders.”.  FN9. As DCFS points out, section 304 authorizes a juvenile court in a dependency proceeding to issue a restraining order under section 213.5 or Family Code section 6218.Section 304 provides in pertinent part:  “After a petition has been filed pursuant to Section 311, and until the time that the petition is dismissed or dependency is terminated, ․ [t]he juvenile court, on its own motion, may issue an order as provided for in Section 213.5, or as described in Section 6218 of the Family Code. The Judicial Council shall adopt forms for these restraining orders.”

FN10. Section 213.5, subdivision (a), provides:  “After 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, upon application in the manner provided by Section 527 of the Code of Civil Procedure, the juvenile court may issue ex parte orders (1) enjoining any person from molesting, attacking, striking, sexually assaulting, stalking, or battering the child or any other child in the household;  (2) excluding any person from the dwelling of the person who has care, custody, and control of the child;  and (3) enjoining any person from behavior, including contacting, threatening, or disturbing the peace of the child, that the court determines is necessary to effectuate orders under paragraph (1) or (2).   A court may also issue an ex parte order enjoining any person from contacting, threatening, molesting, attacking, striking, sexually assaulting, stalking, battering, or disturbing the peace of any parent, legal guardian, or current caretaker of the child, regardless of whether the child resides with that parent, legal guardian, or current caretaker, upon application in the manner provided by Section 527 of the Code of Civil Procedure.”.  FN10. Section 213.5, subdivision (a), provides:  “After 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, upon application in the manner provided by Section 527 of the Code of Civil Procedure, the juvenile court may issue ex parte orders (1) enjoining any person from molesting, attacking, striking, sexually assaulting, stalking, or battering the child or any other child in the household;  (2) excluding any person from the dwelling of the person who has care, custody, and control of the child;  and (3) enjoining any person from behavior, including contacting, threatening, or disturbing the peace of the child, that the court determines is necessary to effectuate orders under paragraph (1) or (2).   A court may also issue an ex parte order enjoining any person from contacting, threatening, molesting, attacking, striking, sexually assaulting, stalking, battering, or disturbing the peace of any parent, legal guardian, or current caretaker of the child, regardless of whether the child resides with that parent, legal guardian, or current caretaker, upon application in the manner provided by Section 527 of the Code of Civil Procedure.”

PERLUSS, P. J. WOODS, J.