Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK48511, Emily Stevens, Judge.
Anna L. Ollinger, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Fred Klink, Deputy County Counsel, for Plaintiff and Respondent.
KLEIN, P. J.
T.W.S. (father) appeals an order declaring K.S. and H.S. dependent children within the meaning of Welfare and Institutions Code section 300, subdivisions (c) and (j). Father contends, and we agree, father cannot be found to be an offending parent without notice of the dependency allegations. We therefore reverse the jurisdictional finding as to father and construe the juvenile court’s order directing father to participate in counseling as an order directing the Department of Children and Family Services (DCFS) to provide father referrals for the court-ordered counseling and affirm the order as modified.
Subsequent unspecified statutory references are to the Welfare and Institutions Code.
BACKGROUND
1. The dependency history of the family.
In July of 2002, two-year-old K.S. and her siblings, 11-year-old T.S. and 10-year-old R.S., were found to be dependent children based on sustained allegations that mother inappropriately disciplined T.S. and R.S., and the parents have created a detrimental home environment as a result of domestic violence and on-going conflicts regarding the care and custody of the children. The juvenile court placed T.S. and R.S. with father and placed K.S. with mother.
In March of 2007, the juvenile court sustained a dependency petition which alleged father and mother have a history of dysfunction which has created a detrimental environment for the children. On January 14, 2008, the juvenile court terminated jurisdiction in that case and awarded father custody of T.S. and R.S. and awarded mother custody of then seven-year-old K.S. and five-year-old H.S..
2. The current allegations that K.S. and H.S. are dependent children.
On April 28, 2008, DCFS received a report that mother’s mental health was deteriorating and she had threatened a neighbor with a gun. Mother was uncooperative with a DCFS investigation and presented symptoms of irrational behavior. DCFS found K.S. had excessive absences from school and H.S. had excessive tardiness. Father reported mother failed to provide dental care for the children. DCFS detained K.S. and H.S. from mother’s care and placed both children with father.
On May 9, 2008, DCFS filed a dependency petition which alleged in paragraph (b)(1) that mother exhibited mental and emotional problems, including paranoid aggressive behavior, which rendered mother incapable of providing regular care and supervision. Paragraph (b)(2) alleged mother failed to provide a sanitary home environment for the children. Paragraph (b)(3) alleged mother failed to obtain dental care for K.S. and H.S..
Mark Rosenblatt, Psy.D., indicated in a letter dated June 16, 2008, that he was concerned and confused by the current charges of mother’s incompetence based on mental illness. Rosenblatt assured the juvenile court that mother did not suffer from a mental illness and indicated “the core concern in this case... is the highly unresolved, obstinate, and conflicted relationship between [mother] and [father]. They both must agree to set an adult example in service to their children’s healthy future in order to relieve their children of current persistent, intense frustration and emotional pain.”
Miriam Shenfeld, Ph.D., reported that K.S. presented a complex array of problematic behaviors. Shenfeld found “[w]ithout question, many of K.S.’s difficulties either arise from or are exacerbated by the intense conflict between her parents.” Shenfeld concluded K.S.’s “prognosis... would be greatly improved if her parents could find ways to minimize their struggles with each other and the children... and to support each other’s parenting rights and roles.”
At the jurisdiction hearing, the juvenile court received the social reports into evidence. T.S., father and mother testified.
On the second day of the hearing, which was not attended by father, the juvenile court heard the argument of counsel, then noted the parties had agreed to dismiss paragraphs (b)(2) and (b)(3), leaving only paragraph (b)(1). The juvenile court pointed out that Dr. Shenfeld indicated no emotional or physical abuse of the children had been observed. Further, DCFS intervention apparently had been triggered by a dispute mother had with a tenant. The juvenile court found no evidence to support the allegation in paragraph (b)(1) that mother was unable to provide the children care and regular supervision.
The juvenile court noted the dependency proceedings brought “[a]ll of the hurts, all of the anger, all of the complaints... the parents [had] against each other” to the surface. The juvenile court recalled mother’s testimony that parental interaction causes K.S. to act out. Further, Dr. Rosenblatt’s letter indicates “the core concern in this case is... the highly unresolved, obstinate and conflicted relationship between [mother] and [father].” The juvenile court found “the relationship between the parents is not helping K.S. to resolve her problems.”
The juvenile court concluded the blame did not lie entirely with mother as alleged in the dependency petition. The juvenile court indicated it would amend the allegations to conform to proof to state, as relevant here, that parental conflict is exacerbating K.S.’s problems and is posing a risk to H.S. within the meaning of section 300, subdivisions (c) and (j). The juvenile court ordered K.S. and H.S. released to mother.
In response to objections regarding the wording of the sustained petition, the juvenile court indicated the evidence showed K.S. needed to be in counseling with father and father was not in any therapeutic relationship that would assist him to resolve his problems with mother. The juvenile court stated it needed jurisdiction to insure that father did something to remedy the situation.
When the juvenile court asked if mother and father had ever participated in conjoint counseling, mother indicated she had set up numerous appointments with counselors approved by father’s insurance but father refuses to attend. Mother indicated father is now 71 years old, “he’s had plenty of time to go to counseling to resolve issues with me. He’s not going to do it.” The juvenile court indicated it did not harbor any “illusion about... get[ting father] to do something no one else has been able to get him to do. I’m just going to try one more time.”
County counsel asked: “conjoint between parents?” and the juvenile court responded yes and indicated father must be “interviewed so he can figure out what are his issues.” The minute order also states: “Other Counseling: all counseling per case plan.” The case plan states father is to participate in conjoint counseling with K.S. if requested by the therapist, individual counseling to address inability to parent effectively with mother, and conjoint counseling with mother.
The minute order for the proceedings of August 11, 2008, indicates father did not appear at the hearing but was on the telephone with his counsel during the final portion of the hearing to set up a visitation schedule.
Father filed a notice of appeal from the order that he participate in counseling.
CONTENTIONS
Father contends the amendment of the dependency petition to add an allegation against father violated due process. Father also contends it was an abuse of the juvenile court’s discretion to order father to participate in conjoint counseling with mother.
DISCUSSION
1. The jurisdictional finding as to father must be set aside for lack of notice.
Father asserts he was a non-offending parent with respect to the dependency petition filed May 9, 2008. The juvenile court dismissed the allegations of the filed petition and sustained a new petition naming father as an offending parent without giving father notice or an opportunity to defend. Father asserts that, although amendments to conform to proof are favored, they are not permitted where the variance between pleading and proof violates due process. (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1042.) Father concedes that, regardless of the outcome in father’s appeal, the children will remain dependents based on the jurisdictional finding as to mother. (In re Alysha S. (1996) 51 Cal.App.4th 393, 397.)
We agree an impermissible variance between pleading and proof occurred in this case. Father was not given any notice that dependency allegations might be sustained against him.
DCFS argues father forfeited this contention by failing to object in the juvenile court. DCFS notes that, after county counsel asked the juvenile court to sustain the petition as conformed to proof, father’s counsel “joined” and added that father had some issues that were not resolved in the previous case and father believed the juvenile court should take jurisdiction in this case. DCFS concludes father should be deemed to have forfeited the right to challenge the juvenile court’s jurisdictional finding. (In re S.B. (2004) 32 Cal.4th 1287, 1293.)
This argument is not persuasive. At the time father’s counsel joined in the request to take jurisdiction, mother was the only parent named in the petition and the juvenile court had not indicated it intended to add father to the petition as an offending parent as part of the process of conforming it to proof. The amendment without any notice represented a fundamental defect in the proceedings which precludes application of the forfeiture rule. (In re Janee J. (1999) 74 Cal.App.4th 198, 208-209; In re Stacy T. (1997) 52 Cal.App.4th 1415, 1424.)
DCFS also asserts there is no reasonable probability of a different result had father been given advance notice of the amendment. DCFS claims father should not have been surprised when the juvenile court relied on the parental relationship in asserting jurisdiction because father had been named in dependency petitions filed in 2002 and 2007. DCFS argues father would not have defended differently had he known the amended allegations. (Jessica C., supra, 93 Cal.App.4th at p. 1042.)
DCFS’s assertion father would not have defended differently had he known the new allegations overlooks that the petition filed May 9, 2008 made no allegations against father. Father therefore had no obligation to defend at all. Had he been named as an offending parent, he certainly might have proceeded differently. Indeed, father did not even attend the hearing at which the juvenile court asserted jurisdiction. The fact father had been named in previous dependency petitions is entirely irrelevant.
DCFS also complains that father’s notice of appeal does not mention the juvenile court’s order sustaining the petition as amended to conform to proof. Rather, father’s notice of appeal states he objects to the orders that he participate in “counseling and other court ordered programs.” However, the order that father participate in counseling depended on the juvenile court’s jurisdiction over father. Thus, the current contention falls within the ambit of the notice of appeal.
2. Order for counseling.
Father contends that, even if this court affirms the jurisdictional order, the order that father participate in conjoint counseling with mother should be reversed as an abuse of discretion. Father argues conjoint counseling with mother will be fruitless until mother has resolved her personal issues.
Because we reverse the jurisdictional finding as to father, we agree the juvenile court lacked jurisdiction to order father to participate in counseling. However, in order to effectuate the juvenile court’s intent, we construe the order as one directing DCFS to provide father referrals for counseling. This order was intended to promote K.S.’s best interests by reducing parental conflict and was reasonably calculated to accomplish that result. It cannot be said the juvenile court abused its discretion in making the order. (In re K.D. (2004) 124 Cal.App.4th 1013, 1018.) Whether father complies is another matter. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1365 [an unwilling or indifferent parent cannot be forced to comply with reunification services].)
DISPOSITION
The order declaring K.S. and H.S. dependent children is modified to strike the finding the children are dependent by reason of father’s conduct. The order directing father to participate in counseling is amended to direct DCFS to provide father referrals for counseling. As so modified, the order is affirmed.
We concur, KITCHING, J., ALDRICH, J.