Opinion
B309068
11-30-2021
In re X.G. et al., Persons Coming Under the Juvenile Court Law. v. T.G., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
The Law Office of Richard L. Knight and Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court for Los Angeles County No. 20CCJP03561A-D, Martha A. Matthews, Judge. Affirmed.
The Law Office of Richard L. Knight and Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.
WILLHITE, J.
In this dependency appeal, appellant T.G. (mother) appeals from the jurisdiction and disposition orders of the juvenile court with respect to her four children: X.G., Jo.G., E.G., and Je.G. She contends the juvenile court violated her right to due process when, after tentatively determining that the evidence presented at the adjudication hearing did not support the counts as alleged, the court amended the allegations of the petition (Welf. & Inst. Code, § 300 ) to conform to proof at the request the request of the Los Angeles County Department of Children and Family Services (the Department). We conclude that the variance between the petition as originally filed and as it subsequently was amended was so slight that the juvenile court's amendment did not prejudice mother and did not result in the court taking on the role of an advocate. Accordingly, there was no due process violation and we affirm the orders.
Further undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
In June 2020, the Department received a referral regarding domestic violence between mother and Jose V., the father of Je.G. (who was two months old). On June 4, 2020, a social worker from the Department went to the shelter where the family was living (Shepherd's House) and interviewed mother and the three oldest children (who had a different father, Jose G., and ranged in age from seven to 16 years old); the social worker was unable to speak with Jose V., who had left the shelter the previous night and whose whereabouts were unknown. Mother told the social worker about several incidents of domestic violence that had taken place over the previous year and a half, including an attempted sexual assault Jose V. committed against her while Jo.G. was in the same room, as well as other incidents of Jose V.'s aggressive and extremely jealous behavior toward her. The two oldest children told the social worker that mother and Jose V. fought almost every day, and both children said they had witnessed violent incidents between them; the seven-year-old denied that mother and Jose V. fought or that they ever hit each other.
The social worker recommended to mother that she and her children go into a domestic violence shelter, and provided mother with resources. Mother said that she preferred not to go to a domestic violence shelter, but she would do so and would get a restraining order if she felt she needed to. The social worker warned mother that she could lose custody of her children if she failed to protect them.
Five days later, mother spoke to the newly-assigned social worker. Mother told her that she had obtained an emergency protective order, as the previous social worker had requested, but she did not plan to extend that order because she did not think she needed a restraining order. When asked about her plans regarding Jose V., mother said she intended to continue her relationship with him because she believed he should be involved in his daughter Je.G.'s life. After a further discussion in which the social worker told her that the Department would be assessing mother's ability to protect her children, mother told the social worker that she would not continue her relationship with Jose V. and would obtain a restraining order. Mother said she had not seen Jose V. in a week and did not know where he was staying; she said he did not have a phone.
On June 17, 2020, the social worker went to see mother at Shepherd's House. As the social worker walked from her car toward the residence, she observed a man fitting the description of Jose V. sitting under a tree, texting and nervously glancing at her. When she went inside, she observed mother on the couch, also texting; she continued to text throughout their interaction. Mother told the social worker that she had not had any contact with Jose V., and denied that Jose V. had attempted to contact her. Mother also told the social worker that even though Jose V. had threatened to kill her if she left him or if he ever saw her with another man, she said that Jose V. had not, and would not, ever hurt her or her children. When the social worker left the residence the man she observed earlier was still there, and still texting. The following day the social worker asked mother if she had a photo of Jose V.; mother at first said that she did not, but then said she had one "on her other phone."
Mother had gone to court earlier that day to try to obtain the restraining order that the social worker had suggested she obtain. However, the court denied the request for a temporary restraining order on the grounds that the facts stated in the submitted paperwork "[did] not show reasonable proof of a past act or acts of abuse and . . . [did] not describe in sufficient detail the most recent incidents of abuse, such as what happened[, ] the dates, who did what to whom, or any injuries or history of abuse."
Based upon the social worker's interviews with mother and others, the Department believed that mother was a "classic victim of domestic violence," and lacked "protective capacity," which put her children at risk of suffering emotional and physical harm. The Department obtained a removal order on June 25, 2020, and detained the children five days later.
On July 2, 2020, the Department filed a dependency petition under section 300, alleging two counts. The first count (count a-1) was alleged under subdivision (a) of section 300, and the second (count b-1) was alleged under subdivision (b). Both counts alleged identical facts, under different legal theories.
The factual allegations were: "The children['s] . . . mother . . . and the mother's male companion, Jose [V.], father to the child, [Je.G.], have a history of engaging in violent altercations in the presence of the children. On 6/3/2020, the [V.] father pushed the mother. The [V.] father threatened to kill the mother. In February 2020, the [V.] father slammed a door into the mother's back, while the mother was pregnant with the child, [Je.G.], resulting in the mother getting contractions and her amniotic fluid leaking. On a prior occasion, the [V.] father pushed the mother onto a bed, while the mother was holding the child, [Je.G.] in her arms. The father got on top of the mother, resulting in the child, [Je.G.] crying. On a prior occasion, the [V.] father grabbed the mother's legs and spread them apart with force. On prior occasions, the father spied on the mother and forced the mother to engage in sexual intercourse. On numerous prior occasions, the [V.] father threatened to kill the mother. On prior occasions, the [V.] father ripped the mother's clothes. On prior occasions, the mother and father pushed each other. Such violent conduct by the mother and the [V.] father endangers the children's, physical health and safety and places the children at risk of serious physical harm, damage and danger."
With regard to legal theories, count a-1 (which was entitled Serious Physical Harm) alleged that "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian." Count b-1 (which was entitled Failure to Protect) alleged that "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness . . . as a result of the failure or inability of his or her parent or legal guardian to supervise or protect the child adequately." Both of these allegations were set forth in the pre-printed parts of the pleading forms the Department used in its petition.
The detention hearing was held on July 7, 2020. The juvenile court found a prima facie case that the children were described by section 300. The court ordered the children detained, and released the three older children to their father, Jose G.; the youngest child (whose father is Jose V.) was detained in shelter care.
In the period between the detention hearing and the contested jurisdiction/disposition hearing (which took place over two sessions, on Oct. 21 and Nov. 16, 2020), mother at first continued to deny that any domestic violence occurred. However, she did participate in a domestic violence program and individual therapy as recommended by the Department, and by late September 2020 she had disclosed to her therapist at least one incident of domestic violence.
At the first session of the contested jurisdiction/disposition hearing, the Department entered into evidence its reports and other documentation, and the juvenile court heard testimony from mother. Mother was asked whether she was aware of the allegations before the court, and she said that she was. When asked what those allegations were, she responded, "About domestic violence with my partner." She then admitted certain of the incidents alleged in petition in which Jose V. was violent or threatened to kill her, and explained what she was learning in her domestic violence classes and in therapy about the impact on her children of witnessing domestic violence and what she could do to protect them.
No other witnesses were called. Upon the conclusion of mother's testimony, the juvenile court announced its tentative ruling was to sustain both counts of the petition, subject to argument. Mother's counsel asked the court to strike mother from the petition in its entirety. With regard to count a-1, mother pointed to the last sentence of the factual allegation-"Such violent conduct by the mother and the [V.] father endangers the children's, physical health and safety and places the children at risk of serious physical harm, damage and danger"-and observed that there was no evidence that mother initiated any violent conduct. Instead, counsel asserted the only evidence was that she was the victim of domestic violence.
The court agreed, admitting that it "had thought that mother was in there as a failure to protect." The court continued: "I do believe that it appears mother's counsel is correct that those counts should [be] amended to take out the language suggesting that mother is also a perpetrator of domestic violence." Counsel for the Department responded, "I do believe that the only evidence that mother perpetrated physical violence is some of the incidents where there was some shoving involved. I would submit the issue to the court that the court could amend to [proof] that mother failed to protect as the [V.] father was clearly the aggressor in almost every incident."
Mother's counsel objected to the Department's request, arguing that amending the petition to allege a failure to protect would be a violation of due process. The court agreed, saying that amending the counts by adding a failure to protect allegation would be "a substantially different allegation" because "[i]t would be the difference between being an offending party and a non-offending party." The court suggested that it could amend to conform to proof by amending the last two sentences of each count to say "The [V.] father pushed the mother. Such violent conduct by the father [endangers] the children's health." Counsel for the Department observed that if the court were to make only that amendment, the three older children would not be dependents of the court because Jose V. was not their father. Instead, counsel argued that the court could rely upon the phrase "conduct by the mother" to find a failure to protect because the conduct that mother engaged in was maintaining a relationship that involved significant domestic violence, which counsel asserted was "the underlying point of the petition."
The court agreed that the children would remain at risk if it amended the petition as it had proposed. Therefore, it concluded that the appropriate thing to do was to give mother's counsel notice that the court intended to amend the petition to conform to proof by "by essentially conforming it to what the Department probably intended to plead in the first place, which is that mother failed to protect her children." However, the court determined that mother must be given an opportunity to defend herself against a failure to protect allegation. Thus, the court continued the hearing "so that mother may, if she wants, present any additional evidence she may have that she did not fail to protect her children against exposure to domestic violence by Mr. [V.]." After asking mother's counsel about the amount of time she would need, the court continued the hearing to November 16, 2020.
Mother did not present any additional evidence at the jurisdiction portion of the continued hearing. Instead, mother's counsel objected to the proposed amendment, citing to In re G.B. (2018) 28 Cal.App.5th 475, and arguing that the proposed amendment changed the nature of the allegation and therefore violated due process. The court disagreed. It observed: "The basic factual issue in this case is whether the domestic violence that has occurred has put this child at risk of harm, and the Department very clearly pled domestic violence as the basic risk factor that the child was suffering from." The court noted that there were "two things that were not entirely accurate about the way the Department worded the counts." First, the petition alleged that both mother and father were perpetrators of the violence, but the preponderance of the evidence was that mother was not a perpetrator. Second, "there was substantial evidence that mother endangered her child in a slightly different way by not protecting the child from the [V.] father's domestic violence." The court concluded that amending the petition to conform to proof to add a failure to protect allegation fell within the scope of permissible amendments under In re G.B., supra.
In response, mother's counsel argued that mother should be stricken from the a-1 count because there was no language in that count regarding a failure to protect. The Department and the court agreed that mother's failure to protect should only be part of count b-1. The court struck mother from the a-1 count, amended the b-1 count to remove the allegation that mother pushed father, and amended the last sentence of that count to read: "Such violent conduct by the [V.] father and mother's failure to protect the children from the [V.] father's conduct endangers the children's, physical health and safety and places the children at risk of serious physical harm, damage and danger." The court then found that the Department established that mother's failure to protect caused a risk of future harm to the children and it sustained the petition, as amended, as to mother. The court proceeded to disposition, declared the children dependents of the juvenile court and removed them from mother's and Jose V.'s care. Mother timely filed a notice of appeal from the jurisdiction/disposition orders.
DISCUSSION
On appeal, mother contends that, by amending and then sustaining the petition, the juvenile court erred in two ways: first, the court exceeded its authority by not striking all allegations regarding mother from the petition once it found those allegations were not substantiated; and second, the court violated mother's due process rights by assuming the roles of advocate, trier of fact, and judge. As to both asserted errors, mother relies in large part upon In re G.B., supra, 28 Cal.App.5th 475. Mother's attempt to fit the facts of this case into the holdings of In re G.B. fails, however, because of several key differences.
In In re G.B., the Department filed a petition under section 300, subdivisions (b)(1) and (d), alleging that G.B.'s mother's boyfriend had sexually abused G.B. and that the mother was aware of and failed to protect G.B. from that abuse. Although the petition named G.B.'s father as one of her parents, it did not allege that he had engaged in any wrongful conduct. (In re G.B., supra, 28 Cal.App.5th at p. 480.) At a pretrial conference held before the original jurisdiction hearing, the juvenile court noted that it had reviewed the Department's jurisdiction/disposition report. The court warned the parties that if at the jurisdiction hearing it concluded the allegations against the mother and her boyfriend were false, "it would 'amend[] the petition to have the father be offending for calling in false allegations' and issue a custody order giving 'sole legal, sole physical [custody] to the mother, with monitored visitation for the father.'" (Ibid.)
The jurisdiction hearing was held two weeks later, during which the mother, father, and G.B. testified, and other evidence was presented. The court issued its findings and orders without hearing argument from any of the parties, finding that the evidence did not support an allegation against the mother. But instead of dismissing the petition-and without any request made by the Department-the court stated it intended to sustain allegations against father under section 300, subdivisions (a), (b), and (c), because it believed that the father had coached G.B. to fabricate the sexual abuse allegations. (In re G.B., supra, 28 Cal.App.5th at p. 481.) The court then continued the hearing after concluding it had not given father sufficient notice to allow him to contest these allegations. (Ibid.)
The continued jurisdiction hearing took place in several sessions over several days. During one of those sessions both the Department and G.B.'s counsel argued that the court should dismiss the allegations against the father. (In re G.B., supra, 28 Cal.App.5th at p. 482.) However, the court "concluded it was authorized to amend the dependency petition on its own motion to include allegations against father, even though he was a nonoffending parent under the original petition." (Ibid.) The court also found that father had not been prejudiced by the amendments to the petition because the court had provided him adequate notice and an opportunity to defend against those amendments. (Id. at p. 483.) The court then adjudicated its amended allegations. Despite the Department's and G.B.'s counsel's argument that all of those allegations should be dismissed, the court sustained the allegations under section 300, subdivision (c), and declared G.B. a dependent of the juvenile court. (Ibid.)
The appellate court reversed the juvenile court's order on the same two grounds that mother asserts in the present appeal: (1) an amendment to conform to proof is not permitted when there is too wide a variance between the pleading and the proof because such an amendment violates due process; and (2) by assuming the role of advocate and trier of fact, the juvenile court violates the injured party's due process right to a fair trial before a disinterested neutral. (In re G.B., supra, 28 Cal.App.5th at pp. 484-489.) Neither of those grounds apply to the facts of the present case.
A. Amendment to Conform to Proof
As the In re G.B. court observed, "[t]he discretion to file a section 300 petition alleging that a child comes within the juvenile court's dependency jurisdiction belongs to the social worker, not the court." (In re G.B., supra, 28 Cal.App.5th at p. 484.) Therefore, if the juvenile court "finds the social services agency has not proved by a preponderance of the evidence any of the petition's allegations, the court usually must dismiss the petition, terminate any detention orders relating to the petition, and order the child returned to the custody of his or her parents." (Id. at pp. 484-485.) However, the court "may . . . amend a petition when the social services agency has not proved the exact allegations of the petition," in order to correct or make those allegations more specific. (Id. at p. 485.) In fact, amendments to conform to proof "are favored in the dependency context, in light of the 'haste with which petitions are sometimes drafted.'" (Id. at pp. 485- 486.)
Despite the policy favoring amendments to conform to proof in dependency cases, the court in In re G.B. cautioned that such an amendment is not permitted "'[i]f a variance between pleading and proof . . . is so wide that it would, in effect, violate due process to allow the amendment.'" (In re G.B., supra, 28 Cal.App.5th at p. 486.) The court pointed to In re Jessica C. (2001) 93 Cal.App.4th 1027 (Jessica C.) to "illustrate[] the type of amendment that is appropriate in the dependency context." (In re G.B., supra, 28 Cal.App.5th at p. 486.)
In Jessica C., the petition had alleged that the child's father had "penetrated his daughter's vagina with his penis," but the evidence presented at the adjudication of the petition was that the father had touched the daughter's vagina with his penis. Counsel for the agency requested that the petition be amended according to proof by substituting the word "touching" in place of "penetrating," but the juvenile court denied the request. (Jessica C., supra, 93 Cal.App.4th at p. 1040.) Pointing to the "basic rule . . . 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," the appellate court reversed, concluding that "it cannot be seriously maintained that [the 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." (Id. at p. 1042.)
The court in In re G.B. distinguished Jessica C., finding that in the case before it, "[u]nlike in Jessica C., the [juvenile] court's amendments did not incorporate the same 'basic allegation' at issue in the original petition. Rather, the court's newly added allegations 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)." (In re G.B., supra, 28 Cal.App.5th at p. 486.) The court concluded: "Because no party had proposed any amendments to the petition before the court found the original allegations were unsubstantiated, the court should have dismissed the petition, terminated its detention orders, and returned G.B. to her parents' custody." (Ibid.)
In contrast to In re G.B., in the case before us the Department requested that the juvenile court amend the petition before the court made its findings. Although the court had announced its tentative findings to sustain the petition on both counts, it withdrew those tentative findings in response to mother's argument. Thus, while the court then indicated that the Department had not established the allegations of the petition as alleged, it did not make any finding to that effect. Moreover, the amendments requested by the Department incorporated the same basic allegation at issue in the original petition.
Count b-1 of the original petition alleged as to both mother and Jose V. a failure to protect, and described the danger to the children as their exposure to violent behavior by mother and violent behavior by Jose V. The amended count b-1 continued to allege a failure to protect as to both mother and father, but described the danger to the children as the exposure to violent behavior only by Jose V., and specified that mother was charged only with a failure to protect the children from that danger. Like the court in Jessica C., we conclude "it cannot be seriously maintained that [mother] would possibly have prepared [her] defense differently" if the original allegation had been limited to her failure to protect the children from violent conduct by Jose V. rather than by both Jose V. and mother. (See Jessica C., supra, 93 Cal.App.4th at p. 1042.)
We note that in her appellant's reply brief, mother seems to assert that the original petition did not, in fact, allege that mother failed to protect her children because the pre-printed language on the pleading form used for count b-1 is conclusory and fails to include the facts supporting that allegation. But that language is not meaningless. It sets out the legal theory upon which the Department is seeking to establish jurisdiction over the children, i.e., the parents' failure to protect. The factual basis for jurisdiction under that theory-i.e., the description of what the parents failed to protect the children from-is then provided by the allegations the Department sets forth underneath that preprinted language.
In short, in this case, there was no amendment to that preprinted language, and therefore no change in legal theory. Further, the facts upon which the juvenile court found jurisdiction were the same facts (minus the allegation of violent conduct by mother) as were alleged in the original petition. Accordingly, we conclude the juvenile court did not err by amending the petition to conform to proof.
B. Impartial Arbiter
Mother contends the juvenile court violated its role as neutral arbiter by "improperly stepp[ing] into the shoes of the prosecutor by doing [the Department's] job by creating and writing an allegation which changed the legal theory [mother] had been charged with." The facts of this case do not support mother's contention.
In the case before us, it was the prosecuting authority-counsel for the Department-who, after acknowledging that mother was not a perpetrator of violence as the original petition alleged, asked the court to amend the b-1 count, which generally alleged failure to protect, to specify that mother failed to protect the children from Jose V.'s violent conduct. Thus, unlike in In re G.B. and the other cases mother cites, the juvenile court here did not amend on its own motion or initiative. And, unlike In re G.B., the juvenile court here did not sustain its own allegation over the objection of the prosecuting party, the Department. In short, the juvenile court acted appropriately in its role as an impartial arbiter.
DISPOSITION
The jurisdiction and disposition orders are affirmed.
We concur: MANELLA, P. J., CURREY, J.