Opinion
G055202
03-16-2018
In re M.K., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. RYAN K., Defendant and Appellant.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent. Karen J. Dodd, under appointment by the Court of Appeal, for Minor M.K.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16DP0673) OPINION Appeal from a judgment of the Superior Court of Orange County, Gassia Apkarian, Judge. Affirmed. Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent. Karen J. Dodd, under appointment by the Court of Appeal, for Minor M.K.
* * *
Ryan K. (father) appeals from the juvenile court's June 2017 judgment making jurisdictional findings and dispositional orders concerning his daughter M.K. (born September 2013). Father contends the juvenile court erred in allowing amendment of the Welfare and Institutions Code section 300 petition (all statutory references are to the Welfare and Institutions Code unless otherwise noted) after the close of the evidence. For the reasons expressed below, we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
The Orange County Social Services Agency (SSA) became involved with the family in June 2016. At the time, father and mother S.K. were separated and involved in a contentious custody battle over M.K. The parents lodged multiple allegations against each other between 2014 and 2016.
The parents shared custody, but in June 2016, father filed a request in family court seeking full custody. Five days after filing his request, father took M.K. to the emergency room for a child abuse assessment after noticing a bruise on M.K. He also requested that doctors run a drug screen test for the child. M.K. tested positive for marijuana and opiates. Father blamed mother, claiming she used drugs and consumed edible marijuana.
The social worker went to mother's residence two days later. She admitted prescription drug use to treat chronic back pain, and two prior arrests for driving under the influence (DUI). She had a three-year "peaceful contact" restraining order against father because he was "controlling and aggressive," but she relied on father for transportation to work and to take M.K. to preschool.
After the social worker arranged a team decision meeting with the parents on June 17, it still was unclear which parent exposed M.K. to drugs, and whether the exposure was intentional or accidental. Father claimed he had collected and secured M.K.'s urine in the hospital bathroom, but hospital records indicated a nurse performed the task. The parents failed to take M.K. to a pediatrician after the positive drug test. SSA determined a protective custody warrant was necessary because it was unclear how M.K. ingested the drugs, and there were domestic violence concerns.
On June 27, SSA filed a juvenile court petition (§ 300, subd. (b)) alleging M.K. was at substantial risk of physical harm or neglect in parents' custody based on her exposure to substance abuse. It cited a June 12 positive drug test and a history of domestic violence, which included father's arrest in January 2014. The petition alleged the parents had unresolved issues with substance abuse, mother had mental health issues, and the parents each had a criminal history, including a DUI conviction for mother and a petty theft conviction for father.
At the detention hearing, the social worker Lopez testified he found it suspicious that father requested a drug test when there was no other information the child had symptoms of drug ingestion, and he was concerned father fabricated the incident to win custody. But Lopez also was concerned because M.K. had made statements at her preschool about mother striking her, although staff had not seen any physical injuries. Lopez believed the substance abuse issue required further investigation and release to either parent posed substantial risk to M.K. Concerning placement, the paternal grandparents were not suitable because the paternal grandfather was currently on probation for obstructing a peace officer who attempted to arrest him on an Oregon warrant.
Mother asserted she felt threatened by father and described several domestic violence incidents. She also believed father deliberately gave M.K. drugs to win custody. Father, however, testified he requested a drug test because mother had a history of leaving out her medication and marijuana. Father acknowledged taking anger management classes because of mother's restraining order, and that he had been arrested five times for domestic violence with mother, although M.K. was not present during those incidents. He claimed mother had slapped him in the face in front of M.K. in February 2015. He smoked marijuana at night to get to sleep, but recently stopped because of the case, and felt it was unsafe for M.K. He denied having marijuana in his home when M.K. tested positive.
The court detained M.K. and placed her in a foster home. The court ordered monitored visits for the parents, and expressed concern father took the child to the hospital for an insignificant bruise and that father continuously examined M.K. for signs of abuse.
In the social worker's reports following the detention hearing, mother denied physically abusing father in the 2015 incident and claimed father fabricated the incident, which resulted in her arrest. She asserted father had done this in the past when in June 2012 he falsely reported she was suicidal, which resulted in a psychiatric hold. She conceded she had anxiety and situational depression, however. She described father as irrational, violent, and subject to mood swings, and she moved into a domestic violence shelter after separating from him.
Father continued to claim M.K. ingested drugs while with mother, and claim mother's substance abuse included opiates and heroin. He admitted serving a jail term in Oregon for identity theft, and acknowledged a former girlfriend obtained a restraining order against him in Oregon. Father also acknowledged he took medication to lessen the effects of his ADHD.
The social worker expressed concerns about father's credibility. Father admitted to mother in a recorded telephone conversation he provided the urine sample for the M.K.'s positive drug test. Father later recanted the statement, claiming he was pressured by mother to make the admission in the hope of reconciling. The social worker filed an amended petition reflecting father's admission.
Following a hearing on August 23, the juvenile court authorized SSA to release M.K. to mother with conditional release intensive supervision (CRISP) conditions. In a report dated September 22, the social worker recommended family maintenance services for mother and enhancement services for father.
On October 23, 2016, M.K. displayed "abnormal behavior" and did not sleep all night after a monitored visit with father. The following morning mother took the child to the hospital, where M.K. tested positive for amphetamines.
The social worker removed M.K. from mother and placed her again in a foster home. Mother accused father of intentionally giving the child his ADHD medication. Father denied the allegation, claiming the visitation monitor was within a foot of him during the visit, and food he brought was sealed in its original packaging.
In November 2016, SSA filed a second amended petition, which included the October 24 incident. The social worker's January 3, 2017, report recommended sustaining the petition and offering family reunification services to the parents.
In late January 2017, mother sought a new restraining order against father. She claimed that on January 24, father approached her at her apartment building, told her he had a gun, grabbed her purse and ran off. She stated father had sent her a social media message a day before the robbery asking whether she had recorded him, and she speculated he may have been after her phone. When arrested, father denied contacting her or stealing her purse.
On March 3, 2017, mother was arrested after father reported mother attacked him with a knife in a parking lot. Mother denied the allegation, and was released when law enforcement confirmed her whereabouts at the time of the alleged attack. She stated father was harassing her, changing her phone number and e-mail passwords, and ordering food to be paid by cash on delivery to her residence using an Internet phone number. Police investigators arranged for mother to make a covert call with father. She accused him of commandeering her cell phone, calling her at work, hacking her e-mail and social media accounts, and sending a food order to her home payable on delivery. Father initially denied the allegations, but then admitted sending the food to her home, obtaining her address and phone number through M.K.'s medical records, and contacting her cell phone provider to change her number. He admitted doing these things so that mother would call him, which he hoped would lead to a reconciliation.
At the March 2017 jurisdiction and disposition hearing, SSA continued to recommend family reunification services for both parents because it was unknown how the child consumed drugs. The social worker Lopez, father, mother, mother's therapist, and the paternal grandparents testified. The testimony addressed the myriad issues involving the family, and specifically who was to blame for the drugging incidents.
At the conclusion of the hearing, SSA argued the court should sustain the petition under section 300, subdivision (b), based on the parents' history of domestic violence, substance abuse, and risk of detriment based on M.K.'s positive test for drugs.
M.K., joined by mother, argued mother alone should have custody of M.K. based on father's abusive and vindictive behavior. They argued father had not progressed in his services and remained focused on preventing mother from having custody of M.K. The attorneys for both mother and M.K. asked the court to amend the petition to add allegations under section 300, subdivisions (a), (b), (e) and (i), addressing father's behavior and history. Father objected to the proposed amendments.
The juvenile court found father substituted his own urine in June 2016, and then poisoned M.K. with amphetamines in October 2016. The court also concluded mother's substance abuse problem appeared to be under control and it would not be detrimental to place M.K. with her. The juvenile court placed M.K. with mother in a confidential location, issued a no contact restraining order against father and ordered father not to contact mother other than through an attorney. The court removed custody from father with no enhancement services, and terminated father's visitation with M.K. because it was detrimental to her. The juvenile court also ordered a section 730 evaluation for father to determine whether he would benefit from services given his propensity for false allegations and violence. The juvenile court directed amendment of the petition to add allegations under section 300, subdivision (a). SSA filed a third amended petition conforming to the court's ruling and the juvenile court found the allegations of the third amended petition true.
II
DISCUSSION
Amendment of the Petition and Due Process
Father contends the juvenile court denied him due process when it amended the petition after the close of the evidence to include an allegation under section 300, subdivision (a). He complains he "was not given meaningful notice of these issues as [SSA] recommended placement with paternal relatives and reunification services, and minor's counsel waited until after the hearing to submit her proposal. Father had a right to respond to and litigate these issues . . . ."
In a juvenile case, the basic pleading device is the petition. (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1035-1038 (Jessica C.).) Section 332 requires a dependency petition to contain "[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.) Section 348 provides the Code of Civil Procedure relating to variance and amendment of pleadings in civil actions applies to juvenile dependency petitions and proceedings. Code of Civil Procedure section 473 provides a party may amend a pleading "in furtherance of justice" and leave to amend may be granted after the commencement of trial. (Code Civ. Proc., §§ 473, 576.) Former Code of Civil Procedure section 469 provides: "'No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it appears that a party has been so misled, the Court may order the pleading to be amended, upon such terms as may be just.'" (Harshad & Nasir Corp. v. Global Sign Systems (2017) 14 Cal.App.5th 523, 546, fn. 12; see In re Mariah T. (2008) 159 Cal.App.4th 428, 432, fn. 4 [court may amend a petition on its own motion].)
Amendments to conform to proof rest largely in the discretion of the trial court. The court's determination will not be disturbed on appeal unless it clearly appears the court abused its discretion. (Garcia v. Roberts (2009) 173 Cal.App.4th 900, 909.) There is no abuse of discretion "'unless by permitting the amendment new and substantially different issues are introduced in the case or the rights of the adverse party prejudiced.'" (Ibid.; In re Andrew S. (2016) 2 Cal.App.5th 536, 544, fn. 4 [juvenile court may allow amendments of jurisdictional allegations to conform to proof; basic rule is that amendments to conform to proof are favored and should not be denied unless the earlier pleading would have misled the adversarial party to its prejudice].)
SSA's second amended petition filed in November 2016, operative at the beginning of the trial, alleged jurisdiction under section 300, subdivision (b), which provides a child is within the jurisdiction of the juvenile court where the child "has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or legal guardian to supervise or protect the child adequately, . . . [or] by the inability of the parent or legal guardian to provide regular care for the child due to the parent's or legal guardian's mental illness, developmental disability, or substance abuse."
The second amended petition contained several specific factual allegations under the subdivision (b) heading. Father points to allegations b-8 and b-9. B-8 provided: "The mother [] took the child [] to the emergency room on October 24, 2016 due to concerns that the child was displaying abnormal behavior and was acting strange. The child [] was given a urine screen for drugs. The urine screen was positive for the presence of amphetamines and a confirmation test was positive for the presence of methamphetamines. The mother reported to Emergency Room staff that on October 23, 2016, the child returned from a monitored visit with the father that ended at 6:50 p.m. and that upon the child's return she was talking fast and appeared hyper. Social Worker I Luis Robles monitored the visit between the child and the father on October 23, 2016, and reported that the child slept during the ride home from the monitored visitation with father. The mother expressed concern that the father may have poured Vyvanse a drug, according to the mother was prescribed to treat father's ADHD symptoms, in the child's juice during the visit. The mother reported to Senior Social Worker Martha Garduno that the child was her hyper active self, 'running around' and 'normal' until around 10:00 p.m." B-9 provided: "The child has ingested two potentially lethal substances on two separate occasions and the child's parents' explanation is that the other parent is responsible."
As noted, the court subsequently amended the petition to add allegations under section 300, subdivision (a), and sustained the petition as amended. Section 300, subdivision (a), provides a child is within the jurisdiction of the juvenile court where the child "has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian." New allegation a-1 provided: "The child [] has suffered and there is a substantial risk that she will suffer serious physical harm non-accidentally inflicted upon the child by the child's father []. On October 24, 2016 the child [] tested positive for amphetamine after a visit with the father where he was allowed to prepare and provide food for the child. The father's intention was for the mother to lose custody of the child. Father has a history of attempting to get custody removed from the mother and has previously admitted to falsifying a prior drug test in June 2016." Allegation a-2 provided: "As a result of the methamphetamine ingestion the child [] suffered physical abuse in the form of extreme hyper activity, screaming, sleeplessness, hitting her head against the wall, on IV for 2 days, and sedatives [], and other abnormal erratic behavior which required the child to hospitalized for 2-3 days."
Father asserts "the juvenile court sustained a new" petition, and "based on those true findings, in substance if not in form, imposed [reunification] bypass provisions. This left father without the opportunity to prepare a defense to specifically address the new petition upon which the juvenile court ordered no services, no visitation, and no visitation by the paternal grandparents. Those findings and orders substantially contrasted from the concerns raised in the Second Amended Petition causing a lack of notice. As a result, father was misled in his defense and deprived due process."
The amendments did not deny father due process. As noted in M.K.'s brief, M.K.'s trial counsel advised the court and other parties at a January 2017 hearing the second amended petition did not "in any way address or possibly does not address the severity of the situation," and based on the evidence at the jurisdiction hearing could be amended to include (a), (e) and (i) allegations if "anybody had deliberately given the child drugs." M.K.'s lawyer stated: "I'm just putting everyone on notice that it could be at the close of the evidence for jurisdiction, that I would be asking to amend this what I would call a very weak and insufficient petition based on what we know on the case thus far. [¶] And in addition to that, possibly an (e) count. I'm not sure about the (e) count. But the (a) count and (i) count are very possible, and I just want to put people on notice that that could be a request made."
The second amended petition raised the issue of M.K.'s methamphetamine or amphetamine poisoning in October 2016, and noted it could not determine whether mother or father was responsible. Although the original petition did not allege one of the parents intentionally caused the ingestion, this was a possibility not negated by the original petition. Father was on notice the responsibility for this incident would be a significant issue at trial and he might have to defend his role in the poisoning incident. Indeed, father argued he was not culpable for M.K.'s positive drug tests. The original petition adequately communicated to father the factual issues involved in the case with enough particularity to permit him to meet the allegations. (In re J.T. (1974) 40 Cal.App.3d 633, 639.) Amending the petition to add allegations M.K. had suffered or was at risk of suffering serious physical harm from father's conduct did not raise a new and substantially different issue in the case, and did not prejudice father. (See Jessica C., supra, 93 Cal.App.4th at pp. 1042-1043.)
Father complains lack of notice deprived him of the ability to challenge the dispositional orders. But the court's dispositional orders flowed from its factual findings. Father must have understood if the juvenile court held him responsible for M.K.'s ingestion of drugs it might deny him custody (§ 361, subd. (c)(1) [clear and convincing evidence there is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned to parent]) and even visitation regardless of SSA's allegations and recommendations. The juvenile court, not SSA, was the trier of fact, and the court was responsible for arriving at a disposition in M.K.'s best interests based on its reasonable assessment of the evidence.
Father argues he might "have submitted on [SSA's] recommendations without a contested hearing" had he been "provided with notice he risked having no services" at the conclusion of the hearing. Father bases this argument on the incorrect assumption mother and M.K. would have submitted on SSA's recommendations. In any event, the court's disposition orders were not dependent on any particular jurisdictional allegation. The court was required to make the appropriate supervisory and visitation orders based on the evidence. (In re Briana V. (2015) 236 Cal.App.4th 297, 311 [the juvenile court is not limited to content of sustained petition when it considers what dispositional orders are in child's best interests and may consider the evidence as a whole].) Father could not assume the court's disposition orders would favor him after a trial on the subdivision (b) allegations. As SSA notes, "Father's very premise is faulty, as the unchallenged language of the section 300, subdivision (b) counts found in both the late 2016 amended petition and the ultimately sustained version contained numerous allegations as to Father's domestic violence, violation of court orders, and the injury to [M.K.] from the late October 2016 incident - allegations that, if adjudicated in a dim light as to Father, pointed to obvious bases for the now-challenged dispositional orders. . . . [W]hile obviously varying from SSA's recommendation, the court's dispositional orders fell well within the court's discretion."
Based on the evidence, the court ultimately accepted M.K.'s and mother's counsel's arguments concerning the risk posed by contact with father and the paternal grandparents. The court denied enhancement services for father. (See § 362, subd. (d) [juvenile court may make reasonable orders to the parents of the child as the court deems necessary and proper]; In re A.C. (2008) 169 Cal.App.4th 636, 643, fn. 5 [enhancement services are child welfare services offered to a parent not retaining custody designed to enhance the child's relationship with that parent].) The court cited the court's limited resources, noting services are provided "under the belief that the person is amenable to services," which the court could not find at this juncture. The court cited father's efforts to sabotage mother's custody and "habit of avoiding what the law and the courts say and order . . . ."
Father asserts he did not have meaningful notice to present evidence or argument in support of having visitation because it was not at issue during the adjudication, and he notes the social worker testified he would increase father's monitored visits if permitted. He complains he did not ask "any questions as to whether the social worker believed his contact with [M.K.] was detrimental."
Visitation is an issue in every dependency case, and any presumption of visitation is subject to consideration of the child's safety. (See § 362.1, subd. (a) [order placing a child in foster care and ordering reunification services shall provide for visitation between the parent and the child, but no visitation order shall jeopardize the safety of the child].) The juvenile court saw things very differently than the social worker did. As SSA observes, "Put bluntly, at the point the court found that Father poisoned his child despite the constraints of monitored visitation, the outright denial of such contact was not far behind." Under these circumstances, the absence of subdivision (a) allegations did not deprive father of notice that unfavorable visitation order was possible. It was the evidence at trial that led the juvenile court to reject SSA's recommendation concerning the appropriate dispositional orders.
Finally, the juvenile court had discretion to grant or deny grandparent visits under the original and amended petitions in M.K.'s best interests. (In re J.T. (2014) 228 Cal.App.4th 953, 961-64 [juvenile court may order nonparent visitation]; see § 361.2, subd. (i).) After hearing the evidence, the court denied visits after concluding the grandparents sided with father, had downplayed mother's concerns in the past, and were not sufficiently protective of M.K. Father received adequate notice to litigate this potential dispositional issue. The court's amendment did not prejudice father.
III
DISPOSITION
The judgment is affirmed.
ARONSON, J. WE CONCUR: MOORE, ACTING P. J. FYBEL, J.