In re S.V. ( 2022 )

Filed 12/22/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re S.V., a Person Coming Under
the Juvenile Court Law.
HUMBOLDT COUNTY
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Plaintiff and Respondent, A163272
v.
H.P., (Humboldt County
Super. Ct. No. JV2000161)
Defendant and Appellant;
R.V.,
Defendant and Respondent.
Parents have a compelling interest in the companionship, care, custody,
and management of their children, which is “ranked among the most basic of
civil rights,” and before a parent is deprived of this interest, the state must
provide the parent with adequate notice and an opportunity to be heard.
(In re B.G. (1974) 11 Cal.3d 679, 688–689.) Parents have a due process right
to be informed of the nature of the proceedings and the allegations upon
which the deprivation of custody is predicated so that they can make an
informed decision whether to appear, prepare, and contest the allegations.
(In re Wilford J. (2005) 131 Cal.App.4th 742, 751.) “Notice of the specific
facts upon which the petition is based is necessary to enable the parties to
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properly meet the charges.” (In re Jeremy C. (1980) 109 Cal.App.3d 384,
397.)
H.P. (mother) appeals from jurisdiction and disposition orders finding
that S.V. (minor) came within the jurisdiction of the juvenile court on the
basis that she was suffering serious emotional abuse or was at risk of
suffering serious emotional abuse due to mother’s unsubstantiated belief that
R.V. (father) sexually abused minor. The Humboldt County Department of
Health and Human Services (Department) filed a petition alleging that minor
had been sexually abused by father. Mother was not named as an offending
parent in the petition. The juvenile court found that the Department failed
to prove the sexual abuse allegations against father. The court, however, did
not dismiss the petition. Instead, the court found that the evidence
supported jurisdiction based upon unpleaded allegations of emotional abuse
by mother, a position urged by minor’s counsel but opposed by the
Department. As a result of finding jurisdiction, the court subsequently
entered a disposition order.
We conclude that the juvenile court violated mother’s due process
rights when it established jurisdiction based on the conduct of a parent the
Department never alleged was an offending parent, and on a factual and
legal theory not raised in the Department’s petition. We reverse the
disposition order and jurisdiction finding as to mother and remand for
further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
I. Mendocino County Proceedings
The dependency petition at issue in this appeal was filed by the
Department in Humboldt County on November 10, 2020. However, the
family was previously involved in family law proceedings in Mendocino
2
County, and Mendocino County’s Department of Social Services, Family and
Children’s Services (FCS), previously investigated allegations that father
sexually abused minor. The Humboldt County Juvenile Court in this case
took judicial notice of the prior proceedings in Mendocino County and
admitted into evidence the Department’s reports and addendums regarding
the prior Mendocino County FCS investigations, which we now summarize.
A. Family Law Custody Proceedings
Father and mother, who met while father was vacationing in Vietnam,
were married in the United States in 2014. Minor was born in May 2014 as a
result of this union. In November 2018, father discovered mother kissing
another man in a car with minor in the car. Father filed a petition for
dissolution of marriage, and mother moved with minor from Ukiah to
Redwood Valley. Mother and minor lived with mother’s boyfriend, whom
mother had met two weeks prior.
Father’s petition sought sole legal and physical custody of minor, and
on November 20, 2018, he filed a request for a temporary emergency custody
order. Mother’s response asserted father was a chronic alcoholic, had been
abusive to her, and had physically and sexually abused minor. Over the
course of the next two years, in response to mother’s and father’s various
requests for temporary emergency custody modification orders and mother’s
request for a domestic violence restraining order (DVRO) alleging father
physically and sexually abused minor, Mendocino County family law judges
issued several temporary custody orders. The orders variously granted
temporary shared physical custody; temporary sole physical custody to
mother with either suspended visitation for father pending investigation of
sexual abuse allegations or supervised visitation with father; or sole physical
custody to father with supervised visitation with mother or with
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unsupervised visitation with mother. Further complicating matters, in
January 2019, mother moved with minor to Eureka, Humboldt County. In
April 2019, the court denied mother’s request for a DVRO, finding insufficient
evidence to support issuing a permanent DVRO.
On November 3, 2020, the court issued a final custody and visitation
order, granting mother and father joint legal custody, mother sole physical
custody, and father visitation essentially every other weekend, and setting a
holiday schedule. On November 6, 2020, mother filed a request for a
temporary emergency custody order seeking sole physical custody and
suspending all visitation with father based on allegations that minor
disclosed to her therapist that father sexually abused her during a visit in
mid-October. Father also filed a request to modify custody, seeking sole
physical and legal custody and supervised visitation with mother. Father
alleged that mother’s repeated allegations of sexual abuse were false.
Mendocino County family law Judge Mayfield submitted to Mendocino
County FCS an application pursuant to Welfare and Institutions Code section
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3291 to commence dependency proceedings, dated November 24, 2020.2 The
application stated that beginning in 2017 or 2018, mother made numerous
allegations that father had inappropriate sexual contact with minor and that
social workers investigated the claims and found they were inconclusive or
unsubstantiated. It further summarized mother and father’s custody and
visitation litigation culminating in the competing requests for modification
1 All statutory references are to the Welfare and Institutions Code
unless otherwise specified.
Section 329, subdivision (a) provides: “When a person applies to the
social worker to commence proceedings in the juvenile court, the application
shall be in the form of an affidavit alleging that there was or is within the
county, or residing therein, a child within the provisions of Section 300, and
setting forth facts in support thereof. The social worker shall immediately
investigate as necessary to determine whether proceedings in the juvenile
court should be commenced. If the social worker does not take action under
Section 301 and does not file a petition in the juvenile court within three
weeks after the application, the social worker shall endorse upon the affidavit
of the application the decision not to proceed further, including any
recommendation made to the applicant, if one is made, to consider
commencing a probate guardianship proceeding for the child, and the reasons
therefor and shall immediately notify the applicant of the action taken or the
decision rendered under this section. The social worker shall retain the
affidavit and the endorsement thereon for a period of 30 days after notifying
the applicant.”
2 Mendocino County Judge Dolan previously submitted a section 329
application to Mendocino County FCS, dated February 19, 2019, while
mother’s and father’s competing requests for temporary custody orders and
DVRO were pending. On April 23, 2019, Mendocino County FCS filed a
response summarizing a long history of prior referrals and concluding that
the sexual abuse allegations were inconclusive because there was “no credible
disclosure, no medical evidence, and no other evidence to support allegations
of sexual abuse.” Mendocino County FCS’s response stated a concern about
emotional abuse due to mother’s conduct of making repeated allegations of
sexual abuse in the presence of minor and seeking emergency room
examinations. However, it did not recommend filing a section 300 petition at
the time because minor was in the primary care of father.
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orders. Judge Mayfield requested an investigation “of the past and current
allegations that [minor] . . . has been sexually abused by [father]. In the
event that the allegations of sexual abuse by [father] are determined to be
unfounded, the Family Court respectfully requests an investigation as to
whether [mother] has emotionally abused [minor] by repeatedly suggesting to
[minor] that she has been the victim of sexual abuse by [father], including
making one or more audio tapes in which [minor] makes statements about
alleged sexual abuse while her mother speaks to her in English and in
Vietnamese; subjecting [minor] to forensic interviews by Child Welfare social
workers and law enforcement officers; and requesting in 2019 that a SART
[suspected abuse response team] exam be performed on [minor].”
On November 30, 2020, Mendocino County FCS filed a response to
Judge Mayfield’s application stating that the Humboldt County Department
had already filed a petition and that minor had been detained by the
Humboldt County Juvenile Court. Mendocino County FCS’s response
enclosed a copy of the Humboldt Department’s petition alleging jurisdiction
under section 300, subdivision (d) based upon allegations of sexual abuse by
father. The Mendocino County Family Court suspended its proceedings
pending the outcome of the Humboldt County dependency case.
B. The Department files section 300 petition.
In October 2020, the Department received a referral from minor’s
therapist stating that minor said father touched her inappropriately while
she was in the bathtub and that after she fell asleep, she was awakened by
father, who was lying next to her and putting his finger in her vagina. In
November 2020, the Department conducted a forensic Child Abuse Services
Team (CAST) interview with minor. Minor said she did not have a dad and
father was not her dad. She said “[t]hree things happen[]” at father’s: When
she goes to sleep, he puts his fingers in her vagina; when she takes a bath, he
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puts his fingers in her vagina; and he puts his penis in her vagina and she
bleeds. “All of those [happened] five times.” Minor also said father hit her
“[a]lmost like everywhere” on her body, but she did not provide any further
details. On November 7, 2020, minor had a SART exam. Minor was asked
during the genital exam if anyone had touched her genitals, and she said,
“ ‘My mom washes my vagina.’ ” The exam revealed no findings of sexual
abuse.
On November 10, 2020, the Department filed a juvenile dependency
petition alleging minor came within the jurisdiction of the juvenile court
under section 300, subdivision (d) based upon sexual abuse by father. The
petition identified father as the offending parent and alleged: “The child . . .
has reported in a CAST interview on 11/06/2020, that she has been sexually
abused by her father when she goes to her father’s home on at least five prior
occasions. [Minor] described, digital penetration by father to her vagina, and
on at least one occasion her vagina bled after father put his ‘peanut’ in her
vagina. Such ongoing sexual abuse by her father places the child at risk of
harm in the father’s care.” (Sic.)
Minor was detained from father and released to mother’s care. In
December 2020, in advance of the contested jurisdiction hearing, father filed
a section 355 objection to hearsay and motion to strike requesting that the
allegations be stricken and the petition be dismissed. Alternatively, he
requested that the juvenile court “conform allegations to evidence” that
“Mother is mentally and emotionally abusing the child by subjecting her to
years of coaching, parental alienation, and seeking frivolous medical exams
that are invasive and traumatic, all for the sole purpose of substantiating
false allegations against the Father.” The Department did not amend the
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petition and continued to advocate for jurisdiction under section 300,
subdivision (d) based upon sexual abuse by father.
On March 11, 2021, six days before testimony began in the contested
jurisdiction hearing, counsel for minor filed an at-issue statement. The
statement presented two theories of the case: “1) There was some sex abuse
by father, but mother has engaged in a pattern of conduct emphasizing and
rewarding the child for disclosure thereof, resulting in the child identifying
with said abuse in an unhealthy way; or, [¶] 2) Mother has systematically
engaged in a course of parental alienation by coaching the child to report sex
abuse, such that the child now identifies with being a sexual abuse victim
and receives positive re-enforcement [sic] for disclosures.” Minor’s at-issue
statement said that counsel for minor raised these concerns directly to the
Department but that the Department declined to take action. It asked the
juvenile court to amend the petition to conform to proof to add a section 300,
subdivision (c) count based on mother’s severe emotional abuse of minor; to
sustain the petition against father under section 300, subdivision (c) in lieu of
section 300, subdivision (d); and to detain minor and remove her from both
mother and father pending further evaluation and assessment of the family’s
mental health needs. Minor’s counsel suggested that the following
allegations be added to the petition: “[A]llegation c-1: The minor . . . is
suffering from serious emotional damage or is in substantial danger thereof.
Such emotional damage is the direct result of her continued allegations of sex
abuse and identification with being a victim of sex abuse by her father.
[¶] [A]llegation c-2: The minor . . . is suffering from serious emotional
damage or is in substantial danger thereof due to her mother’s continued
discussions of and suggestions that the minor has been sexually abused by
her father.”
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At a pretrial conference on March 15, 2021, minor’s counsel repeated
her concerns regarding parental alienation and emotional abuse and stated
that she did not agree with the Department’s interpretation of the evidence
and that she would be asking the court to conform the petition to proof to add
a section 300, subdivision (c) allegation as to mother. Mother was not present
at the pretrial conference,3 but her counsel was present.
C. Contested Jurisdiction Hearing
Testimony began in the contested jurisdiction hearing on March 17,
2021, and continued over eight days until April 5, 2021. The juvenile court
heard testimony from Ukiah Police Sergeant Rick Pintane, father’s expert
witness Dr. Jacqueline Singer, Mendocino County social worker Michele
Steckter, Humboldt County social worker supervisor Kim Schneider,
dependency investigator intern Maggie Halliday, mother, and father.
Sergeant Pintane testified that in October 2020 he investigated a
sexual abuse report regarding minor. He was aware of multiple prior
investigations that found no evidence to substantiate allegations of sexual
abuse. He interviewed father and reviewed the November 2020 CAST
interview and the results of the SART exam. He did not recommend charges
against father due to a lack of physical evidence. However, he made a
referral to the Department recommending that mother be investigated for
possible mental and emotional abuse of minor.
Dr. Singer testified that she reviewed the Mendocino Family Court file;
reviewed the jurisdiction report and addendums filed by the Department; and
viewed the videos from the forensic interviews of minor on January 5, 2018,
3There is no explanation in the record for mother’s absence. The court
had an interpreter available for her, but the court released the interpreter
when mother did not appear.
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on August 27, 2019, and in November 2020. She testified that minor was
interviewed at least 15 times, by police officers, social workers, an attorney, a
therapist, forensic interviewers, and mother, and that repeat interviews tend
to create false narratives, particularly when suggestive or leading questions
are posed. Dr. Singer believed that minor’s statements were tainted by
suggestive interview techniques. She found it unusual that minor presented
a list of abuse in the 2020 CAST interview, that she was unable to provide
details when asked follow-up questions, that she did not provide a time frame
for the instances of abuse, and that she said everything happened five times.
Dr. Singer opined that it was likely that mother interpreted normal
parenting activities as abuse and that suggestive questioning by mother and
repeated investigations resulted in minor’s disclosing sexual abuse. She
opined that given mother’s very strong belief that father sexually abused
minor, it was highly unlikely minor could establish a relationship with father
while she continued to be under mother’s influence. She suggested placing
minor in foster care to allow time for her to reestablish a relationship with
father and then slowly reunifying with mother with appropriate protocols.
Mendocino County social worker Michele Steckter testified that she
conducted five investigations regarding sexual abuse by father and that they
were all deemed inconclusive or unsubstantiated. Steckter began an
investigation into possible emotional abuse by mother, but the investigation
was discontinued when the Department became involved in November 2020.
Father denied all allegations of sexual abuse and said he believed
minor was lying because mother coached her to make the allegations. He
testified that mother taught minor to call him “ ‘it’ ” instead of “dad” or
“daddy.” Mother began accusing him of inappropriately touching minor when
father changed her diaper and washed her bottom when she was one and a
10
half years old. While the family lived together, he bathed minor once and
mother became angry and accused him of inappropriately touching minor.
Mother testified to calling the police after an incident in November
2017, when minor told her that father hit her chest because she would not
allow him to touch her private area. She also testified to other occasions
when minor told her that father touched her while mother was out and that
she was afraid of father. Mother denied telling minor what to say in the
forensic interviews. She further denied she told minor that father was a bad
person. Mother confirmed she did not allow father to bathe minor or change
her diapers. Nor did she allow minor to sit on father’s lap. She testified that
as a toddler minor called father “ba” (Vietnamese for “daddy”), at four years
old she called father “it,” and now she calls him by his first name. In October
2018, mother took two photographs of minor’s genitalia showing red marks.
She sent them to a social worker in April 2019, after her divorce, and she
showed them to a judge at a court hearing in March 2019.4
The Department’s social worker Kim Schneider testified to her
involvement in the Department’s investigation and the November 2020 CAST
interview. Schneider believed minor’s disclosures during the CAST interview
did not suggest coaching. As supervisor of the Department’s investigation,
Schneider learned of Mendocino County FCS’s concerns about mother’s
coaching minor. Schneider directed assigned social workers to gather
information regarding possible coaching. Schneider was not aware that
Sergeant Pintane made a referral to the Department to investigate mother
for mental and emotional abuse. She believed she reviewed Mendocino
4 Although mother’s testimony does not state the type of hearing, based
on the 2019 date we assume it was a hearing during the Mendocino County
family law proceedings regarding child custody.
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County family law Judge Mayfield’s section 329 referral asking for an
investigation of mother for emotional abuse, but she understood that it was
addressed to Mendocino County FCS and was based on prior allegations.
Schneider confirmed that she was unaware whether the Department
amended the petition to include a section 300, subdivision (c) allegation
against mother for emotional abuse, nor whether the Department
recommended removing minor from mother’s care.
Minor’s counsel called Maggie Halliday, an intern for the Humboldt
County Dependency Panel, who interviewed minor remotely by
videoconference in February and March 2021 to determine if minor was
fearful of father. During the interview, when minor was asked if it was okay
to talk about her dad, she asked to call him by his first name instead of dad,
and then she said there were three things she needed to tell Halliday about
father.
The juvenile court accepted into evidence the Department’s jurisdiction
report and six addendum reports and the videos and transcripts of the
forensic interviews conducted on January 5, 2018, on August 27, 2019, and in
November 2020, and took judicial notice of the Mendocino County family law
and domestic violence files.
D. Written Closing Arguments
The parties filed simultaneous written closing arguments. The
Department’s closing summarized the testimony and evidence presented in
the jurisdiction report and addendums regarding the sexual abuse
allegations. The Department urged the juvenile court to protect minor from
further sexual abuse by the father. It did not support the filing of a section
300, subdivision (c) allegation against mother and argued mother is not the
offending parent.
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Minor’s counsel’s closing argument reiterated the request to conform
the petition to proof and sustain a section 300, subdivision (c) allegation as to
both parents. Minor’s counsel argued the evidence supported either that
(1) mother misinterpreted father’s normal parenting behavior as sexual
abuse and fixated on the idea that minor has been abused, causing minor
emotional harm; or that (2) minor was never sexually abused and mother is
engaging in a pattern of parental alienation to gain a litigation advantage.
Minor’s counsel requested that the juvenile court sustain the following
amended allegations: “[A]llegation c-1: The minor . . . is suffering from
serious emotional damage or is in substantial danger thereof. Such
emotional damage is the direct result of her continued allegations of sex
abuse and identification of being a victim of sex abuse by her father.
[¶] [A]llegation c-2: The minor . . . is suffering from serious emotional
damage or is in substantial danger thereof due to her mother’s continued
discussions of and suggestions that the minor has been sexually abused by
father.”
Mother’s closing argument asked the juvenile court to sustain the
petition as pleaded and asserted that claims by Mendocino County FCS that
mother engaged in alienation or coaching were “[r]idiculous.”
Father argued the original petition should be dismissed for lack of
evidence. In the alternative, he joined in the request of minor’s counsel to
amend the petition to conform to proof and sustain a section 300,
subdivision (c) allegation as to mother.
E. Juvenile court amends petition and sustains section 300,
subdivision (c) allegation.
On July 9, 2021, the juvenile court issued its written ruling, and on
July 12, 2021, it issued a first amended findings and order regarding
contested jurisdictional hearing. The juvenile court found the Department
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failed to meet its burden of proof as to the section 300, subdivision (d)
allegations of sexual abuse by father. The court credited the testimony of
father and father’s expert. It did not find mother’s testimony credible, and it
found the Department “did not appear to critically analyze this case, rejecting
any facts that might reasonably lead to a different conclusion.” (Italics
omitted.) The court did not dismiss the petition, as authorized by section
356.5 Nor did it file an application to commence dependency proceedings
under section 329. Instead, the court found that minor came within the
juvenile court’s jurisdiction under section 300, subdivision (c) because she
was suffering emotional damage or was at a substantial risk of suffering
emotional damage as “the result of mother’s unsubstantiated belief that
father has sexually abused the child, and mother’s actions causing multiple
forensic evaluations of the child in mother’s attempt to substantiate mother’s
belief that the father has sexually abused the child. The harm to the child is
evidenced by the child’s emotional withdrawal from the father caused by
mother’s actions. Even if mother and the judicial system had not negatively
impacted father’s relationship with the child, and father may be able to
provide appropriate care for the child, he is not able to do so at this time.
Further, the parents certainly cannot successfully co-parent at this time.” The
court ordered the Department to arrange for a psychological evaluation to
address the risks of leaving minor in mother’s custody while working toward
5 Section 356 states: “After hearing the evidence, the court shall make
a finding, noted in the minutes of the court, whether or not the minor is a
person described by Section 300 and the specific subdivisions of Section 300
under which the petition is sustained. If it finds that the minor is not such a
person, it shall order that the petition be dismissed and the minor be
discharged from any detention or restriction theretofore ordered. If the court
finds that the minor is such a person, it shall make and enter its findings and
order accordingly.”
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reunification with father and what services would be needed to accomplish
the goal of coparenting. Father was granted supervised visitation.
Regarding due process concerns, the court’s ruling states: “The Court is
aware that the parties are entitled to due process as it relates to any
allegations made against them. The Court finds that minor’s counsel has
consistently and clearly made her issues in this matter clear to all parties,
and the determination of the Court is consistent with minor’s counsel’s
position, which all parties had notice of and had the right to be heard on
those issues at the contested jurisdictional hearing.”
The disposition hearing was held on July 19, 2021. The juvenile court
declared minor a dependent, ordered her removed from father’s custody
without prejudice pending further psychological evaluations, and placed her
with mother under a family maintenance plan with reunification services to
father.
Mother, father, and the Department filed notices of appeal. However,
only mother’s appeal remains pending.6
DISCUSSION
Mother argues the juvenile court abused its discretion and exceeded its
authority by amending the petition to assert an unpleaded allegation against
a nonoffending parent. She also argues the juvenile court’s amendment of
the petition violated her due process rights and resulted in prejudice.
Finally, she argues that substantial evidence does not support the juvenile
court’s findings. Our analysis focuses on mother’s argument that her due
6 The Department’s appeal was dismissed after the Department
notified the court it was withdrawing its notice of appeal. Further, father
informed the court he would not be filing an opening brief because his appeal
had become moot due to developments in the underlying case. Father’s
request to be deemed a respondent was granted.
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process rights were violated by the juvenile court’s amendment of the
petition. We agree and, therefore, reverse the jurisdiction findings and
disposition order.
I. Amendment to conform to proof violated mother’s due process
rights because it asserted facts and theories not alleged in the
original petition.
In dependency proceedings, amendments to conform to proof are
favored. (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1042 (Jessica C.); see
Welf. & Inst. Code, § 348 [Code Civ. Proc., § 469 et seq., regarding variance
and amendment of pleadings in civil actions, apply to dependency petitions
and proceedings].) However, “[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 . . . refuse any such amendment.” (Jessica C.,
at p. 1042.) Or, stated otherwise, amendments according to proof should not
be denied “unless the pleading as drafted prior to the proposed amendment
would have misled the adversarial party to its prejudice.” (Ibid.)
Here, mother was not named as the offending parent in the original
petition, and although other agencies (the Ukiah Police Department,
Mendocino County FCS, and Mendocino County family law judges) had
concerns about mother’s conduct, the Department did not agree that the
evidence supported amending the petition to add a section 300,
subdivision (c) allegation against mother. Father, who filed a respondent’s
brief on appeal, does not argue that mother was ever made aware that the
various Mendocino County agencies believed she should be investigated for
emotionally abusing minor. In any event, the Department never made any
allegations against mother. Nor did the juvenile court or any party to the
proceeding file an application with the Department pursuant to section 329.
Although Mendocino County FCS began an investigation of mother for
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emotional abuse, it never filed a petition alleging jurisdiction based on
emotional abuse because the Department became involved. The Department,
correctly or not, disagreed with the Mendocino County agencies, and pursued
a petition based on section 300, subdivision (d) only, alleging father sexually
abused minor.
Jessica C., supra, provides an apt example of a variance between
pleading and proof that is too wide to afford due process: “For example,
suppose a petition only alleges, under subdivision (d) of section 300, a variety
of 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.” (93
Cal.App.4th at p. 1042, fn. 14.) That is essentially what happened in this
case, except here, the Department never advocated for the amendment. By
referencing the Jessica C. example, we do not mean to suggest the juvenile
court resorted to any type of underhanded “tactic” or “cheap shot.”
Nonetheless, we find mother’s due process rights were violated.
Father acknowledges in his respondent’s brief that the juvenile court’s
amendment was “clearly a significant amendment,” but he asserts it was not
material because mother was not misled. According to father, mother was
made aware of “Father’s theory of the case,” which was that mother coached
minor to falsely support sexual abuse. Father further asserts mother had
notice of his and minor’s requests that the juvenile court conform the
allegations to the evidence and find mother emotionally abused S.V.
17
However, as discussed ante, mother was never named in the petition and the
Department, which is responsible for initiating dependency proceedings
(§ 325; Cal. Rules of Court, rule 5.520(a)), never wavered from its position
that the petition should be sustained based only upon the allegations of
sexual abuse by father.
In re G.B. (2018) 28 Cal.App.5th 475 (G.B.) is factually similar to this
case. The petition alleged mother’s boyfriend sexually abused minor and
mother failed to protect minor from the abuse. (Id. at p. 480.) Father was
not named as an offending parent in the petition. (Ibid.) The juvenile court
found that the department failed to meet its burden to prove the sexual abuse
allegations. (Id. at p. 481.) However, instead of dismissing the petition, the
juvenile court, on its own motion, sustained different, unpleaded allegations
against father under section 300, subdivision (c), finding father had a history
of coaching minor to make false accusations against mother and that father’s
conduct caused minor serious emotional harm. (G.B., at p. 483.) The Court
of Appeal found the juvenile court exceeded its authority to amend the
petition to conform to proof because the amendments did not assert the same
basic allegations as the original petition and instead “completely changed the
grounds for establishing jurisdiction . . . .” (Id. at p. 486.) “Specifically, the
court’s allegations sought to establish jurisdiction over G.B. under a different
legal theory than the original allegations (emotional abuse versus sexual
abuse); they named father as an offending parent even though he was
nonoffending in the original petition; and they were based on a set of facts
not at issue in the original allegations (father’s alleged coaching of G.B. to
fabricate allegations against mother and her boyfriend versus the boyfriend’s
alleged sexual abuse and mother’s failure to protect G.B. against that
abuse).” (Ibid.) The Court of Appeal found the juvenile court had no
18
statutory authority to amend the petition to assert allegations against father
based on a factual and legal theory not at issue in the original petition.
(Ibid.)
Here, the juvenile court’s first amended findings and order briefly
discussed due process and concluded: “The Court finds that minor’s counsel
has consistently and clearly made her issues in this matter clear to all
parties, and the determination of the Court is consistent with minor’s
counsel’s position, which all parties had notice of and had the right to be
heard on those issues at the contested jurisdictional hearing.” Based on this
record, we disagree that minor’s counsel’s advocacy to conform the petition to
proof and assert an emotional abuse allegation against mother sufficiently
apprised mother that allegations were being asserted against her, or of the
specific details of the allegations ultimately sustained by the juvenile court.
First, the proposed amendments stated in minor’s pretrial at-issue
statement and in her closing argument differ from the juvenile court’s
amendment. Minor’s counsel proposed the following allegations:
“[A]llegation c-1: The minor . . . is suffering from serious emotional damage
or is in substantial danger thereof. Such emotional damage is the direct
result of her continued allegations of sex abuse and identification of being a
victim of sex abuse by father. [¶] [A]llegation c-2: The minor . . . is suffering
from serious emotional damage or is in substantial danger thereof due to her
mother’s continued discussions of and suggestions that the minor has been
sexually abused by father.” Only the proposed c-2 allegation even mentions
mother, and it does not specifically state that the sexual abuse by father was
unsubstantiated. In contrast, the juvenile court’s amendment more
specifically found serious emotional damage “[as a] result of mother’s
unsubstantiated belief that father has sexually abused the child, and
19
mother’s actions causing multiple forensic evaluations of the child in mother’s
attempt to substantiate mother’s belief that the father has sexually abused
the child. The harm to the child is evidenced by the child’s emotional
withdrawal from the father caused by mother’s actions.”
Second, the Department not only never named mother as an offending
parent but also opposed the proposed amendment offered by minor’s counsel.
On this record, we cannot find that mother had notice that she needed to
defend herself against allegations that she caused her child to suffer
emotional abuse due to her own unsubstantiated belief that father was
sexually abusing their child and that the emotional harm was evidenced by
the child’s withdrawal from father. (See In re I.S. (2021) 67 Cal.App.5th 918,
929 [“Although I.S.’s emotional problems were discussed throughout the
proceedings, Mother had no notice evidence should be presented concerning
the nature and severity of any emotional damage I.S. may have been
suffering, as well as Mother’s responsibility for the initial onset and
continuation of I.S.’s emotional damage”].) Although mother appeared at the
contested jurisdiction hearing and testified as a witness for the Department
in support of the allegations against father, she was not on notice that
jurisdiction could be based on her conduct because she was not named as an
offending parent in the petition and the Department never advocated for
jurisdiction based on her conduct. We conclude that mother was not given
adequate notice of, or a fair opportunity to refute, the allegation that was
sustained against her.
II. Juvenile court’s amendment to conform to proof over the
objection of the Department improperly displaced the role of the
Department.
G.B., supra, further found that the juvenile court improperly assumed
the dual role of advocate and trier of fact, which further deprived father of his
20
due process rights to a fair trial before a disinterested neutral. (28
Cal.App.5th at p. 487.) It explained that in contested dependency
proceedings, the social services agency assumes the role akin to prosecutor
and generally is responsible for initiating dependency proceedings on a
minor’s behalf. (Ibid.) The juvenile court serves as an impartial trier of fact
tasked with determining whether the allegations in the dependency petition
are true. (Ibid.) A juvenile court lacks the authority to initiate, on its own
motion, dependency proceedings against a parent. (Id. at p. 488; see Cal.
Rules of Court, rule 5.520(a) [“Except as provided in sections 331, 364, 604,
653.5, 654, and 655, the social worker or probation officer has the sole
discretion . . . to file a petition under section 300 and 601”].)7 As G.B. further
explains, when a juvenile court acts as advocate and trier of fact, the parent
is deprived of his or her right to a fair and impartial arbiter, and “[t]his is
especially true when the social services agency opposes the court’s proposed
7 Under section 331, a juvenile court may be asked to review a social
services agency’s decision not to commence dependency proceedings after it
has received a section 329 application from a third party requesting that the
agency do so. If the juvenile court concludes the agency erred in refusing to
initiate proceedings, the court has authority to order the agency to file a
petition commencing dependency proceedings. Here, two Mendocino County
judges filed section 329 applications requesting that Mendocino County FCS
investigate whether to commence proceedings. However, nothing in the
record suggests anyone sought review of Mendocino County FCS’s decisions
not to commence a dependency proceeding and review of those decisions was
not before the Humboldt County Juvenile Court. The record includes a
recommendation from Ukiah police sergeant Pintane that the Humboldt
Department investigate mother for emotional abuse; however, the parties do
not provide a record citation to a section 329 application made to the
Department to commence proceedings against mother for emotional abuse,
and from our review of the record it appears that no such application was
filed. Thus, the juvenile court was never asked to review any decisions by the
Department not to commence a proceeding based on emotional abuse by
mother.
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allegations . . . . Under those circumstances, the court has, in essence,
displaced the social services agency and eliminated any distinction between
the roles of advocate and impartial arbiter.” (G.B., at p. 488.)
Mother argues that here, as in G.B., the juvenile court improperly
assumed the role of advocate and trier of fact, which deprived her of a fair
and impartial arbiter. We recognize that this case is distinguishable from
G.B. in that here the juvenile court did not act entirely on its own motion.
Minor and father advocated generally for an amendment of the petition to
allege emotional abuse by mother. However, neither minor nor father
proposed the specific and detailed amendment the juvenile court adopted.
Further, the Department opposed the amendment and maintained its
position that father was the offending parent. As explained in G.B., supra,
the Department acts akin to a prosecutor in juvenile dependency proceedings
and it is responsible for initiating proceedings. (28 Cal.App.5th at p. 487;
Cal. Rules of Court, rule 5.520(a); § 325.) Here, the Department never
initiated proceedings naming mother as the offending parent. The juvenile
court’s amendment of the petition to assert a new factual and legal theory of
jurisdiction against a nonoffending parent, “in essence, displaced the
[Department] and eliminated any distinction between the roles of advocate
and impartial arbiter.” (G.B., at p. 488.)
In this case, minor’s counsel and father and, ultimately, the juvenile
court disagreed with the Department’s decision not to seek jurisdiction based
upon mother’s conduct under section 300, subdivision (c). The statutory
procedure for contesting a decision of the Department is set forth in sections
329 and 331. Either minor’s counsel or father could have filed a section 329
application requesting that a petition be filed under section 300,
subdivision (c) based upon mother’s conduct. If the Department refused to do
22
so, minor or father could have requested judicial review of that decision. The
juvenile court would then have been authorized either to affirm the
Department’s decision or to order the Department to file the petition
requested. (§ 331, subd. (b).) Instead of following this statutory procedure,
which preserves all parties’ due process rights, the juvenile court allowed the
parties to circumvent the process, and the court effectively overrode the
Department’s decision by amending the petition to conform to proof to assert
unpleaded factual and legal theories against a nonoffending parent.
The jurisdiction and disposition order must be reversed because
mother’s due process rights were violated. We do not reach mother’s
contention that the orders were not supported by substantial evidence.
However, based upon the evidence in the record, if the Department or the
Mendocino County FCS8 determines that a new petition should be filed
alleging a section 300, subdivision (c) claim based upon mother’s conduct,
either agency may do so on remand.
DISPOSITION
The juvenile court’s jurisdiction finding as to mother and its disposition
orders are reversed. Further, all orders issued as the result of this
jurisdiction and after the disposition hearing are vacated. The matter is
remanded for further proceedings consistent with this opinion.
8Per father’s request, we take judicial notice of the juvenile court’s
January 10, 2022, order modifying the disposition order, removing minor
from mother’s custody and placing her in an approved placement, finding
that her county of residence is Mendocino County, and transferring the
matter to Mendocino County.
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_________________________
Jackson, P. J.
WE CONCUR:
_________________________
Burns, J.
_________________________
Wiseman, J.*
A163272/Humboldt County Department of Health and Human Services v. H.P.
*Retired Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
24
A163272/Humboldt County Department of Health and Human Services v.
H.P.
Trial Court: Superior Court of the City and County of San Francisco
Trial Judge: Joyce D. Hinrichs
Counsel: Elizabeth Klippi, under appointment by the Court of
Appeal, for defendant and appellant, H.P.
Leslie A. Barry, under appointment by the Court of
Appeal, for defendant and respondent, R.V.
Scott A. Miles, Interim County Counsel, Anne H. Nguyen,
Deputy County Counsel, for plaintiff and
respondent, Humboldt County Department of
Health and Human Services.
Suzanne Davidson, under appointment by the Court of
Appeal, for minor, S.V.
25