Opinion
B227446
11-02-2011
In re W.M., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent; W.M., Respondent. v. K.T., Defendant and Appellant.
Joel F. Block, under appointment by the Court of Appeal, for Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Respondent, Los Angeles County Department of Children and Family Services. M. Elizabeth Handy, under appointment by the Court of Appeal, for Respondent, W.M..
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK64822)
APPEAL from an order of the Superior Court of Los Angeles County. Marguerite Downing, Judge. Reversed and remanded.
Joel F. Block, under appointment by the Court of Appeal, for Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Respondent, Los Angeles County Department of Children and Family Services.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Respondent, W.M..
Appellant K.T. (mother) appeals from the September 9, 2010 order sustaining a Welfare and Institutions Code section 300 petition as to her son, W.M. Mother contends: (1) she was denied due process as the result of the trial court granting W.M.'s request to amend the section 300 petition according to proof at the jurisdictional hearing; (2) the jurisdictional findings were not supported by substantial evidence; and (3) the dispositional order was not reasonably necessary. We conclude mother was denied due process and reverse on that basis.
All future undesignated statutory references are to the Welfare and Institutions Code.
The respondent in this case is the minor, who sought the amendment at the jurisdictional hearing. The Department of Children and Family Services (DCFS) does not take any position on mother's lack of notice contention. Father, who submitted on the petition, is not a party to the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and father were in a relationship for two months when mother became pregnant with W.M. They never married and father learned of W.M. about a month after he was born in June 2000. Mother and father shared equal custody of W.M. but they did not get along and mother did not get along with the woman father married in 2003 (stepmother). Beginning in April 2002, mother and father began accusing one another of general neglect and physical abuse of W.M. Most of the accusations were determined to be unfounded, but in August 2006 a physical abuse allegation against father resulted in DCFS initiating a case, which was later terminated. Also in 2006, father and stepmother obtained a restraining order against mother. From December 2008 until February 2009, W.M. received mental health services. Those services ended when father refused to provide consent. The therapist recommended individual and family counseling.
In March 2010, DCFS received a report that stepmother punched W.M. in the chest as punishment for getting a bad grade. On April 12, 2010, W.M. was home alone with stepmother when she grabbed his arm and then pushed him to the floor, causing his tooth to chip. That evening, W.M. collected his things and ran away, back to mother's home. Mother reported the incident to DCFS. Father and stepmother both denied using any physical punishment with W.M. and suggested to the social worker who interviewed them that mother was putting W.M. up to making the abuse allegations. At a Team Decision Making meeting on April 29, 2010, W.M. maintained that he had been physically abused by father and stepmother while father and stepmother continued to deny the allegation. That day, DCFS detained W.M. from father and placed him with mother.
On May 4, 2010, a section 300 petition was filed. Paragraph a-1 alleged that stepmother physically abused W.M. on two occasions and that father failed to protect W.M.; paragraph a-2 alleged that father physically abused W.M.; paragraphs b-1 and b-2 repeated these factual allegations. There were no allegations against mother in the petition. At the detention hearing that day, mother and father were each appointed counsel. Although the petition did not include any allegations against her, mother's counsel entered a general denial on her behalf. The juvenile court found a prima facie case that W.M. was a dependent child under section 300, subdivisions (a) and (b); it ordered W.M. detained from father and released to mother. Father was given monitored visits and reunification services; mother was given family maintenance services and the matter was continued for a jurisdictional hearing on June 1, 2010.
In its report for the jurisdictional hearing, DCFS found the allegations of abuse by father and stepmother inconclusive. Father and stepmother continued to deny the abuse allegations and maintained that mother was fabricating them. Father believed mother wanted full custody of W.M. so that father would have to pay child support; father wanted equal custody so that he would not have to pay child support. W.M. told the social worker that he did not feel safe spending the night at father's home; he never told father what stepmother was doing because he feared father would not believe him. According to the report: "However, there is a long history of abuse allegations for this family. The child appears to be experiencing trauma and conflict. He is adamant that he does not wish to visit with his stepmother at this time although he does wish to visit with his father only on a day basis. . . . [W.M.] does not appear to have been coached . . . . [¶] . . . [¶] . . . Due to the abuse and overwhelming family conflict the Department will recommend continued jurisdiction." The jurisdictional hearing was continued first to July because father had a family emergency in Texas, and then to September.
At the end of July, W.M. told the social worker that he did not want to visit father because, "He looks at me funny and if I was at his house and he knew that I had been suspended from the summer school program he probably would have hit me or yelled at me." A month later, W.M. told the social worker that he wanted monitored visits with father but no visits with stepmother.
At the hearing on September 9, 2010, DCFS and mother took the position that W.M. was credible and the petition should be affirmed as pled. W.M.'s counsel asked "the court to conform to proof based on all the exhibits and all the information that has been presented thus far, it appears to me that the root of all of these problems is that essentially a family law conflict, a conflict between mother and father, and I believe there is sufficient evidence for the court to conform the petition to the evidence that is before the court." Father joined in W.M.'s request to amend the petition and agreed to submit to the court's jurisdiction. Mother objected on due process grounds, among others, arguing that as a nonoffending parent she did not have adequate notice of these new allegations against her. Over mother's objection, the juvenile court dismissed paragraphs a-1, a-2 and b-2 of the petition and amended paragraph b-1 to read:
"The child [W.M.'s] father and his mother have a history of ongoing conflict which has caused [the child] to become unstable in his family environment, including acting out inappropriately, and which continue to cause him emotional harm and trauma. [¶] The ongoing conflict between parent[s] has caused [the child's] refusal to continue to reside with his father and parents' ongoing conflict endangers child's physical and emotional health and safety, placing the child at risk for physical and emotional harm. Danger, physical abuse, and failure to protect."As amended, the juvenile court sustained paragraph b-1 of the petition. The child was released to mother. Mother filed a timely notice of appeal.
DISCUSSION
A. Notice
Mother contends she was denied due process because she did not have notice of the allegations made against her for the first time in the amended petition. We agree.
Dependency proceedings are commenced with the filing of a petition. (§§ 325, 332; see In re Jessica C. (2001) 93 Cal.App.4th 1027, 1035 (Jessica C.) [distinguishing original, subsequent and supplemental petitions].) The petition must include "[a] concise statement of facts, separately stated, to support the conclusion that the child upon whose behalf the petition is being brought is a person within the definition of each of the sections and subdivisions under which the proceedings are being instituted." (§ 332, subd. (f).) If a parent denies the allegations of the original petition, "the court must hold a contested hearing and determine whether the allegations in the petition are true." (Cal. Rules of Court, rule 5.684(a).) Notice of this hearing, known as a jurisdictional hearing, must include a copy of the petition (§ 291, subd. (d)(7)) and be given at least 10 days prior to the date of the hearing. (Id., subd. (c)(2).)
" 'A parent's fundamental right to adequate notice and the opportunity to be heard in dependency matters involving potential deprivation of the parental interest [citation] has little, if any, value unless the parent is advised of the nature of the hearing giving rise to that opportunity, including what will be decided therein. Only with adequate advisement can one choose to appear or not, to prepare or not, and to defend or not.' [Citation.]" (In re Wilford J. (2005) 131 Cal.App.4th 742, 746 (Wilford J.), italics added; see also Jessica C., supra, 93 Cal.App.4th at p. 1037 ["In the initial 'pleading' stage, the role of the petition is to provide 'meaningful notice' that must 'adequately communicate' social worker concerns to the parent"].)
In Wilford J., the trial court converted a noticed pretrial conference which was not attended by the father, into an unscheduled jurisdictional hearing. (Wilford J., supra, 131 Cal.App.4th at p. 754.) The appellate court found father's due process rights had been denied, although the error was waived by father's participation in subsequent dependency proceedings without objection. In Jessica C., the petition alleged that the father "penetrated" the minor whereas the minor testified that he "touched" her; the trial court denied county counsel's request to amend the petition according to proof by substituting the word "touching" for the word "penetrating." The appellate court reversed, finding the variance between pleading and proof was not so wide as to violate due process. (Jessica C., supra, 93 Cal.App.4th at pp. 1041-1042.)
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." (Jessica C., supra, 93 Cal.App.4th at p. 1042.) But "[i]f 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, citations omitted.) 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., at p. 1042, fn. 14, italics omitted.)
In dependency proceedings, amendments according to proof are not the only way to bring new or different allegations against a parent. "In any case in which a minor has been found to be a person described by Section 300 and the petitioner alleges new facts or circumstances, other than those under which the original petition was sustained, sufficient to state that the minor is a person described in Section 300, the petitioner shall file a subsequent petition." (§ 342.) Additionally, a parent may petition for a change or modification of a prior order on the grounds of new evidence. (§ 388.) Thus, an amendment according to proof is just one way to establish dependency jurisdiction.
Here, as in the example given by the court in Jessica C., the petition alleged specific acts of abuse perpetrated by father and stepmother (in the Jessica C. example it was sexual abuse under section 300, subdivision (d), here it is physical abuse under subdivisions (a) and (b)). As in Jessica C., the trial court did not find the allegations to be true. In this case, the child (not DCFS) sought to amend the petition to allege that mother's failure to protect W.M. from the ongoing conflict between mother and father has caused W.M. emotional trauma, endangers W.M.'s physical and emotional health, and places W.M. at risk for "physical and emotional harm. Danger, physical abuse, and failure to protect." As in Jessica C., amending the dependency petition did not give mother adequate notice. This case is even more egregious because here, mother was not even named in the original petition. Thus, she had no notice that her own role as an alleged offending parent was to be addressed, let alone decided at the jurisdictional hearing. Under these circumstances, the variance between pleading and proof was so wide that it violated mother's due process to allow an amendment according to proof and the court should have refused it.
We do not address the propriety of filing a new petition containing allegations against mother.
None of the cases cited by W.M. in his respondent's brief compels a contrary result. In each, the parent was named in the original petition and the amendment did not present a new theory of dependency. Here, by contrast, mother was not named in the original petition and the theory of dependency vis-a-vis mother was necessarily new.
B. Sufficiency of the Evidence and Dispositional Orders
Inasmuch as we have reversed the dependency findings as they relate to mother, mother's contentions regarding the sufficiency of the evidence to support those findings and the reasonableness of the dispositional orders as they relate to mother are moot and we need not address them.
DISPOSITION
The order is reversed to the extent it finds W.M. comes within subdivision (b) of section 300, as alleged against mother in paragraph b-1 of the petition. We express no opinion on the effect of the dismissal of paragraphs a-1, a-2 and b-2, and remand to the trial court for further proceedings.
RUBIN, J. WE CONCUR:
BIGELOW, P. J.
FLIER, J.