In re I.S. ( 2021 )

Filed 8/16/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re I.S., a Person Coming Under
the Juvenile Court Law.
CONTRA COSTA COUNTY A161417
CHILDREN AND FAMILY
SERVICES BUREAU, (Contra Costa County
Super. Ct. No. J1900940)
Plaintiff and Respondent,
v.
R.S.,
Defendant and Appellant.
R.S. (Mother) appeals the juvenile court’s orders declaring her
daughter, I.S., a dependent child under Welfare and Institutions Code section
300, 1 and removing I.S. from her custody pursuant to section 361, subdivision
(c)(1). Mother contends the juvenile court erred and deprived her of due
process by amending the dependency petition to conform to proof at the
jurisdictional hearing. She also challenges the juvenile court’s finding that
reasonable efforts were made to prevent the need for I.S.’s removal under
section 361, subdivision (e). We agree with Mother that the juvenile court’s
Further undesignated statutory references are to the Welfare and
1
Institutions Code.
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amendments to the petition to conform to proof deprived her of due process.
Accordingly, we reverse the juvenile court’s jurisdictional order and the
dispositional orders that derived from it.
BACKGROUND
The Petition, Detention, and Jurisdiction
R.S. is the mother of minor I.S. I.S.’s father reportedly lives in Brazil
and could not be located.
On October 29, 2019, the Contra Costa County Children and Family
Services Bureau (Bureau) initiated these dependency proceedings with
respect to then 14-year-old I.S. by filing a petition pursuant to section 300,
subdivisions (b)(1) (failure to protect) and (d) (sexual abuse). The petition
alleged D.B., a family friend and member of I.S.’s household, touched I.S. on
her breast and vaginal area and then forced her to touch his genitals. The
petition also alleged Mother “knew about the abuse,” but maintained I.S. was
“ ‘a ‘liar’ ” and “ ‘[was] making this up.’ ” Although Mother initially kicked
D.B. out of the home, she later allowed him to move back in, thereby failing
to protect I.S. Mother denied the allegations.
On October 30, the Bureau filed its detention and jurisdiction report.
Days earlier, the Bureau interviewed I.S., who explained she was abused by
D.B., the boyfriend of Mother’s sister, approximately a year prior. After that
incident, D.B. texted I.S. to not tell anyone about it. I.S. told Mother about
the abuse two days afterward and forwarded her the text messages from D.B.
At the time of the incident, D.B. lived with I.S., together with several other
family members. After I.S. disclosed the abuse to Mother, Mother initiated a
meeting with the adult family members in the household to discuss what
happened. I.S. and D.B. were present at the meeting. The family members
ended up “yelling, screaming and throwing things” and argued about whether
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they believed I.S. D.B. moved out of the house some time thereafter.
However, Mother later asked I.S. “if it was alright for [D.B.] to move back
into the home,” a question that upset I.S. D.B. eventually moved back into
the home in August or September 2019. Although D.B. had not made any
advances toward I.S. since moving back, I.S. reported feeling afraid, anxious,
and uncomfortable when he is at home. The adults living in the house also
stopped speaking to I.S. I.S. often refused to go home and spent many days
staying at her school friends’ homes. I.S.’s grades also suffered throughout
the school year.
During her interview with the Bureau, Mother stated she did not know
“why [she was] here.” She claimed D.B. “didn’t do anything to [I.S.]” and I.S.
was a “liar,” who was “just making this up because we got into it about her
grades this morning.” But when asked to elaborate, Mother did not state
what I.S. was lying about. Mother confirmed D.B. was living in the family
home.
On October 30, the juvenile court ordered I.S. detained, placed her with
a foster family, and set a detention hearing for the following day. At the
detention hearing, the juvenile court granted Mother weekly visitation,
pending the Bureau’s completion of a forensic interview. It scheduled a
contested jurisdictional hearing for December 4 and a pretrial hearing on
November 20.
At the November 20 hearing, the juvenile court was informed that the
forensic interview of I.S. recently had been completed. Mother’s counsel then
requested visitation, which had not yet occurred because a scheduled visit
was canceled after I.S. reported she was feeling emotional. I.S.’s counsel
objected to the request, explaining that the forensic interview revealed
“disturbing” information, which “illuminate[d] [I.S.’s] reluctance to want to
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see her mother.” When the juvenile court asked counsel if the information
was “[d]isturbing to the point that you think the visitation order should be
revisited,” counsel replied that it was, and asked the court to withhold
visitation until the parties received feedback from a therapist concerning
“what [I.S.] can stand emotionally.” Mother objected to the recommendation
to suspend visitation pending feedback from a therapist. The juvenile court
then stated its decision: “[P]ending further order of the Court, visitation
shall only occur if [I.S.] wishes to have a visit. [¶] . . . [¶] . . . [I.S.] is not right
now safe with Mother. . . . [¶] . . . [¶] . . . I totally understand where Mom is
coming from and I’d—might feel the same way in her situation—but this is
about . . . what’s in her best interest. And I do find that it is potentially in
her best interest, and I give the bureau discretion to determine that as time
goes on.”
On December 4, the Bureau filed a memorandum detailing statements
made by I.S., Mother, their family members, and collateral contacts during
the forensic interview and other interviews conducted by the Bureau and law
enforcement. Consistent with her statements noted in the detention and
jurisdiction report, I.S. explained the events surrounding the sexual abuse in
detail, her disclosure to Mother of the abuse and text messages from D.B., the
subsequent family meeting, and her family’s alienation of her after the
disclosure.
Mother denied she knew about the abuse before the dependency
proceedings and stated until then, she was only aware of the text messages
D.B. had sent I.S. According to Mother, she had asked I.S. if D.B. “had done
anything to her” and I.S.’s answer was “no.” Mother did not see any text
messages that were sexual in nature. Mother, however, stated she herself
had been sexually abused in the past and, in light of her experience, D.B.’s
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text messages were a “red flag.” Mother also recalled a time when she heard
D.B. was “being creepy” toward I.S. by sitting too close to, and unnecessarily
touching, I.S. while playing video games. Mother also stated she called the
family meeting to explore the nature of text messages D.B. had sent I.S. At
the conclusion of the meeting, D.B. apologized to I.S. for making her
“uncomfortable,” and I.S. apparently accepted the apology. The family also
asked I.S. if D.B. could move back into the house, and I.S. responded he
could.
I.S. reported feeling depressed since the molestation. She also
expressed she was still uncomfortable seeing Mother due to Mother’s denial
of the abuse, and was concerned about her emotional well-being were she to
visit with Mother. The social worker encouraged I.S. to reconsider visits,
stated she would check in with I.S. at the end of the week to set up visits for
the following week, and suggested I.S. try communicating with Mother in
writing. I.S. was open to that idea.
At the December 4 hearing, the parties notified the juvenile court they
had negotiated a jurisdictional resolution whereby the allegation in count d-1
in the petition stating I.S. had been sexually abused by a member of her
household would be admitted, and all other allegations would be dismissed.
The juvenile court rejected the proposed resolution because it stripped the
petition of language describing Mother’s “personal responsibility for
[Mother’s] role in getting us to where we are.”
Mother’s counsel then requested visitation. I.S.’s counsel objected to
the request, explaining I.S. was “simply not ready yet” to see Mother. The
juvenile court then stated, “I don’t know that I have enough information
about whether to be heavy-handed with visitation. The most comfortable I
am willing to get is ordering that the bureau shall make all efforts to try to
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facilitate therapeutic visitation when [I.S.] is ready. And I can’t say that
that’s in a week, but I will say that. Any objection to that?” No one raised
any objections.
The juvenile court continued the contested jurisdictional hearing to
January 2, 2020. Due to delays and court closures associated with the
COVID-19 pandemic, the hearing took place over the course of several days
between January 2 and July 1. Mother, her family members, and social
workers testified.
Mother testified along the lines of her previous statements to the
Bureau and law enforcement in interviews, including her denial of the abuse.
Mother also testified that after D.B. moved back into the family home, she
continued living there until December 2019, when her family “kicked
[Mother] out.”
Social worker Laura Carnagey testified about the interactions between
Mother and I.S. during a Child and Family Team (CFT) meeting in January
2020—the first time they saw each other since detention. I.S. expressed her
worries to Mother. In response, Mother was “defensive and confrontational,
and she denied any responsibility.” I.S. “became very upset, tearful, crying,
somewhat hysterical to the point where she left the room . . . and was in the
hallway, and we could audibly hear her sobbing. At which point the first
caregiver that [I.S.] was placed with exited and they went into another room
to calm her down.” The meeting proceeded, but with Mother and I.S. in
separate rooms.
At the conclusion of the jurisdictional hearing on July 1, the juvenile
court found I.S. was a minor as described by section 300. While it was
unclear to the juvenile court whether Mother learned about the reports of
abuse before the dependency proceedings, it found “there is more than
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sufficient evidence to support the following, that the child has suffered or
there is a substantial risk that the child will suffer serious physical harm or
illness.” The juvenile court amended count b-1 in the petition to conform to
proof by including the following allegations:
“A, Upon learning an adult male resident in the home, [D.B.], sent the
child inappropriate text messages, Mother did not . . . take sufficient steps to
investigate the circumstances behind the texts that might have led to the
discovery of sexual abuse by that male resident of the home.
“B, Mother involved all the family members in a large, extended
household in the discussion of whether to exclude that adult male from the
home and, when he was excluded, permitted other family members to
ostracize the child within the family home for months because she disclosed
the inappropriate text messages that led to his expulsion from the home.
“C, Mother failed to protect the child by placing the child in the middle
of the family discussion and decision about whether to permit the adult male
to move back into the home and permitting the child to be pressured into
agreeing that he can return to the home.
“D, Mother failed to protect the child by remaining in the home with
the child after the adult male moved into the home.
“E, Mother continued to live in the home with the adult male even after
learning that the child disclosed sexual abuse by the adult male in addition to
the inappropriate texts.
“And, F, the child feels so unsupported by Mother that the child doesn’t
feel safe living with Mother.”
As so amended, the juvenile court sustained the count b-1 allegations.
It did not discuss count d-1 at the hearing, but its written order noted it was
dismissing that count. It then set the dispositional hearing for July 22.
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At the July 22 hearing, the Bureau asked the juvenile court to clarify
its jurisdictional findings because it was unclear if it had made any findings
with respect to count d-1. The juvenile court agreed its findings were unclear
and stated it would review the transcript and findings, and issue an order
clarifying its findings.
At a pretrial hearing on August 5, the juvenile court stated, “because
we were under time pressure because it was the end of the day, I neglected to
address the (d)(1) allegations. . . . And I had just overlooked the (d)
allegations.” The juvenile court announced it was amending count d-1 of the
petition to conform to proof at the jurisdictional hearing by including the
following allegations: “The parent has failed to protect the child adequately
from sexual abuse and the parent knew or reasonably should have known
that the child was in danger of sexual abuse in that:
“a. The child was sexually abused by an adult male resident of the
home, [D.B], who touched the child on her breast and vaginal area, then
forced her to touch [D.B.’s] genitals.
“b. Mother learned that [D.B.] sent the child inappropriate text
messages, but Mother did not take sufficient steps to investigate the
circumstances behind the texts that reasonably might have led to the
discovery of sexual abuse, and would have at least revealed the danger of
sexual abuse of the minor by [D.B.]
“c. Mother failed to protect the child by placing the child in the middle
of the family discussion and decision about whether to permit the adult male
to move back into the home, and permitting the child to be pressured into
agreeing that he could return to the home.
“d. Mother failed to protect the child by remaining in the home with
the child after the adult male moved into the home.
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“e. Mother continued to live in the home with the adult male even after
learning that the child disclosed sexual abuse by the adult male in addition to
the inappropriate texts.”
The juvenile court sustained the amended allegations and continued
the dispositional hearing to September 30.
Disposition
The Bureau filed its dispositional report, which attached a copy of
Mother’s case plan. It noted I.S.’s diagnosis of post-traumatic stress disorder,
as well as her difficulties with sleep, low self-esteem, and self-harming
thoughts. The Bureau recommended the juvenile court find I.S. continued to
be a dependent child under section 300; adjudge her to be a dependent;
determine reasonable efforts were made to prevent the need for removal;
find, pursuant to section 361, subdivision (c)(1), by clear and convincing
evidence, there was a substantial danger to the physical health, safety,
protection or physical or emotional well-being of I.S. or would be if I.S. were
returned home, and there were no reasonable means by which the I.S.’s
physical health could be protected without removing I.S. from Mother’s
custody; and grant Mother supervised visitation four times per month.
The juvenile court held the dispositional hearing on September 30.
After hearing testimony from social worker Yecenia Parra on the Bureau’s
efforts to provide I.S. and Mother with services, the parties presented closing
arguments. Mother’s counsel argued that the Bureau failed to meet its
burden to establish reasonable efforts were made to prevent I.S.’s removal
from Mother’s custody—a finding counsel asserted must be made by clear
and convincing evidence.
Following that argument, the juvenile court announced its decision “to
adopt the recommendations [of the Bureau] on pages 16 through 18 of the
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report as the findings and orders of the Court,” which included the finding
that clear and convincing evidence established there was a substantial
danger to the physical health, safety, protection, or physical or emotional
well-being of I.S. if she were to be returned home, and there were no
reasonable means by which I.S.’s physical health could be protected without
removal.
The juvenile court also found the Bureau made reasonable efforts to
prevent the removal of I.S. from Mother’s custody and rejected Mother’s
assertion that such a finding must be made under the clear and convincing
evidence standard.
Mother appeals from the jurisdictional and dispositional orders.
DISCUSSION
The Juvenile Court Erred in Exercising Jurisdiction Over I.S.
Mother contends the juvenile court erred and deprived her of due
process when it amended the dependency petition to conform to proof
produced at the jurisdictional hearing to include allegations based on factual
and legal theories not at issue in the original petition. We agree.
“Since the interest of a parent in the companionship, care, custody, and
management of his [or her] children is a compelling one, ranked among the
most basic of civil rights [citations], the state, before depriving a parent of
this interest, must afford [the parent] adequate notice and an opportunity to
be heard.” (In re B.G. (1974) 11 Cal.3d 679, 688–689; see In re Marilyn H.
(1993) 5 Cal.4th 295, 306.) “[A] parent whose child may be found subject to
the dependency jurisdiction of the court enjoys a due process right to be
informed of the nature of the hearing, as well as the allegations upon which
the deprivation of custody is predicated, in order that he or she may make an
informed decision whether to appear and contest the allegations.”
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(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
properly meet the charges.” (In re Jeremy C. (1980) 109 Cal.App.3d 384,
397.)
A juvenile court may amend a dependency petition to conform to the
evidence received at the jurisdiction hearing to remedy immaterial variances
between the petition and proof. (§ 348; Code Civ. Proc., § 470.) However,
material amendments that mislead a party to his or her prejudice are not
allowed. (Code Civ. Proc., §§ 469–470; In re Andrew L. (2011)
192 Cal.App.4th 683, 689 (Andrew L.).)
“Given the haste with which petitions are sometimes drafted, . . . the
ability to amend according to proof plays an important role in the overall
dependency scheme. If a variance between pleading and proof—to use the
traditional term of art from civil law [citation]—is so wide that it would, in
effect, violate due process to allow the amendment, the court should, of
course, refuse any such amendment. [¶] The basic rule from civil law,
however, is that amendments to conform to proof are favored, and should not
be denied unless the pleading as drafted prior to the proposed amendment
would have misled the adversarial party to its prejudice.” (In re Jessica C.
(2001) 93 Cal.App.4th 1027, 1041–1042 (Jessica C.).)
“[T]he allowance of amendments to conform to the proof rests largely in
the discretion of the trial court and its determination will not be disturbed on
appeal unless it clearly appears that such discretion has been abused.”
(Trafton v. Youngblood (1968) 69 Cal.2d 17, 31; see Jessica C., supra,
93 Cal.App.4th at p. 1043.) “While the abuse of discretion standard gives the
trial court substantial latitude, ‘[t]he scope of discretion always resides in the
particular law being applied, i.e., in the “legal principles governing the
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subject of [the] action . . . .” ’ [Citation.] ‘Action that transgresses the
confines of the applicable principles of law is outside the scope of discretion.’ ”
(Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 119 (Nickolas F.).)
Jessica C. illustrates the type of amendment that is appropriate in the
dependency context. There, the social services agency filed a petition alleging
the minor’s father had “penetrated his daughter’s vagina with his penis,” but
the child later testified that the father had only “touched her vagina with his
penis . . . .” (Jessica C., supra, 93 Cal.App.4th at p. 1040.) The juvenile court
denied the agency’s request to amend the petition by substituting “touching”
for “penetrating.” (Ibid.) The appellate court reversed, holding the proposed
amendment would not have prejudiced the father since it involved conduct
and legal theories nearly identical to the original allegations. (Id. at p. 1042.)
The court reasoned: “Here, it cannot be seriously maintained that [father]
would possibly have prepared his defense differently if the allegation had
been that he had ‘touched’ his daughter’s vagina with his penis, as distinct
from ‘penetrated.’ The basic allegation was there, and any variance between
‘touching’ and ‘penetrating’ could not have misled him to his detriment. Both
allegations are heinous, and entail the intimate violation of a child.” (Ibid.)
In Andrew L., supra, 192 Cal.App.4th 683, the court held it was not
prejudicial error to conform the petition to proof by striking entirely a section
300, subdivision (a), count, as well as the specific allegation of a diagnosis of a
subdural hematoma caused by trauma in the subdivision (b) count, when the
remaining subdivision (b) allegations that the child was at substantial risk of
serious physical harm or illness were proved. (Id. at pp. 689–690.)
And in In re David H. (2008) 165 Cal.App.4th 1626 (David H.), the
court held a petition under section 300, subdivision (a), that alleged the child
had suffered serious physical harm inflicted non-accidentally by his mother
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could properly be amended to conform to the proof presented at the hearing
that the child faced a current substantial risk of harm if returned to the
mother’s custody. (Id. at pp. 1644–1647.)
Thus, in each of these decisions endorsing a liberal rule for allowing
amendments to conform to proof, the gravamen of the dependency petition
remained the same.
By contrast, in In re G.B. (2018) 28 Cal.App.5th 475 (G.B.), the juvenile
court exceeded its authority to amend the petition to conform to proof. The
court’s amendments included allegations that “completely changed the
grounds for establishing jurisdiction over G.B. 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).” (Id. at
p. 486.)
In reviewing the juvenile court’s amendments to the petition here, we
find this case closer to G.B. than Jessica C., Andrew L., or David H. The
juvenile court’s amendments did not incorporate the same “basic allegation”
at issue. Rather, the court’s newly-added allegations sought to establish
jurisdiction over I.S. under a different legal theory than the original
allegations. Specifically, the allegations in amended count b-1, paragraphs
(b), (c), and (d), essentially sought to establish jurisdiction based on Mother’s
infliction of emotional abuse—a distinct basis for jurisdiction available under
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section 300, subdivision (c), 2 which was not alleged in the original petition.
(See In re Jesus M. (2015) 235 Cal.App.4th 104, 112 [subdivision (b) provides
for jurisdiction based on physical, not emotional, harm].) 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.
Mother also challenges the juvenile court’s amendments to include
count b-1, paragraph (a), which alleged: “Upon learning an adult male
resident of the home, [D.B.], sent the child inappropriate text messages,
Mother did not take sufficient steps to investigate the circumstances behind
the texts that might have led to the discovery of sexual abuse by that male
resident of the home.” Count b-1 originally alleged Mother “knew” I.S. had
been sexually abused because I.S. “reported” the abuse to her, and then,
knowing that information, “forc[ed] the child to live with her abuser.” While
these amendments present a closer question on whether they materially
varied from the original petition, we find they fall on the G.B. side of the line.
We agree with Mother that “[t]hese are entirely different theories: actual
knowledge contrasted with a conclusion that a reasonable investigation
might have led to discovery of sexual abuse . . . .” In particular, the
amendment alleges a more attenuated theory of notice based on different
2 Section 300, subdivision (c), provides that a child comes within the
jurisdiction of the dependency court if “[t]he child is suffering serious
emotional damage, or is at substantial risk of suffering serious emotional
damage, evidenced by severe anxiety, depression, withdrawal, or untoward
aggressive behavior toward self or others, as a result of the conduct of the
parent or guardian or who has no parent or guardian capable of providing
appropriate care.”
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facts—that through a reasonable investigation into D.B.’s texts, Mother
would have learned of facts, which, at most, raised a generalized prospect or
possibility sexual abuse occurred. If Mother’s lack of diligence and the mere
possibility of her knowing about the sexual abuse had been alleged as a basis
for her failing to protect I.S. against the risk of repeated sexual abuse, then
Mother “would possibly have prepared [her] defense differently.” (Jessica C.,
supra, 93 Cal.App.4th at p. 1042.) We thus conclude the juvenile court’s
amendments to the section 300, subdivision (b) allegations materially varied
from the original petition to Mother’s detriment.
This leads us to the Bureau’s argument that “even without reaching the
alternative basis for jurisdiction based on Mother’s failure to protect the
child, . . . the juvenile court properly assumed jurisdiction in this case” under
section 300, subdivision (d). Section 300, subdivision (d) provides a basis for
jurisdiction if “[t]he child has been sexually abused, or there is a substantial
risk that the child will be sexually abused . . . by his or her parent or
guardian or a member of his or her household, or the parent or guardian has
failed to adequately protect the child from sexual abuse when the parent or
guardian knew or reasonably should have known that the child was in
danger of sexual abuse.” The Bureau asserts that Mother did not “challeng[e]
the evidence that [I.S.] had been sexually abused by a member of her
household.” It also points to evidence that Mother did not move out of the
family home while D.B. was also living there, even after learning about the
sexual abuse for the first time through the dependency proceedings. As such,
the Bureau asks us to apply the following principle stated in In re Alexis E.
(2009) 171 Cal.App.4th 438: “When 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
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jurisdiction over the minor if any one of the statutory bases for jurisdiction
that are enumerated in the petition is supported by substantial evidence.”
(Id. at p. 451.) The Bureau goes on, “[a]s long as there is one unassailable
jurisdictional finding, it is immaterial that another might be inappropriate.”
(In re Ashley B. (2011) 202 Cal.App.4th 968, 979.)
We decline to apply those principles here, in light of the procedure by
which the juvenile court amended count d-1 of the petition, a procedure that
the court itself described as an “irregularity”—a procedure, we conclude, that
ultimately prejudiced Mother.
As discussed above, the juvenile court initially dismissed count d-1 in
its entirety based on insufficient evidence, only to reinstate it over Mother’s
objections, and then substantially amend it, more than one month after the
close of evidence. Specifically, at the conclusion of the jurisdictional hearing
on July 1, 2020, the juvenile court dismissed count d-1 by written order. At
the hearing, the court explained, “I think that the evidence is not clear
enough to sustain the petition as initially alleged, . . . because it is not clear
that the child did, in fact, disclose the abuse to Mother before it was disclosed
to the social workers. [¶] Her CIC interview is not super clear on that point,
and the evidence is just not sufficiently clear for the court to find true the
allegations as stated.”
At the hearing on July 22, the Bureau asked the juvenile court for
“clarification” of its jurisdiction findings pertaining to count d-1. The juvenile
court stated that while it found true “the amendment allegation on the (b)
count,” it “did not find there was sufficient evidence to sustain the petition as
to the (d) count.” Despite its prior order expressly dismissing count d-1, the
juvenile court stated its findings were not “sufficiently clear” and it would
have to “reconstruct what [it] was thinking.” The juvenile court then
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explained, “Honestly, some of the findings that I made on the (b) count could
be also findings under (d). I didn’t quite put it that way at the time because
we were kind of under time pressures, as I recall it.” Mother objected to any
modification to the petition to reinstate allegations based on section 300,
subdivision (d). The juvenile court stated it would review the record and
issue an order clarifying its findings.
Then, at the August 5 hearing, the juvenile court, over Mother’s
objections, reinstated count d-1 and amended it to state allegations similar to
those contained in new count b-1 (including the allegation sounding in
emotional abuse within the context of the family meeting). The juvenile court
stated it had sent the parties its written, amended jurisdictional findings the
day before the hearing. The juvenile court apologized for the procedural
“irregularity,” but nonetheless determined Mother would not suffer any
prejudice because “the findings [in amended count d-1] are substantially
similar” to those in amended count b-1.
We disagree with the juvenile court that the procedural irregularity
surrounding its reinstatement of count d-1 resulted in no prejudice to Mother.
A juvenile court has the statutory authority under section 385 to sua sponte
change, modify, or set aside a prior order, so long as it provides the parties
notice and an opportunity to be heard prior to the modification. (See In re
Brianna S. (2021) 60 Cal.App.5th 303, 312 [“The sole procedural prerequisite
to a juvenile court’s exercise of authority under section 385 is that the court
‘provide[ ] the parties with notice and an opportunity to be heard’ ”]; Nickolas
F., supra, 144 Cal.App.4th at p. 98.) “[P]roviding a parent with notice and an
opportunity to be heard safeguards the parent’s rights to procedural and
substantive due process.” (M.L. v. Superior Court (2019) 37 Cal.App.5th 390,
400.)
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Those safeguards were lacking here. Although the juvenile court
announced at the July 22 hearing its intent to reconsider its dismissal of
count d-1, it did not provide the parties with its actual findings until just one
day before the August 5 hearing. In those findings, the juvenile court not
only reinstated count d-1 after dismissing it, but it also substantially
amended it to include new allegations similar to those in amended count b-1.
As a result, Mother lacked sufficient notice of the allegations against her and
thus a reasonable opportunity to prepare for the hearing. (See Today’s Fresh
Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197,
212 [“The opportunity to be heard must be afforded ‘at a meaningful time and
in a meaningful manner’ ”]; cf. Andrew L., supra, 192 Cal.App.4th at p. 689
[amendment to dependency petition did not violate due process where parent
had “explicit notice of the issues being litigated” through the social services
agency’s written section 390 motion].) While Mother voiced her
disagreement with the juvenile court’s modifications, given the manner in
which those modifications came about, the evidentiary portion of the
jurisdiction hearing should have been reopened to allow Mother to present
evidence to refute the amended allegations. (Cf. Nickolas F., supra,
144 Cal.App.4th at p. 117 [“the juvenile court provided Nickolas with notice
and an opportunity to be heard, including the right to present evidence and to
confront witnesses”]; M.L. v. Superior Court, supra, 37 Cal.App.5th at
pp. 400–401 [at modification hearing, “parents were given the opportunity to
challenge the removal request and both mother and M.C. did so—testifying
themselves, cross-examining the social worker, and arguing against
removal”].)
We therefore conclude the juvenile court’s modifications to count d-1
compromised Mother’s due process rights to notice and an opportunity to be
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heard. Moreover, since the amendments to count d-1, like count b-1, included
allegations that materially differed from the original petition, we cannot
confidently say Mother had not been misled to her prejudice in maintaining
her defense. Accordingly, we disagree with the Bureau that the juvenile
court’s findings under section 300, subdivision (d), were “unassailable” and
provide an alternative basis to subdivision (b) for affirming jurisdiction.
(In re Ashley B., supra, 202 Cal.App.4th at p. 979; In re Alexis E., supra,
171 Cal.App.4th at p. 451.)
While we understand the juvenile court’s amendments as a well-
meaning attempt to protect I.S., we are unable to reconcile the juvenile
court’s significant changes in the bases proffered for jurisdiction—and the
manner in which it made those changes— with Mother’s fundamental rights
to notice and a fair opportunity to respond to the actual grounds upon which
the petition was sustained. Accordingly, we conclude, on the record before us,
the jurisdictional findings under section 300, subdivisions (b) and (d), must be
reversed.
The Dispositional Order Is Also Reversed
Because we conclude that the jurisdictional findings must be reversed,
the dispositional order removing I.S. from Mother’s custody also must be
reversed. (In re R.M. (2009) 175 Cal.App.4th 986, 991.)
A Remand for Further Proceedings, Rather than Dismissal of
the Case, Is the Appropriate Relief on Appeal
Our conclusion, however, does not mean that the Bureau cannot try
again. It is entirely possible that valid grounds exist for the juvenile court to
assume jurisdiction over I.S. and, indeed, it may be in her best interests for
the court do so. Further, during the pendency of this appeal, new
circumstances may have arisen, or new information may have come to light,
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that could affect the juvenile court’s evaluation of any new petition filed by
the Bureau.
We therefore do not dismiss the dependency action, but instead reverse
the jurisdictional findings and dispositional orders, and remand this matter
to the juvenile court to allow the Bureau to file a new petition if appropriate,
or, alternatively, to seek dismissal of this proceeding. In any further
proceedings on remand, the juvenile court should give appropriate weight to
all information available concerning I.S.’s and the family’s current
circumstances.
DISPOSITION
The jurisdictional and dispositional orders are reversed. The matter is
remanded to the juvenile court for further proceedings not inconsistent with
this opinion.
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_________________________
Richman, Acting P.J.
We concur:
_________________________
Stewart, J.
_________________________
Miller, J.
In re I.S. (A161417)
21
Trial Court: Contra Costa County Superior Court
Trial Judge: Honorable Leslie G. Landau
Attorney for Plaintiff and Contra Costa County, Sharon L.
Respondent, Contra Costa County Anderson, County Counsel, Carol T.
Children and Family Services Nguyen, Deputy County Counsel
Bureau:
Attorneys for Defendant and Gorman Law Office, Seth F.
Appellant, R.S.: Gorman, by appointment of the
Court of Appeal through the First
District Appellate Project,
Independent Case System
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