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In re D.Y.C.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Feb 7, 2012
No. B233281 (Cal. Ct. App. Feb. 7, 2012)

Opinion

B233281

02-07-2012

In re D.Y.C., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.L.C. et al., Defendants and Appellants.

Gerard McCusker, under appointment by the Court of Appeal, for Defendant and Appellant D.L.C. Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant J.C. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Denise M. Hippach, Deputy County Counsel, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. CK 86122)

APPEAL from a judgment of the Superior Court of Los Angeles County, Marguerite Downing, Judge. Reversed.

Gerard McCusker, under appointment by the Court of Appeal, for Defendant and Appellant D.L.C.

Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant J.C.

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Denise M. Hippach, Deputy County Counsel, for Plaintiff and Respondent.

Mother and father appeal from the judgment entered by the juvenile court with respect to their minor daughter under Welfare and Institutions Code section 300. The court found the minor's testimony regarding alleged sexual abuse, alcohol abuse and domestic violence not credible and struck all of the allegations of the section 300 petition. Nevertheless, the court sua sponte purported to amend the petition to conform to proof by adding and sustaining a new allegation that the parents were neglectful in failing to obtain a mental health assessment and treatment for the minor's "undiagnosed mental health issues." We reverse, finding the parents failed to receive adequate notice and a reasonable opportunity to be heard concerning the new allegation in violation of their right of due process.

All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FACTS

The 11-year-old minor lived with her parents and adult siblings, J.C. and C.C. On January 10, 2011, a Los Angeles County Department of Children and Family Services (Department) emergency response children's social worker, accompanied by a sheriff's deputy, went to the family home to follow up on a referral to the effect that the minor had disclosed to the reporter that she was raped by her brother C.C. when she was six years old and that mother had responded by kicking C.C. out of the home when later told of the incident. The social worker found the minor at home with her adult brother, J.C. When interviewed, J.C. told the social worker the minor had never informed him she was sexually abused and the siblings got along very well. J.C. also advised he had noticed no significant change in the minor's behavior.

The social worker also interviewed the minor privately. The minor appeared surprised when the worker informed her of the referral. When asked if anything had happened between herself and C.C., the child replied "no." When asked how she felt about C.C., the minor said he was "fine" and that he and J.C. protect her. The minor denied that C.C. had ever touched her in a way that made her feel uncomfortable.

Before leaving the home, the social worker, who was male, asked the minor if she would be more comfortable speaking with a female, and the child replied, "I think I would be more comfortable."

The next day, January 11, 2011, a female social worker interviewed the minor in private at her middle school. The minor reported to this social worker that her 20-year-old brother, C.C., had "raped" her five years earlier when the minor was six years old. The minor stated she knew what rape was, saying, "Rape means when someone has sex with you against your will or when someone sexually assaults you." The minor said she had learned about rape from the television show America's Most Wanted, and from looking it up on the Internet. The minor reported that C.C. touched her body with his hands and put "his thing" inside her when no one was around. The minor could not recall the exact number of times C.C. "raped" her but said it was "multiple times."

The minor claimed to have told mother a year before the interview about the "rape" and said that mother "panicked." The minor stated that mother "took me to the room and pulled down my pants and asked me to show her where [C.C.] had touched me. I showed her and she was disgusted with my brother. She kicked him out of the house after I told her." However, according to the minor, mother later allowed C.C. to return to the home because he was "homeless."

The minor also reported that once, when she was eight years old, father tried to touch her breast and kissed her on the mouth two or three times. Father stopped kissing the minor on the mouth after she threatened to run away. The minor did not tell mother about the incidents with father. The child reported that father drank alcohol "a lot" and became angry and yelled at mother when he was intoxicated.

The minor told the social worker that on occasion she felt sad and depressed when she recalled "the incident." She also admitted she tried to hurt herself with a knife the previous year, but she did not do so because she was "scared" and "confused." She told the social worker at times she "wishe[d]" she was dead because she knew her family "w[ould] not miss her."

The child was placed immediately in foster care.

PROCEDURAL HISTORY

On January 14, 2011, the Department filed the section 300 petition under subdivisions (a) (serious physical harm), (b) (failure to protect) and (d) (sexual abuse) alleging sexual abuse by C.C. and father, alcohol abuse by father and domestic violence between the minor's parents. The minor was ordered detained and placed in a foster care home.

Mother denied that the minor ever told her that C.C. had sexually abused the minor or that mother kicked C.C. out of the home. Mother indicated that because C.C. had a history of drug abuse, the minor was never left alone with C.C. unless J.C. was also present. If J.C. was not available, mother would ask a neighbor to watch the minor. Mother indicated the minor did well in school and her teachers always had good things to say about the child. Mother was very surprised about the allegations concerning father. She stated that the minor was very attentive and playful with father; he worked very hard and always had been respectful toward the minor. Mother denied father ever treated the minor inappropriately and said the minor loved her father and would call him to ask when he would be home from work.

Father denied being aware of any sexual abuse of the minor by C.C. He also denied he or mother had ever asked C.C. to leave the house. Father was very surprised about the minor's allegations about him stating he only kissed his daughter on the cheek. He believed things were misinterpreted.

At the detention hearing, the dependency court ordered a mental health assessment for the minor to determine the appropriate treatment or services for the child. The court allowed the parents visitation, but only in a therapeutic setting, and further ordered father's visits to be monitored by a licensed clinical therapist.

In a jurisdiction and disposition report of February 8, 2011, the social worker described the family's problems that required intervention and the possible causes of those problems. These included the family's tolerance of "the perpetrator," C.C., the family's "poor communication skills" resulting in "a lot of yelling in the home," the parents' working long hours and their reliance on the older siblings to supervise the minor. The social worker observed that father "just provides for his family," leaving mother to be the disciplinarian, and that mother had been diagnosed with depression as a result of the family's losing their home, their having to file for bankruptcy and work being low.

The report noted, "it was determined that the minor would be at risk if she were released to either parent[] because both parents are denying having prior knowledge of the alleged sexual abuse by the adult sibling . . . ."

Father, mother and J.C. reported that the minor would come home with horrific stories of students doing things in the restroom, such as having sex, using drugs, offering her drugs, breaking needles and drinking the substances inside the syringes, and acting crazy during lunch. Mother stated that the minor reported her friends at school were being physically and sexually abused. J.C. thought perhaps the minor was making up stories for attention.

The Department expressed concerns about the minor's mental health. The Department reported that the minor had been exhibiting "unusual behaviors" since being removed from the home. The caregiver indicated the minor did not appear to have boundaries and would ask everyone for hugs; she walked around as if imitating a rabbit; and she stuffed her mouth with food until it would spill out from the sides. The social worker reported she was "unsure if the minor is able to distinguish reality from fantasy." The Department recommended that the juvenile court find all counts of the petition true and asked for an Evidence Code section 730 mental health evaluation of the minor.

At the time of the jurisdiction and disposition report, the Department had not yet enrolled minor in mental health services. As a result, the parental visitation in a therapeutic setting ordered by the court at the detention hearing had not yet taken place. Meanwhile, the Department had been pursuing options to provide permanency for the minor if the parents failed to reunify with her.

The dependency court held a pretrial resolution conference on February 8, 2011. Mother, joined by father, requested that the court order the Evidence Code section 730 mental health evaluation for the minor. The court denied this request and set the matter for a contested adjudication.

Subsequently, the Department submitted a last-minute information to the dependency court. The Department advised that the minor was receiving in-home mental health services and a psychiatric examination was being scheduled. The minor had "adjusted well to placement and [was] excelling in school." She was to be placed with her maternal aunt and uncle, who, the social worker noted, were willing to provide permanency for the minor if she failed to reunify with her parents.

At the contested jurisdiction hearing on March 23, 2011, the Department's counsel called the minor to testify in chambers. The minor testified she was touched by her father in a "private spot," which, the court noted, was "her joint area on her left-hand side where her hip and her joint connect." The minor also testified that her brother C.C. "raped" her. However, when asked by the Department's counsel what she meant by "raped," the minor answered, "Well, to be honest, I never really understood type of words like that. I just guessed what their [sic] mean. I only guessed them." She then went on to state that her brother C.C. "put his part on mine." When asked to demonstrate where C.C.'s "personal part" was located, the minor pointed to what would be the genital areas on a male. And, when asked to show where her personal part was, the minor pointed to her genital area. The minor testified this occurred in C.C.'s room in their old home when she was six and C.C. was 13. She stated it occurred "multiple" times in the morning after father and mother left for work, taking J.C. with them. She recalled she told mother about the touching in 2009 or 2010 and that mother "overreacted." Mother told father and then "kicked out" C.C. But, he returned a week or two later.

The minor testified she liked watching "America's Most Wanted." She began watching the show at age seven, and she liked it because it "scared" her. Besides mother, the minor said she told her best friend and her science teacher about what her brother and father did to her. The minor testified she told her teacher she was "traumatized," that "two people had raped me," but that she meant "one person and the other." She then testified she also told her two other best friends as well. Towards the end of her testimony, when questioned about "who else have you told?" the minor responded, "I'm scared."

Mother was present for the contested hearing but chose not to take the stand. Father chose not to appear or present evidence, but his counsel was present and pointed out the numerous respects in which the minor's testimony differed from or contradicted what the minor had reported to social workers. Father's counsel argued the minor lacked credibility and she appeared unable to separate fantasy from reality. Mother's counsel joined in those comments and noted that the child used language uncommon for a minor in describing the alleged events and was unable to recall crucial details concerning the claimed sexual abuse.

After argument by all parties, a discussion was held off the record. The court then issued its ruling, finding the minor not credible "even for the low burden of proof." The court dismissed all the counts pled in the petition. The court found inconsistencies in the record and in the child's testimony, and it concluded the claimed incidents were "more in fantasy than in reality." The court, however, added and sustained a new count "b-5," to the effect that the minor was at risk from mental health problems. Father's counsel objected to the court's adding and sustaining the new allegation, arguing, "It is a due process violation for the court to create an allegation out of whole cloth." The court overruled the objection and continued the matter for disposition.

The new allegation stated: "The child . . . has undiagnosed mental health issues, symptoms [that] include inappropriate behavior, food binging, lack of personal physical boundaries, depression and the inability to distinguish between truth and fantasy. Her parents . . . knew of these symptoms and have neglected to obtain appropriate mental health assessment and treatment for [the minor]. Such neglectful behavior in not obtaining needed mental health services . . . endangers the child's physical and emotional health and places the child at risk of physical and emotional harm, damage and danger."

Father's counsel argued that his client "was not noticed or interviewed regarding this allegation that the court has sustained, and there's no evidence that the minor cannot simply obtain mental health services through the help of her family without court jurisdiction."

The dependency court stated it was clear from the Department's report that "services should have been in place, and the parents should have known because they reported [the minor's] bizarre reality/fantasy discussions, and they did nothing."

In the interim, the dependency court ordered the Department to prepare a supplemental report addressing the possibility of a home-of-parent order, placing the minor with mother, and low cost or no cost referrals for father. The court amended its prior order for visitation only in a therapeutic environment so as to allow monitored visitation, with the Department having discretion to liberalize the visits.

Prior to the disposition hearing, the Department filed a last-minute information noting that, because mother had failed to enroll in classes such as "sexual awareness education," and because "the Department is still unsure if the minor was sexually abused by the father and the adult sibling," the Department would oppose placement of the minor with mother.

At the disposition hearing on May 6, 2011, counsel for the minor informed the juvenile court that the minor missed her parents and wanted to return home "today." The minor's counsel advised, however, that it would be in the child's best interest to complete the school year in her current placement with her aunt. Counsel for both parents asked that the minor be returned home. The court did not agree, and it declared the minor "a dependent of the court under [section] 300[, subdivisions] (a) through (j) [sic]." The court found there were no reasonable means to protect the minor without removal from the parents' home. The court ordered the minor to participate in an Evidence Code section 730 evaluation, and it ordered reunification services for both parents and monitored visitation. Both parents appealed from the dependency court's finding and orders.

CONTENTIONS

Mother contends that the amendment of the petition to add and find true a wholly new count under section 300, subdivision (b) violated the parents' right to due process, requiring reversal. Alternatively, she contends there was no substantial evidence supporting the sustained count. Finally, mother contends that the dispositional orders removing the minor from the home under section 361 and providing the parents with only monitored visits were excessively restrictive. Father joins in mother's contentions.

The Department asserts that mother has forfeited her right to challenge the juvenile court's amendment of the petition by failing to object in the court below. (See In re Wilford J. (2005) 131 Cal.App.4th 742, 754 ["An appellate court ordinarily will not consider challenges based on procedural defects or erroneous rulings where an objection could have been but was not made in the trial court"]; In re Daniel C. H. (1990) 220 Cal.App.3d 814, 836 ["where the parent chooses not to contest the amendments, the parent waives the right to complain of the issue on appeal"].) However, forfeiture is not automatic, and an appellate court has discretion to excuse a party's failure to raise an issue in a timely fashion. (See In re Wilford J., supra, at p. 754.) The purpose of the forfeiture rule is to call errors to the juvenile court's attention so they may be corrected. (Ibid. ) The forfeiture rule, moreover, will not be enforced when due process forbids it. (In re Jessica G. (2001) 93 Cal.App.4th 1180, 1190.) As we hold below, the court's orders deprived both parents of due process. Moreover, even if mother failed to object to the amendment in the juvenile court, father timely objected and called the error to the court's attention. The juvenile court thus was made aware of an objection to the amendment and had an opportunity to correct its mistake. The issue was thus preserved for appeal.

DISCUSSION


,

The Jurisdiction and Disposition Orders Violated the Parents' Right of Due Process

"Since the interest of a parent in the companionship, care, custody, and management of his [or her] children is a compelling one, ranked among the most basic of civil rights [citations], the state, before depriving a parent of this interest, must afford [the parent] adequate notice and an opportunity to be heard." (In re B.G. (1974) 11 Cal.3d 679, 688-689; see also In re Marilyn H. (1993) 5 Cal.4th 295, 306.) A parent whose child may be found subject to the dependency jurisdiction of the juvenile court has a due process right to be informed of the nature of the hearing, as well as the allegations upon which the deprivation of custody is predicated, so that the parent may make an informed decision whether to appear and contest the allegations. (In re Wilford J., supra, 131 Cal.App.4th at p. 751, citing In re B.G., supra, at pp. 688-689.) "Notice of the specific facts upon which removal of a child from parental custody is predicated is fundamental to due process." (In re Jeremy C. (1980) 109 Cal.App.3d 384, 397; see also In re Gault (1967) 387 U.S. 1, 33-34.) Notice at the time of the hearing on the merits is not sufficient; the parent is entitled to notice, in writing, "of the specific charge or factual allegations to be considered at the hearing" and "at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation." (In re Gault, supra, at p. 33.) The juvenile court cannot consider "unalleged actions" in making its jurisdictional findings. (In re J.O. (2009) 178 Cal.App.4th 139, 152, fn. 13.)

In dependency proceedings, as in civil law in general, "amendments to conform to proof are favored, and should not be denied unless the pleading as drafted prior to the proposed amendment would have misled the adversarial party to its prejudice." (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1042 (Jessica C.).) The juvenile court may properly permit amendment of a petition to "correct or make more specific" the factual allegations supportive of the offense charged so long as the very nature of the charge remains unchanged. (In re Man J. (1983) 149 Cal.App.3d 475, 481; In re Andrew L. (2011) 192 Cal.App.4th 683, 689; see § 348; Code Civ. Proc., § 469 et seq.; 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1215, pp. 649-650.) "If a variance between pleading and proof . . . is so wide that it would, in effect, violate due process to allow the amendment, the court should, of course, refuse any such amendment." (Id. at pp. 1041-1042.)

Explaining this concept, the Jessica C. court gave the following example: "[S]uppose a petition only alleges, under subdivision (d) of section 300, a variety of specific sexual acts perpetrated by a parent, but the trial judge does not find these are true. The county then attempts to amend the petition to allege serious emotional damage under subdivision (c) of section 300, based on the idea that any child who would make such allegations, even if false, has obviously been subject to emotional abuse. Such a tactic would be nothing more than a cheap way to establish dependency without giving the parent adequate notice of dependency jurisdiction under an emotional abuse theory." (Jessica C., supra, 93 Cal.App.4th at p. 1042, fn. 14.)

The Jessica C. illustration is similar to what took place here. Having found the existing allegations of the petition not true, the juvenile court (rather than the Department) sua sponte decided to recast the allegations to allege that the minor had an undiagnosed mental illness, which the parents should have recognized and for which they failed to seek treatment. Converting allegations concerning specified acts of sexual abuse, domestic violence and alcohol abuse into a failure to obtain medical treatment for an "undiagnosed mental illness" in the present case amounts to "nothing more than a cheap way to establish dependency without giving the parent[s] adequate notice of dependency jurisdiction." (Jessica C., supra, 93 Cal.App.4th at p. 1042, fn. 14.) The allegations in the original petition concerned specific acts of abuse wholly dependent upon the testimony of the minor. The parents' defense relied upon inconsistencies in the child's recounting of the alleged events and the sheer implausibility of her allegations. Had the parents received adequate notice of a new allegation that they failed to seek treatment for mental illness in their daughter, they undoubtedly would have presented a far different defense, such as by cross-examining the investigating social workers, none of whom apparently recognized the minor's supposed undiagnosed mental illness.

The court's amendment of a petition to conform to proof ordinarily is reviewed for an abuse of discretion. (Jessica C., supra, 93 Cal.App.4th at p. 1043; In re Man J., supra, 149 Cal.App.3d at p. 481.) In this case, however, the variance between pleading and proof was so wide that the court's fashioning a new allegation to conform to proof, without giving the parents prior notice or an opportunity to defend, violated the parents' right of due process. (In re J.T. (1974) 40 Cal.App.3d 633, 642.)

"In dependency proceedings, due process violations have been held subject to the harmless beyond a reasonable doubt standard of prejudice." (In re Justice P. (2004) 123 Cal.App.4th 181, 193; see also In re Daniel S. (2004) 115 Cal.App.4th 903, 912-913; In re Angela C. (2002) 99 Cal.App.4th 389, 391, 394.) On the record before us, we cannot conclude the error was harmless. We cannot speculate upon what evidence the parents might have submitted or what defense they might have raised had they received adequate notice of a claimed failure to seek adequate treatment for supposed mental illness in their daughter. (See In re Jessica G., supra, 93 Cal.App.4th at p. 1189; In re Sara D. (2001) 87 Cal.App.4th 661, 673.) The Department has not asserted or shown that the juvenile court's error was harmless beyond a reasonable doubt.

Because we find the violation of the parents' due process rights was not harmless beyond a reasonable doubt and requires reversal, we need not consider whether there was sufficient evidence to support the judgment or whether the juvenile court's orders were appropriate.

DISPOSITION

The judgment is reversed.

FLIER, J. WE CONCUR:

BIGELOW, P. J.

GRIMES, J.


Summaries of

In re D.Y.C.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Feb 7, 2012
No. B233281 (Cal. Ct. App. Feb. 7, 2012)
Case details for

In re D.Y.C.

Case Details

Full title:In re D.Y.C., a Person Coming Under the Juvenile Court Law. LOS ANGELES…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

Date published: Feb 7, 2012

Citations

No. B233281 (Cal. Ct. App. Feb. 7, 2012)