Opinion
F075898
03-28-2018
In re L.C. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. A.B. et al., Defendants and Respondents; L.C. et al., Appellants.
Kimball J.P. Sargeant, under appointment by the Court of Appeal, for Appellant L.C. Darlene Azevedo Kelly, under appointment by the Court of Appeal for Appellants M.B., S.B., and A.B. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent. Matthew I. Thue, under appointment by the Court of Appeal for Defendant and Respondent Jeremy B. No appearance by Defendant and Respondent A.B.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 17CEJ300088-1, 17CEJ300088-2, 17CEJ300088-3, & 17CEJ300088-4)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Brian M. Arax, Judge. Kimball J.P. Sargeant, under appointment by the Court of Appeal, for Appellant L.C. Darlene Azevedo Kelly, under appointment by the Court of Appeal for Appellants M.B., S.B., and A.B. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent. Matthew I. Thue, under appointment by the Court of Appeal for Defendant and Respondent Jeremy B. No appearance by Defendant and Respondent A.B.
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This appeal arises out of a juvenile dependency action. Appellants are minors, L.C. (now 14 years old), M.B., (now 13 years old), S.B. (now 12 years old), and A.B. (now six years old) (collectively, the children). The children's mother, A.B. (mother) has also appealed; her appeal is pending separately (case No. F076040). The children's father, Jeremy B. (father), has joined in the children's appeal.
L.C. filed a separate brief from M.B., S.B. and A.B., but raises the same issues.
The children contend on appeal the juvenile court erred by sua sponte amending the dependency petition, prejudicing them in the process. We find no error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Detention
The Fresno County Department of Social Services (department) received a referral March 8, 2017, alleging L.C. reported at school that she was sexually abused by her father. According to L.C., she awoke the previous night being touched on her vagina over her clothes by father and touched skin to skin between her anus and vagina. L.C. said such touching had occurred a couple of months earlier as well. L.C. did not tell her mother about the incidents, as she did not think mother would believe her. L.C. felt safe in the home only if mother was also home.
Police officers spoke to mother, who did not believe father had touched L.C. inappropriately. Mother said she was taking a bath at the time the most recent incident was said to have occurred and, because she left the door to the bathroom open, would have seen father go into the girls' bedroom. Mother said father was a veteran who suffers physically and mentally and was being seen by Veteran Affairs for his mental health. He takes approximately 10 to 12 different psychiatric medications to help him sleep at night. According to mother, father had difficulty getting upstairs where the girls' bedroom is located, and sleeps downstairs in the living room. Mother said L.C. had some mental health issues and was cutting herself about three to four months earlier. Mother said she was always home and would make sure she did not leave L.C. alone with father. She also said she would put a lock on L.C.'s door. Mother said she would also move S.B. into the boys' room and put a lock on that door, and then move the boys into the master bedroom.
S.B., who shared a bedroom with L.C., said she did not notice anyone coming into her room the previous night. The boys, M.B. and A.B., denied having been touched inappropriately by anyone, and felt safe in the home. Father denied the allegations.
Mother was scheduled to leave town March 11, 2017, to go to Arizona to help her brother move and would be back in a week.
On March 23, 2017, a social work investigator made a home visit and reported that the upstairs of the home was dirty, cluttered and filthy. The girls' bedroom had a broken bed without a mattress. The entry of the bathroom from the master bedroom was caked with dog feces, which mother explained had occurred when the children locked the dog in the master bedroom during the week she was in Arizona. According to mother, the master bedroom was not dirty, and the children caused it to be dirty and messy the week she was not home. Mother said the children do not listen when she tells them to clean up.
On March 24, 2017, the department filed a Welfare and Institutions Code section 300 petition alleging father sexually abused L.C. (count d-1), that mother failed to protect L.C. from the sexual abuse (count d-2), and that the three younger siblings were at risk of being sexually abused (count d-3).
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
At the detention hearing March 27, 2017, the juvenile court found a prima facie showing that the children were described by section 300, that continuance in the home was contrary to the children's welfare, and that there was a substantial danger to the physical and emotional health of the children if left in mother and father's physical custody. The children were ordered removed from mother and father's home, and temporary placement, care, custody, and control was vested with the department. Supervised visits were ordered between mother and the children; supervised visits for father were ordered with the three youngest children. Jurisdiction and Disposition
Before the contested jurisdiction and disposition hearing, mother submitted a statement of contested issues, in which she alleged the department had not presented sufficient evidence to sustain the single count pertaining to her, count d-2, and requested the children be placed with her under a plan of family maintenance.
The report prepared in anticipation of the hearing scheduled for June 20, 2017, reported that mother and father were no longer residing together; that mother continued to live in the family home; that father was living with his mother; and that the family's source of income included father's veteran's benefits. The report stated the children were physically healthy and had a bond with mother. The younger three children appeared to have a bond with father. Mother and father both wished to reunify with the children and said they needed counseling in order to deal with the allegations and the fact that the children were removed from their care. While the three youngest wished to return home, L.C. did not.
Mental health assessments for the children recommended therapy for L.C., S.B. and A.B. The children's reported symptoms included anxiety, anger, and depression.
The department recommended the children be removed from mother and father's care. The report stated that mother and father claimed to be participating in recommended services, but had not completed any services as of yet.
At the contested hearing held over the course of June 20-23, 2017, the department submitted on the reports. The juvenile court accepted a stipulation that the youngest three children wanted to return home. The juvenile court also accepted the stipulation that mother had been cooperative in general throughout the case, and in particular with the safety plan during the "emergency removal period."
A social worker testified she was assigned the case on May 5, 2017, and had not been to mother's house at any time. To the best of her knowledge, father had moved out of the family home after the children were detained, but she had not verified where father was currently residing. The social worker stated there was a possible danger to the children if they were placed with mother that day. The department was concerned that father may have unauthorized contact with the children as mother stated she continued to be in a relationship with him. The department was also concerned because there were other people living in the home who had not had background checks.
The social worker reported that, according to the mental health assessment, A.B. had been traumatized by being removed from mother's home. The department had not assessed the home since others had also moved in and were residing with mother.
The department's concerns about returning the children to mother under family maintenance included unauthorized contact with father, as mother admitted providing transportation to father for his services; other people living in the home who have not been cleared by the department; the inability of the department to view the home; the previous unsanitary and filthy housing arrangements for the children; and the concern that mother was still in a relationship with father.
Mother testified that L.C.'s allegations that father touched her inappropriately were serious, but that L.C. never told her about them and mother did not recall telling anyone she did not believe L.C. Mother could not say whether the allegations were or were not true, and said she was not taking sides other than to make sure her younger children were safe. Mother said she never observed any inappropriate behavior on father's part that led her to suspect anything. Mother said father was living with his parents since the end of March and had not been back since. According to mother, she has two adult nephews living with her because she "worr[ies]" when she is alone.
Mother testified that she was willing to participate in all services offered, was currently taking parenting classes, and would obey all court rules, including visitation orders regarding father, if the juvenile court returned the children to her. Mother said she would not leave her children unattended and would provide locks on the inside of the bedroom doors for her daughters. Mother insisted her house was clean.
Mother was concerned that she might not be able to control L.C., as she and M.B. were sometimes very violent with each other. During one fight in January of 2017, the hinges were torn off doors as L.C. and M.B. fought and slammed each other into the doors. Mother testified that the bedroom doors to the girls and boys bedrooms are now "gone." In another fight in October 2016, L.C. put M.B.'s head through a double-pane window. Mother testified that L.C. had actually punched mother while she was trying to stop a fight between L.C. and M.B.
M.B. testified that he thought L.C. was lying. According to M.B., on the night in question, he was awake almost until midnight watching television. M.B. testified the television was in the hallway and he could see it from his bedroom, which did not have a door. M.B. testified he never saw father come up the stairs. He also testified father would have had a difficult time getting over A.B., who was lying in the doorway of the girls' bedroom to watch television.
The department requested that count d-2 be withdrawn and that the juvenile court find counts d-1 and d-3 true, arguing that it had shown by a preponderance of the evidence that L.C. was sexually abused by father and the siblings were at risk of abuse. Counsel noted mother was still having contact with father, taking him to his visits and parenting class, and had not yet shown she could protect the children from father.
Mother's counsel argued that mother did not know for sure what transpired between father and L.C., but knew for sure that L.C. never told her about any inappropriate touching and she never saw any evidence of such. Counsel noted that, once mother knew about the allegations, she cooperated fully and there was insufficient evidence to remove the children from her care. Counsel requested the three younger children be returned to mother with a plan of family maintenance. Counsel requested that, if necessary, the juvenile court trail the matter briefly and order the department to inspect her home in order to allow for family maintenance. According to counsel, mother was participating in all services offered to her.
In its findings, the juvenile court noted the family had a long history of 19 child welfare referrals between 2006 and 2016, some substantiated, describing, inter alia, a dirty home in which the children were always hungry, physical abuse of L.C. by an aunt with mother's knowledge, inappropriate care and discipline while in a homeless shelter, drug abuse by mother, and physical violence between the children. The juvenile court characterized the household as "incredibly dysfunctional" "to the point of disturbing," and that the instant trial "paints a picture of a home in chaos." As noted by the juvenile court, initial investigators in the current case found the home in complete disarray and in a similar condition two weeks later, even though, at that point, the family was "under the scrutiny" of the department. The juvenile court recalled the testimony of violence between L.C., M.B. and mother, and wondered "[w]here does all this violence come from." The juvenile court found "bizarre" the testimony of mother and M.B. about watching television, which was in the hallway, from various rooms until early morning or until M.B. "'passed out'", with other children sleeping in doorways and on the floor. The juvenile court noted mother's lack of independence and strength, as reflected in her lack of control of the household and in having her two nephews living with her. The juvenile court also noted father's mental health issues and his use of multiple psychiatric medications.
The juvenile court accepted the department's request to withdraw count d-2 in the petition, as there was no evidence mother knew about the event occurring the night before the referral was made, or that there was more than one occurrence. The juvenile court found the remaining counts, d-1 and d-3, true by a preponderance of the evidence as established by the department's reports.
On its own motion, the juvenile court then added new allegations that the children were at risk of harm because mother failed or was unable to protect her children from domestic violence in the home, particularly violence between the siblings and violence by L.C. against mother (count b-1), and that mother failed to maintain an orderly home environment and structure and was unable to keep peace in the home and appropriately discipline the children (count c-1).
DISCUSSION
As stated above, at the close of evidence at the jurisdiction hearing, the juvenile court sua sponte amended the petition to include additional allegations: that mother failed or was unable to protect her children from domestic violence in the home, and that she failed to maintain an orderly home environment, putting the children at risk. The children contend the juvenile court abused its discretion by sua sponte amending the petition without providing advance notice and an adequate opportunity to be heard, and that it was a material variance resulting in prejudice to them.
We note as an initial matter that counsel for the children did not object to the amendments at the jurisdiction/disposition hearing. Because no due process challenge was raised in the juvenile court, it may not be raised for the first time on appeal. (E.g., In re Brian K. (2002) 103 Cal.App.4th 39, 42 [failure to raise due process challenge in the juvenile court forfeited the issue on appeal]; 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."].)
The children contend there was no opportunity to object below, but fail to adequately explain why not. The children were represented by counsel throughout trial and at the time the court announced its ruling, but did not object at the hearing or bring a motion after the hearing. (See In re Daniel C. H., supra, 220 Cal.App.3d at p. 836 [father failed to object to amendment to conform to proof either at § 387 hearing or dispositional hearing].) Had counsel done so, the trial court would have had an opportunity to consider their argument that the allegations were a material variance requiring further notice and an opportunity to be heard.
In any event, we conclude the children's contentions are without merit. "[T]he ability to amend according to proof plays an important role in the overall dependency scheme." (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1041.) "[A]mendments 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. [Citation.]" (Id. at p. 1042.) "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, fn. omitted.) For instance, as the juvenile court explained in In re Jessica C., if a petition alleges only subdivision (d) of section 300 sexual abuse grounds for dependency jurisdiction, and the court found the allegations not to be true, the juvenile court could not properly permit amendment of the petition to allege emotional damage under subdivision (c) of section 300 on the theory that any child who made such allegations was obviously emotionally abused. (In re Jessica C., supra, at p. 1042, fn. 14.) As the court explained, "Such a tactic would be nothing more than a cheap way to establish dependency without giving the parent adequate notice of dependency under an emotional abuse theory." (Ibid.)
Here, respondent notes that, while count d-2 was dismissed, counts d-1 and d-3 were found true, and the children's appeal should be dismissed as non-justiciable, as the juvenile court made its jurisdictional finding on other grounds uncontested by the children. There is no dispute that "[w]hen a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence," and that "the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence. [Citations.]" (In Alexis E. (2009) 171 Cal.App.4th 438, 451; accord, In re I.A. (2011) 201 Cal.App.4th 1484, 1491-1492.)
Nonetheless, a reviewing court has discretion to consider the merits of an appeal that challenges fewer than all the juvenile court's jurisdictional findings, and will generally exercise that discretion when the jurisdictional finding "'(1) serves as the basis for dispositional orders that are also challenged on appeal [citation]; (2) could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings [citations]; or (3) "could have other consequences for [the appellant], beyond jurisdiction" [citation].'" (In re M.W. (2015) 238 Cal.App.4th 1444, 1452, quoting In re Drake M. (2012) 211 Cal.App.4th 754, 762-763.)
The children argue there was no opportunity to present evidence on the new allegations and the parties were therefore prevented from arguing or presenting evidence that there was a reasonable alternative to the children's removal from mother's custody. As argued by the children, since mother was a "nonoffending" parent, the children could only be removed from her care if there was no reasonable means to protect them. Reasonable means can be shown by removing the offending parent from the home or allowing a nonoffending parent to retain physical custody as long as the parent presents a plan acceptable to the court to show he or she is able to protect the children from harm. (§ 361, subd. (c)(1)(A) and (B).)
But nowhere do the children demonstrate how the juvenile court's detriment finding removing the children from mother's care is not supported by substantial evidence. An appealing party bears the burden of showing there is no evidence of a sufficiently substantial nature to support the removal order. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.)
Here, there was full opportunity to litigate the issue of whether the children should be returned to mother's care with family maintenance services versus being removed with family reunification services. The department's recommendation was always that the children be removed from mother's care and reunification services offered. All parties were on notice of the issues well in advance of the combined jurisdiction and disposition trial. At trial, mother's counsel made a clear argument in favor of return.
Finally, the juvenile court's finding that the children should not be returned to mother at this time was not based on its own findings under section 300, subdivisions (b) and (c). Often the same facts can support jurisdictional findings under various subdivisions. For instance, in In re R.V. (2012) 208 Cal.App.4th 837, 849, the juvenile court found the jurisdictional allegations of sexual abuse by father affirmed removal from mother on grounds that she did not believe the abuse occurred. Here, the juvenile court found mother's lack of independence and strength, her continued relationship with father, and her sometimes "bizarre" testimony all contributed to the finding that the children were at risk of harm of sexual abuse by father and could not be returned to mother with family maintenance services.
Thus, even were we to agree the juvenile court should not have sua sponte made new and materially different jurisdictional findings without first providing notice and an opportunity to be heard on those issues, the children can show no prejudice. The issue of detriment was fully litigated, and all of the evidence relevant to that issue was already before the juvenile court, independent of the juvenile court's additional jurisdictional findings.
DISPOSITION
The orders of the juvenile court are affirmed.
/s/_________
FRANSON, Acting WE CONCUR: /s/_________
PEÑA, J. /s/_________
SMITH, J.