In re D.Y.C.
Filed 2/7/12 In re D.Y.C. CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
In re D.Y.C., a Person Coming
Under the Juvenile Court Law.
B233281
(Los Angeles
County
Super. Ct.
No. CK 86122)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
D.L.C. et al.,
Defendants and Appellants.
APPEAL from
a judgment of the Superior Court
of
County, Marguerite Downing, Judge. Reversed.
Gerard
McCusker, under appointment by the Court of Appeal, for Defendant and Appellant
D.L.C.
Marissa
Coffey, under appointment by the Court of Appeal, for Defendant and Appellant
J.C.
Andrea
Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel,
and Denise M. Hippach, Deputy County Counsel, for Plaintiff and
Respondent.
Mother and
father appeal from the judgment entered by the
minor daughter under Welfare and Institutions Code section 300.
regarding alleged sexual abuse, alcohol abuse and domestic violence not
credible and struck all of the allegations of the section 300 petition. Nevertheless, the court
petition to conform to proof by adding and sustaining a new allegation that the
parents were neglectful in failing to obtain a mental health assessment and
treatment for the minor’s “undiagnosed mental health issues.†We reverse, finding the parents failed to
receive adequate notice and a reasonable opportunity to be heard concerning the
new allegation in violation of their right of due process.
FACTS
The
11-year-old minor lived with her parents and adult siblings, J.C. and C.C. On January 10, 2011, a
Family Services (Department) emergency response children’s social worker,
accompanied by a sheriff’s deputy, went to the family home to follow up on a
referral to the effect that the minor had disclosed to the reporter that she
was raped by her brother C.C. when she was six years old and that mother had
responded by kicking C.C. out of the home when later told of the incident. The social worker found the minor at home
with her adult brother, J.C. When
interviewed, J.C. told the social worker the minor had never informed him she
was sexually abused and the siblings got along very well. J.C. also advised he had noticed no
significant change in the minor’s behavior.
The social
worker also interviewed the minor privately.
The minor appeared surprised when the worker informed her of the
referral. When asked if anything had
happened between herself and C.C., the child replied “no.†When asked how she felt about C.C., the minor
said he was “fine†and that he and J.C. protect her. The minor denied that C.C. had ever touched
her in a way that made her feel uncomfortable.
Before
leaving the home, the social worker, who was male, asked the minor if she would
be more comfortable speaking with a female, and the child replied, “I think I
would be more comfortable.â€
The next
day, January 11, 2011, a
female social worker interviewed the minor in private at her middle
school. The minor reported to this
social worker that her 20-year-old brother, C.C., had “raped†her five years
earlier when the minor was six years old.
The minor stated she knew what rape was, saying, “Rape means when
someone has sex with you against your will or when someone sexually assaults you.†The minor said she had learned about rape
from the television show America’s Most
Wanted, and from looking it up on the Internet. The minor reported that C.C. touched her body
with his hands and put “his thing†inside her when no one was around. The minor could not recall the exact number
of times C.C. “raped†her but said it was “multiple times.â€
The minor
claimed to have told mother a year before the interview about the “rape†and
said that mother “panicked.†The minor
stated that mother “took me to the room and pulled down my pants and asked me
to show her where [C.C.] had touched me.
I showed her and she was disgusted with my brother. She kicked him out of the house after I told
her.†However, according to the minor,
mother later allowed C.C. to return to the home because he was “homeless.â€
The minor
also reported that once, when she was eight years old, father tried to touch
her breast and kissed her on the mouth two or three times. Father stopped kissing the minor on the mouth
after she threatened to run away. The
minor did not tell mother about the incidents with father. The child reported that father drank alcohol
“a lot†and became angry and yelled at mother when he was intoxicated.
The minor
told the social worker that on occasion she felt sad and depressed when she
recalled “the incident.†She also
admitted she tried to hurt herself with a knife the previous year, but she did
not do so because she was “scared†and “confused.†She told the social worker at times she
“wishe[d]†she was dead because she knew her family “w[ould] not miss her.â€
The child
was placed immediately in foster care.
On January 14, 2011, the Department
filed the section 300 petition under subdivisions (a) (serious physical harm),
(b) (failure to protect) and (d) (sexual abuse) alleging sexual abuse by C.C.
and father, alcohol abuse by father and domestic violence between the minor’s
parents. The minor was ordered detained
and placed in a foster care home.
Mother denied that the minor ever told
her that C.C. had sexually abused the minor or that mother kicked C.C. out of
the home. Mother indicated that because
C.C. had a history of drug abuse, the minor was never left alone with C.C.
unless J.C. was also present. If J.C.
was not available, mother would ask a neighbor to watch the minor. Mother indicated the minor did well in school
and her teachers always had good things to say about the child. Mother was very surprised about the
allegations concerning father. She
stated that the minor was very attentive and playful with father; he worked
very hard and always had been respectful toward the minor. Mother denied father ever treated the minor
inappropriately and said the minor loved her father and would call him to ask
when he would be home from work.
Father denied being aware of any
sexual abuse of the minor by C.C. He
also denied he or mother had ever asked C.C. to leave the house. Father was very surprised about the minor’s
allegations about him stating he only kissed his daughter on the cheek. He believed things were misinterpreted.
At the detention hearing, the
dependency court ordered a mental health assessment for the minor to determine
the appropriate treatment or services for the child. The court allowed the parents visitation, but
only in a therapeutic setting, and further ordered father’s visits to be
monitored by a licensed clinical therapist.
In a jurisdiction and disposition
report of February 8, 2011, the social worker described the family’s problems
that required intervention and the possible causes of those problems. These included the family’s tolerance of “the
perpetrator,†C.C., the family’s “poor communication skills†resulting in “a
lot of yelling in the home,†the parents’ working long hours and their reliance
on the older siblings to supervise the minor.
The social worker observed that father “just provides for his family,â€
leaving mother to be the disciplinarian, and that mother had been diagnosed
with depression as a result of the family’s losing their home, their having to
file for bankruptcy and work being low.
The report noted, “it was determined
that the minor would be at risk if she were released to either parent[] because
both parents are denying having prior knowledge of the alleged sexual abuse by
the adult sibling . . . .â€
Father, mother and J.C. reported
that the minor would come home with horrific stories of students doing things
in the restroom, such as having sex, using drugs, offering her drugs, breaking
needles and drinking the substances inside the syringes, and acting crazy
during lunch. Mother stated that the
minor reported her friends at school were being physically and sexually
abused. J.C. thought perhaps the minor
was making up stories for attention.
The Department expressed concerns
about the minor’s mental health. The
Department reported that the minor had been exhibiting “unusual behaviorsâ€
since being removed from the home. The
caregiver indicated the minor did not appear to have boundaries and would ask
everyone for hugs; she walked around as if imitating a rabbit; and she stuffed
her mouth with food until it would spill out from the sides. The social worker reported she was “unsure if
the minor is able to distinguish reality from fantasy.†The Department recommended that the
petition true and asked for an Evidence Code section 730 mental health
evaluation of the minor.
At the time of the jurisdiction and
disposition report, the Department had not yet enrolled minor in mental health
services. As a result, the parental
visitation in a therapeutic setting ordered by the court at the detention
hearing had not yet taken place.
Meanwhile, the Department had been pursuing options to provide
permanency for the minor if the parents failed to reunify with her.
The dependency court held a pretrial
resolution conference on February 8, 2011.
Mother, joined by father, requested that the court order the Evidence
Code section 730 mental health evaluation for the minor. The court denied this request and set the
matter for a contested adjudication.
Subsequently, the Department
submitted a last-minute information to the dependency court. The Department advised that the minor was
receiving in-home mental health services and a psychiatric examination was
being scheduled. The minor had “adjusted
well to placement and [was] excelling in school.†She was to be placed with her maternal aunt and
uncle, who, the social worker noted, were willing to provide permanency for the
minor if she failed to reunify with her parents.
At the contested jurisdiction
hearing on March 23, 2011, the Department’s counsel called the minor to
testify in chambers. The minor testified
she was touched by her father in a “private spot,†which, the court noted, was
“her joint area on her left-hand side where her hip and her joint
connect.†The minor also testified that
her brother C.C. “raped†her. However,
when asked by the Department’s counsel what she meant by “raped,†the minor
answered, “Well, to be honest, I never really understood type of words like
that. I just guessed what their [
C.C. “put his part on mine.†When asked
to demonstrate where C.C.’s “personal part†was located, the minor pointed to
what would be the genital areas on a male.
And, when asked to show where her personal part was, the minor pointed
to her genital area. The minor testified
this occurred in C.C.’s room in their old home when she was six and C.C. was
13. She stated it occurred “multipleâ€
times in the morning after father and mother left for work, taking J.C. with
them. She recalled she told mother about
the touching in 2009 or 2010 and that mother “overreacted.†Mother told father and then “kicked outâ€
C.C. But, he returned a week or two
later.
The minor testified she liked
watching “America’s Most Wanted.†She
began watching the show at age seven, and she liked it because it “scaredâ€
her. Besides mother, the minor said she
told her best friend and her science teacher about what her brother and father
did to her. The minor testified she told
her teacher she was “traumatized,†that “two people had raped me,†but that she
meant “one person and the other.†She
then testified she also told her two other best friends as well. Towards the end of her testimony, when
questioned about “who else have you told?†the minor responded, “I’m scared.â€
Mother was present for the contested
hearing but chose not to take the stand.
Father chose not to appear or present evidence, but his counsel was
present and pointed out the numerous respects in which the minor’s testimony
differed from or contradicted what the minor had reported to social
workers. Father’s counsel argued the
minor lacked credibility and she appeared unable to separate fantasy from
reality. Mother’s counsel joined in
those comments and noted that the child used language uncommon for a minor in
describing the alleged events and was unable to recall crucial details
concerning the claimed sexual abuse.
After argument by all parties, a
discussion was held off the record. The
court then issued its ruling, finding the minor not credible “even for the low
burden of proof.†The court dismissed
all the counts pled in the petition. The
court found inconsistencies in the record and in the child’s testimony, and it
concluded the claimed incidents were “more in fantasy than in reality.†The court, however, added and sustained a new
count “b-5,†to the effect that the minor was at risk from mental health
problems.
title="">[2]
Father’s counsel objected to the court’s adding and sustaining the new
allegation, arguing, “It is a due process violation for the court to create an
allegation out of whole cloth.â€
court overruled the objection and continued the matter for disposition.
In the interim, the dependency court
ordered the Department to prepare a supplemental report addressing the
possibility of a home-of-parent order, placing the minor with mother, and low
cost or no cost referrals for father.
The court amended its prior order for visitation only in a therapeutic
environment so as to allow monitored visitation, with the Department having
discretion to liberalize the visits.
Prior to the disposition hearing,
the Department filed a last-minute information noting that, because mother had
failed to enroll in classes such as “sexual awareness education,†and because
“the Department is still unsure if the minor was sexually abused by the father
and the adult sibling,†the Department would oppose placement of the minor with
mother.
At the disposition hearing on
May 6, 2011, counsel for the minor informed the juvenile court that the
minor missed her parents and wanted to return home “today.†The minor’s counsel advised, however, that it
would be in the child’s best interest to complete the school year in her
current placement with her aunt. Counsel
for both parents asked that the minor be returned home. The court did not agree, and it declared the
minor “a dependent of the court under [section] 300[, subdivisions] (a) through
(j) [sic].†The court found there were no reasonable
means to protect the minor without removal from the parents’ home. The court ordered the minor to participate in
an Evidence Code section 730 evaluation, and it ordered reunification services
for both parents and monitored visitation.
Both parents appealed from the
dependency court’s finding and orders.
Mother
contends that the amendment of the petition to add and find true a wholly new
count under section 300, subdivision (b) violated the parents’ right to due
process, requiring reversal.
name="_ftnref5" title="">[5] Alternatively, she contends there was no
substantial evidence supporting the sustained count. Finally, mother contends that the
dispositional orders removing the minor from the home under section 361 and
providing the parents with only monitored visits were excessively
restrictive. Father joins in mother’s
contentions.
The
Jurisdiction and Disposition Orders Violated the Parents’ Right of Due Process
“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 also In re Marilyn H. (1993) 5 Cal.4th 295, 306.) A parent whose child may be found subject to
the dependency jurisdiction of the juvenile court has 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, so that the parent may make an
informed decision whether to appear and contest the allegations. (In re
Wilford J., supra, 131 Cal.App.4th at p. 751, citing
pp. 688-689.) “Notice of the
specific facts upon which removal of a child from parental custody is
predicated is fundamental to due process.â€
(In re Jeremy C. (1980)
109 Cal.App.3d 384, 397; see also In re Gault (1967) 387 U.S. 1,
33-34.) Notice at the time of the
hearing on the merits is not sufficient; the parent is entitled to notice, in
writing, “of the specific charge or factual allegations to be considered at the
hearing†and “at the earliest practicable time, and in any event sufficiently
in advance of the hearing to permit preparation.†(In re
Gault, supra, at p. 33.) The
juvenile court cannot consider “unalleged actions†in making its jurisdictional
findings. (In re J.O. (2009) 178
Cal.App.4th 139, 152, fn. 13.)
In
dependency proceedings, as in civil law in general, “
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, 1042 (
amendment of a petition to “correct or make more specific†the factual
allegations supportive of the offense charged so long as the very nature of the
charge remains unchanged. (
475, 481; In re Andrew L. (2011)
192 Cal.App.4th 683, 689; see § 348; Code Civ. Proc., § 469 et seq.; 5
Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1215, pp. 649-650.) “If a
variance between pleading
and proof . . .
is so wide that
it would, in
process to allow
the amendment, the
court should, of
course, refuse any
such amendment.†(Id. at pp. 1041-1042.)
Explaining this concept, the
example: “[S]uppose
a petition only
alleges, under subdivision
(d) of section 300, a variety
acts perpetrated by
a parent, but
the trial judge
does not find
these are true.
The
to amend the
serious emotional damage under
if false, has
obviously been subject
to emotional abuse.
Such
dependency without giving
the parent adequate
notice of dependency
jurisdiction under an
emotional abuse theory.â€
(
Cal.App.4th at p. 1042, fn. 14.)
The Jessica C. illustration is similar to what took place here. Having found the existing allegations of the
petition not true, the juvenile court (rather than the Department) sua sponte
decided to recast the allegations to allege that the minor had an undiagnosed
mental illness, which the parents should have recognized and for which they
failed to seek treatment. Converting
allegations concerning specified acts of sexual abuse, domestic violence and
alcohol abuse into a failure to obtain medical treatment for an “undiagnosed
mental illness†in the present case amounts to “nothing more than a cheap way
to establish dependency without giving the parent[s] adequate notice of
dependency jurisdiction.†(Jessica C.,
supra,
93 Cal.App.4th at p. 1042, fn. 14.)
The allegations in the original petition concerned specific acts of
abuse wholly dependent upon the testimony of the minor. The parents’ defense relied upon
inconsistencies in the child’s recounting of the alleged events and the sheer
implausibility of her allegations. Had
the parents received adequate notice of a new allegation that they failed to
seek treatment for mental illness in their daughter, they undoubtedly would
have presented a far different defense, such as by cross-examining the
investigating social workers, none of whom apparently recognized the minor’s
supposed undiagnosed mental illness.
court’s amendment of a petition to conform to proof ordinarily is reviewed for
an abuse of discretion. (Jessica C.,
supra, 93 Cal.App.4th at p. 1043; In re Man J., supra,
149 Cal.App.3d at p. 481.) In this
case, however, the variance between pleading and proof was so wide that the
court’s fashioning a new allegation to conform to proof, without giving the
parents prior notice or an opportunity to defend, violated the parents’ right
of due process. (In re J.T. (1974) 40 Cal.App.3d 633, 642.)
“In dependency proceedings, due
process violations have been held subject to the harmless beyond a reasonable
doubt standard of prejudice.†(
Cal.App.4th 181, 193; see also In re
Daniel S. (2004) 115 Cal.App.4th 903, 912-913; In re Angela C. (2002) 99 Cal.App.4th 389, 391, 394.) On the record before us, we cannot conclude
the error was harmless. We cannot
speculate upon what evidence the parents might have submitted or what defense
they might have raised had they received adequate notice of a claimed failure
to seek adequate treatment for supposed mental illness in their daughter. (See In
re Jessica G., supra, 93 Cal.App.4th at p. 1189;
661, 673.) The Department has not
asserted or shown that the juvenile court’s error was harmless beyond a
reasonable doubt.
Because we find the violation of the
parents’ due process rights was not harmless beyond a reasonable doubt and
requires reversal, we need not consider whether there was sufficient evidence
to support the judgment or whether the juvenile court’s orders were
appropriate.
The judgment is reversed.
FLIER,
J.
WE CONCUR:
BIGELOW, P. J.
GRIMES, J.
name="_ftn1" title="">[1] All
statutory references are to the Welfare and Institutions Code unless otherwise
indicated.
name="_ftn2" title="">[2] The
new allegation stated: “The
child . . . has undiagnosed mental health issues, symptoms
[that] include inappropriate behavior, food binging, lack of personal physical
boundaries, depression and the inability to distinguish between truth and
fantasy. Her
parents . . . knew of these symptoms and have neglected to
obtain appropriate mental health assessment and treatment for [the minor]. Such neglectful behavior in not obtaining
needed mental health services . . . endangers the child’s
physical and emotional health and places the child at risk of physical and
emotional harm, damage and danger.â€
