DFCS Online Policies & Procedures

  DFCS Online Policies & Procedures

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Handbook 9: Court Related Issues
9-14 Restraining Orders

 

Court Related Issues
9-14  Restraining Orders
Reference Points
Overview
Types of Restraining Orders
Handout  - Common Questions about Protective and Restraining Orders (English-Spanish-Vietnamese
Online Self Help for Restraining Orders
Security Staffings
Restraining Orders for a Non-Custodial Parent
Restraining Order for a Dependent Child
Restraining Order for a Social Worker
Restraining Order for a Collateral Service Provider
Modification of a Restraining Order
Assistance for Obtaining a Domestic Violence Restraining Order
Other References


Reference Points
Effective Date: TBA
Last Updated: 6/11/09
 Legal Basis:
Popup Window Welfare and Institutions Code (WIC) § 213.5
Popup Window Family Code § 6250
Popup Window Penal Code (PC) § 136.2
Popup Window Code of Civil Procedures (CCP) § 527.6
Popup Window WIC § 15657.03
Popup Window California Rules of Court 5.630
 Non CWS/CMS Forms:
MS Word Security Incident Report (SCZ1617A)
PDF

Application and Affidavit for Restraining Order— Juvenile (JV-245)

 CWS/CMS Forms:
bullet Services Management Section: Contact Notebook


Overview  

A Restraining Order is an order a judge makes to protect individuals from the actions of another, which can be spoken, written, or physical.  It is meant to protect an individual from being physically abused, threatened, stalked, or harassed.   Restraining Orders may be issued through Juvenile Dependency and Delinquency Courts, Family Law Court, Criminal Court, Probate Court or Civil Court.

Other options for protection are to request a probation or parole officer to include a no-contact order as part of an individual's probation or parole release orders.  Also, the social worker may request that County Counsel write a letter to a threatening party's attorney.

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Types of Restraining Orders  
  • Restraining Order - Juvenile
    • Protects dependent children, caretakers, other children residing in the home, parent, legal guardian, caretakers, regardless of whether they are residing with the child or not. (WIC § 213.5)
    • A Restraining Order issued from Dependency Court may restrain or enjoin contact between the restrained person and the persons to be protected; may exclude the restrained person from the home; may limit visitation or make an order for no visitation; and may make an order for no harassment.

 

  • Domestic Violence Restraining Order
    • An individual can ask for a Domestic Violence Restraining Order if:
      •  A person has abused the individual, and
      • The individual:
        • Has a close relationship* with the person who abused her/him (married or registered domestic partners, divorced, separated, dating or used to date, live together or used to live together*), or
        • Is related (parent, child, brother, sister, grandmother, grandfather, mother-in-law, son-in-law) the the person that abused her/him or
        • Has a child with the person who abused her/him.

      * The relationship has to be more involved than just roommates.

    • An application for a DV Restraining Order may be filed by the mother's attorney or may be filed by the mother in family court or juvenile court, if the mother needs a restraining order for domestic violence and her children have been removed from her care. (Family Code § 6250)

     

 

  • Criminal Court -
    • Criminal Court Restraining Orders take precedence over any other Restraining Order.  Though other courts may issue concurrent restraining orders, if the criminal court restraining order is more restrictive, that is the order that takes precedence.

 

  • Restraining Order to protect the social worker and the social worker's immediate family

    • May be requested only if a parent of a dependent child actually threatens a social worker with physical harm.  (WIC § 304.5)

 

  • Civil Harassment Restraining Order
    • These cases entail parties that are not related and/or do not have a familial relationship or children in common.  A Civil Restraining Order protects any person who has suffered harassment by any other person. (CCP § 527.6 )

 

  • Elder or Dependent Adult Abuse Restraining Order (WIC § 15657.03)
    • An individual can ask for an Elder or Dependent Adult Restraining Order if:

      • The individual is 65 or older, or is between 18 and 64 and has certain disabilities, and
        • The individual is a victim of:
          • Physical or financial abuse,
          • Neglect, abandonment or
          • Treatment that has physically or mentally hurt the individual.

 

  • Workplace Violence Restraining Order
    • A individual may ask for a Workplace Violence Restraining Order if the individual:
      • Is an employer, and
      • Seeks a restraining order to protect an employee* who has suffered violence or a real threat of violence at the workplace.

        * An employee cannot ask for a Workplace Violence Restraining Order.

 

A protective order is an order a Judge makes to protect a witness or victim of a crime.

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Handout - Common Questions about Protective and Restraining Orders  

Common Questions about Protective and Restraining Orders

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Online Self Help for Restraining Orders   For further information about and obtaining a restraining order click here for the California Courts Self Help Center.
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Security Staffings  

DFCS staff may request a Security Staffing at any time there is a safety concern regarding themselves, clients or collateral service providers.  To request a Security Staffing, contact:

Larry Merkur, SSPM, Safety Committee Chair

373 W. Julian, 4th floor

(408)501-6725

Larry.Merkur@ssa.sccgov.org

Any time a safety incident occurs, the involved staff person must report the incident on the Security Incident Report (SCZ1671A), develop a safety plan with his/her supervisor and have the plan signed by the bureau SSPM.  SSPMs may do security staffings for staff in their bureaus, but they must contact the Safety Committee Chair after one serious incident or three (3) less serious incidents, where more resources must be brought to bear such as special parking, restraining orders, etc.

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Restraining Order for a

Non-custodial Parent

 

If the social worker learns that a non-custodial parent is being threatened and needs a restraining order, the social worker:

  • Advises the parent to consult her/his attorney regarding a restraining order.
    • Social workers shall not use the threat of removing a child from the home or the threat of not returning a child to the home of the parent, if a parent does not cooperate to obtain or enforce a restraining order.
    • If a parent is pro per, tell the parent that she/he can go either to Juvenile Court or Family Court to seek a Domestic Violence Prevention Order or Juvenile Restraining Order.
  • Tells the parent that she/he may make a police report.
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Restraining Order for a Dependent Child  

If the social worker learns that a dependent child's safety is being threatened and a restraining order is necessary, the social worker:

  • Documents the threat and threatening behavior.
    • Give a detailed description of what happened, who did it, who witnessed it and how the social worker found out about it.
  • Notifies the social worker supervisor and determines the appropriate clinical plan of action.
  • Contacts County Counsel
  • Contacts the child's attorney.

 

See Court Communication Regarding Restraining Orders - Juvenile Court

 

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Restraining Order for a Social Worker  

If the social worker or any member of the social worker's family is being threatened in conjunction with the provision of services to a dependent child, the social worker:

  • Documents the threat or threatening behavior.
    • Keep copies of written messages and make a copy of any messages on answering machines along with the dates received.
  • Notifies the social work supervisor.
  • Makes a report to the San Jose Police Department and Santa Clara Sheriff's Office.
    • Give a detailed description of what happened, when it happened, who did it, who witnessed it and how the social worker found out about it.
    • Ask for the police report number and, when completed, obtain a copy of the official police report.
    • Documents all contacts with law enforcement in the Contact Notebook.
    • The social worker makes the report, even if the worker is not frightened.
  • Notifies County Counsel who prepares the JV 245 and Restraining Order for the court to sign, if issued.
  • Prepares a report to court detailing all facts that evidence the need for a restraining order.
    • Attach any police reports to the report.
    • Give a detailed identifying information regarding the person to be restrained and the person to be protected including:
      • Name, gender, height, weight, hair color, eye color, race, age, DOB, address, phone, job title, place and address of work, work phone, work address, work hours, driver's license number, license plate, license number, make and model of care, SSN, scars or tattoos, aliases, whether the person owns a gun, prior criminal history involving violence.
  • Requests that County Counsel provide a certified copy of the restraining order.
  • Ensures that the Office Manager Coordinator (OMC), supervisor, and SSPM have a copy of the restraining order for enforcement purposes.
    • The practice at DFCS is for County Counsel to send a filed, endorsed copy of the restraining order to the social worker and for the social worker to further disseminate it.
  • Files a copy of the Restraining Order in the case file.


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Restraining Order for a Collateral Service Provider  

If the social worker learns that a collateral service provider is being threatened and may need a restraining order, the social worker:

  • Informs the service provider that neither County County nor the Department of Family and Children's Services can obtain a restraining order to protect the provider.
  • Suggests that the provider contact his/her supervisor and/or his/her agency attorney.
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Modification of a Restraining Order  

If a social worker determines that there is a reason to modify a Work Place Violence Restraining Order or a restraining order that was issued for the protection of another social worker, the following steps are taken prior to requesting the modification.


The social worker who makes the determination that the restraining order should be modified:

  • Schedules an Employee Safety Staffing to discuss the reason for the modification.
    • Contact the Chair of the Worker Security Committee (408)501-6725 to schedule an expanded security staffing.


  • Follows the recommendations that are developed in the Employee Safety Staffing.

 

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Assistance in Obtaining a Domestic Violence Restraining Order  
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Other References  
popup2 Online Self Help for Restraining Orders
bullet2 OPP Chapter 4-4.2: Intensive Upfront Services Collaborative (Domestic Violence Advocates)
bullet2 OPP Chapter 22-5:  Domestic Violence Services
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