In re Javon N.-M.
Filed 11/7/13 In re Javon N.-M. CA2/2
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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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
In re JAVON N.-M., a Person
Coming Under the Juvenile Court Law.
B245939
(Los Angeles
County
Super. Ct.
No. CK94372)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Appellant,
v.
ANTHONY M.,
Defendant and Appellant.
APPEAL from
orders of the Superior Court
of
County. Valerie Skeba,
Juvenile Court Referee. Affirmed.
Anne E.
Fragasso, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Sarah
Vesecky, Deputy County Counsel, for Plaintiff and Appellant.
No
appearance for Minor.
* * * * * *
Appellant
Anthony M. (Father) appeals from the juvenile court’s
petition
pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (b)
child Javon N. a dependent of the court and placing him with a relative. The Los
Angeles County Department of Children and Family Services (Department)
appeals from the jurisdiction order. We affirm. Substantial
evidence supported both the juvenile court’s jurisdictional findings and
disposition order, as well as its modifications to the dependency petition to
conform to proof.
FACTUAL AND PROCEDURAL BACKGROUND
Preceding Detention.
T.N.
(Mother) and Father are the parents of Javon, born in March 2009; S.N., born in
April 2001, is his half-brother. Mother
and S.N. first came to the attention of the Department in October 2004 when
Mother was found sleeping with S.N. in a parked car. There were no allegations of abuse, and S.N.
was found to be well cared for in the home of maternal grandmother Kimberly N.
(MGM). In November 2008 and February
2009, and again in September 2010 after Javon was born, allegations of Mother’s
physical abuse against S.N. were determined to be unfounded. In May 2011, though allegations of physical
abuse and general neglect by Mother were deemed unfounded, an allegation of
caretaker abuse was substantiated and the family participated in voluntary
family maintenance (VFM) services between August 2011 and June 2012.
The family
came to the Department’s attention again on October 12, 2012 when a referral reported that Mother had
been arrested for ramming her vehicle into Father’s vehicle in front of an
elementary school. A social worker
investigated, interviewing a deputy who had received a report about the
incident from Father. According to the
deputy, Father reported that Mother had a child in the car with her, and after
he and Mother had a verbal altercation over her seeing Father’s girlfriend in
his vehicle, Mother intentionally hit his car twice with her car. The deputy observed dents and scratches on
Father’s vehicle. The same deputy
interviewed Mother, who stated she unintentionally hit Father’s car once and
did not recall hitting it a second time.
She confirmed that S.N. was in her car during the incident. Javon was not in the car.
In an
interview with the social worker, S.N. stated that Mother and Father had
separated one week earlier. He had heard
Mother and Father frequently argue in their bedroom and had observed them throw
and break things during arguments. He
had never observed any physical violence between them, nor had he ever been
physically abused. With respect to
Mother’s arrest, he stated that Mother had picked him up from school and,
because it was raining, invited Father’s daughter Tiarra to wait in her car
until Father arrived. When Father
arrived, he and Mother argued while sitting in their vehicles. When Father got out of his car, Mother
proceeded to hit Father’s vehicle with hers, and then turned around at the end
of the street and hit his vehicle again.
The social
worker interviewed Mother in jail, who reported to be suffering autoimmune
hepatitis and liver failure from being two months pregnant. She stated that she had stopped using corporal
punishment, but that she and Father on occasion verbally abused the
children. For example, when S.N.
received a “D†on his report card she asked him if that meant “dummy.†She stated she and Father had known each other
for eight years, and that the domestic violence between them had begun when she
was pregnant with Javon. She stated that
Father had punched her in the face, choked her, pushed her, grabbed and thrown
her and pinned her to the ground. She
also stated that he had raped her on multiple occasions. On one occasion he threw coins at her face,
resulting in a swollen eye. Though she had
contacted law enforcement a few times to “keep the peace,†she never reported
the domestic violence. She admitted both
she and Father would throw and break things, though she denied that any
domestic violence had occurred in front of the children. Mother also reported a history of mental
health issues. In connection with the
incident leading to her arrest, her account of the initial argument was similar
to S.N.’s; she stated, however, that she unintentionally hit Father’s car while
pulling away and had no recollection of hitting the car a second time.
S.N.’s
father reported that Mother uses S.N. as a pawn and that he would like S.N. to
live with him. Though stating that
Mother has been a good parent to S.N., he reported that Mother had a history of
alcohol abuse and mental health issues, and stated that the two separated
following an incident where Mother threatened to hit him. He stated that because Mother had denied him
visitation with S.N., he had been visiting him through relatives and also
providing money for him through the same relatives without Mother’s knowledge. Mother stated that S.N.’s father was a liar
and did not provide for S.N., and that she would rather have Father care for S.N.
The social
worker also interviewed the MGM, who knew that Mother and Father verbally
argued but was unaware of any domestic violence.
The
Department detained the children, placing S.N. with his father and Javon with
the MGM.
300 Petition.
The Department filed a section 300
petition, alleging under subdivisions (a) and (b) that Mother and Father had a
history of domestic violence and engaging in violent altercations that
endangered the children’s health and safety and placed them at risk of
harm. The petition identified specific altercations,
including Mother’s striking Father’s vehicle with her vehicle; Father’s punching,
choking, pushing and forcibly raping Mother; and Father’s throwing coins at
Mother causing a swollen eye.
At the October 17, 2012 detention
hearing, the juvenile court denied Father’s request to have Javon released to
him. Citing the evidence of domestic
violence, the juvenile court ordered both children detained in their respective
placements and allowed Mother and Father monitored visitation. It gave the Department discretion to
liberalize Father’s visits and to release Javon to him. At Father’s request, the juvenile court also
issued a temporary restraining order
against Mother.
The Department’s Reports.
The Department’s November 2012
jurisdiction/disposition report attached an incident report prepared by the Los
Angeles County Sheriff’s Department. According to the incident report, in addition
to Father and S.N., Tiarra and Father’s girlfriend Jennifer also stated they
witnessed Mother intentionally sideswipe Father’s car twice. Mother maintained the first collision was
accidental and did not remember a second collision. As a result of the incident, Mother was
charged with felony assault with a deadly weapon and felony vandalism.
The social worker reinterviewed S.N. He reiterated that Mother had intentionally
crashed her car into Father’s, but added:
“‘It’s his [] fault for cheating on my mom. That’s what he gets. My mom hit his car twice. They would argue every day about stupid
stuff. They would yell in each other’s
face. [Father] would tell my mom “I will
hit you†every day but I never saw him hit my mom. He never touched her. My mom was the one that would throw
things. My brother would be near by when
that happened.’†He added: “‘Everything was ok before [Father] came
along. They [Mother and Father] would
fight about everything like little children.’†He was happy in his placement with his father.
S.N.’s father had never observed
domestic violence between Mother and Father, but both he and another relative
had noticed that Mother looked haggard and disheveled on occasion.
In a further interview with Mother,
she reported that Father first raped her in 2008. The two only verbally argued from that time
until February 2012 when Father was released from jail after being arrested for
driving under the influence; at that time he resumed raping and punching her. She noticed the incidents occurred primarily
when Father would drink. She described a
particular incident in March 2012 when he threw coins at her face. Though she contacted the police, she lied
about why her eye was swollen. She also
described an incident in early May 2012 when she and Father were driving home
from a concert. Mother was driving
because Father had been drinking, but the two began arguing when she got
lost. She pulled over when Father
“busted†the car windows, and Father began punching her when she crawled in the
back seat because she was not feeling well. Mother said her current pregnancy was the
result of Father forcing her to have sex with him.
The Department characterized the
future risk of abuse and neglect of the children as “high,†noting that
multiple witnesses confirmed Mother intentionally hit Father’s car; Mother
alleged repeated rapes and other violence by Father; Father had been arrested
for driving under the influence and Mother reported his violence worsened when
he drank; and S.N. reported Mother and Father argued every day. It recommended that the children be declared
dependents of the court, that Mother and Father receive reunification services
and that the children remain suitably placed.
An addendum report contained
interviews with Javon and Father. Though
Javon was verbal, he could not provide a meaningful statement about the petition’s
allegations. He did state that Mother
and Father would “‘fight.’†Father
denied all reported incidents of violence with Mother except for Mother’s
hitting his car. He admitted to being
arrested in July 2012 for driving under the influence and being placed on
summary probation,
title="">[2] but he stated he was wrongfully charged as a
result of an officer forcing him to take a breathalyzer test multiple
times. He also stated he was found as a
failure to appear because he did not pay his attorney. He desired custody of Javon, noting that
visitation had been difficult since the MGM did not like him. The MGM reported that Father had not seen
Javon or tried to call him since the detention hearing.
The Department also interviewed
Father’s ex-wife and the mother of his daughters. She reported that she separated from Father in
2008; she discovered he was cheating on her and stabbed him in the arm. She was arrested and while she was in jail, Father
obtained custody of the girls. She
regained physical custody of them in October 2012. The two girls reported that Mother and Father
were constantly yelling at each other, but they denied witnessing any physical
altercations between the two of them.
For the December 6, 2012
jurisdiction/disposition hearing, the Department also submitted a
multidisciplinary assessment team summary of findings. The assessor was unable to interview Father,
as he failed to call or attend a scheduled meeting. The assessment indicated that Javon was doing
well in his placement with the MGM.
Hearing.
The juvenile court received the
Department’s reports into evidence at the beginning of the
jurisdiction/disposition hearing.
name="_ftnref3" title="">[3] Mother
testified first. She declined to answer
certain questions about hitting Father’s car on the ground her answers may
incriminate her.
title="">[4] She
testified that there had been domestic violence in her relationship with
Father, with the first incident occurring in 2008 and resulting in a
restraining order against Father. The
most recent incident occurred in September 2012 when Father forced her to have
sex with him and threw things around the garage. She stated she telephoned the Sheriff’s
Department, but they refused to send anyone unless she could identify damage to
the garage. She described other
incidents where Father threw items at her, beat her while she was in the back
seat of a vehicle and pinned her to the ground. She stated she had called the police four
times in 2012 as a result of this violence, and that the police had come to her
house at least once. She did not tell
the police about any sexual abuse. She
believed Father was under the influence of alcohol during all these incidents
and was unsure whether the children had witnessed any of them. She further stated that Father had moved out
in October 2012 but saw Javon when he would come over to visit.
Mother conceded that Father had
been a good provider for his daughters. She identified two incidents, however, where
Father hit one of his daughters. The
first time, Father slapped his daughter across the face after she informed
Mother he had been cheating on her; Mother only observed the aftermath of the
second time, seeing the daughter with facial bruises and a cut lip. Mother did not contact the police or the
Department as a result of these incidents. She added that Father treated Javon
differently than his daughters, possibly because he had a hyphenated last
name. She also stated that S.N. recently
confirmed to her that Father had hit him with a belt in September 2012.
Father testified that he and Mother
had verbal altercations during their five-year relationship, but denied any
physical violence or rape. According to
Father’s version of the 2008 incident, he had gone over to Mother’s home to
break up with her because he was married, but the two ended up having
consensual sex. When he then tried to break
up with her, she became angry and threw things at him. Also according to Father, someone else then
vandalized Mother’s home the following day, but because Mother was angry with
Father she blamed the vandalism on him. He stated that the two resumed their
relationship sometime after that. He
admitted that Mother had called the police three or four times, though he had
never been arrested.
Father testified that he drinks
alcohol rarely—approximately once per month. He denied drinking to the point of intoxication
and denied that he had been drinking when he was arrested for driving under the
influence. He complained that the
breathalyzer machine was not working and the police refused his request to see
a supervisor.
He described the incident where
Mother hit his car. He noted that he did
not call the police about Mother hitting his car; his tires were slashed the
following day and in connection with the investigation of that incident he told
the officers about Mother’s conduct the previous day. He also indicated that on the night the two
drove home from a concert they had both been drinking and that Mother—not
he—kicked out the back window of the car. He denied any physical abuse of his daughters;
he stated Mother had hit one of them once. He stated he had been arrested once for
domestic violence involving another individual, but he was not the aggressor.
Father also testified that he had
not seen Javon because no one returned his calls, he only recently received the
MGM’s telephone number and there had been some issue with the MGM’s living
arrangements.
All parties rested after Father’s
testimony. The juvenile court stated
that it did not want to hear closing arguments, as it did not think they would
be particularly helpful. It further
stated that it did not find Father to be very credible and found Mother to be
only a little more credible. It believed
that some of the incidents Mother described had happened, but it did not
believe that Father had been assaulted by two different women. It characterized Mother and Father as having
an “extremely conflicted and toxic relationship,†and observed “I see parents
who basically have little control over themselves and they take their
frustration and anger out on each other.â€
The juvenile court was also critical
of the Department’s investigation, noting that Father had testified about an
arrest for domestic violence and the social worker failed to provide any
records regarding that claim. It further
noted that the Department failed to follow up with any of the individuals with
whom Mother had discussed Father’s assaults.
With respect to jurisdiction, the
juvenile court stated: “I do believe
that there’s a substantial amount of verbal abuse going on as well as physical
abuse and I think probably both parents were the aggressors. And I think that while the children may not
have seen all of the physical abuse or even most of it, I think there’s
certainly enough evidence they heard the after effects which is the screaming
and yelling and swearing and throwing of things that went on in the home. All right.
Since I don’t have a clear determination of exactly what went on, I’m
going to strike much of the details from the (a) count and (b) count and
however I do believe very clearly very certainly that there was domestic
violence going on.†It sustained the
petition as modified, and declared the children dependents of the court
pursuant to section 300, subdivisions (a) and (b).
Proceeding to disposition, the
juvenile found by clear and convincing evidence that a substantial danger
existed to the physical health of the children and there existed no reasonable
means to protect them absent removal from Mother and Father. It ordered that Javon remain suitably placed.
domestic violence counseling and individual counseling to address anger
management and substance abuse issues.
It permitted him monitored visitation with Javon, with the Department
having discretion to liberalize.
Father and the Department appealed.
Father contends substantial
evidence did not support the juvenile court’s jurisdiction and disposition
orders, while the Department maintains substantial evidence did not support the
juvenile court’s modifications to the section 300 petition. We find no merit to either party’s
contentions.
I. Standard of Review.
We review the juvenile court’s jurisdiction
and disposition orders for
(In re J.K. (2009) 174
Cal.App.4th 1426, 1433; In re P.A. (2006)
144 Cal.App.4th 1339, 1344.) Under this
standard, we review the record to determine whether there is any reasonable,
credible, and solid evidence to support the juvenile court’s conclusions; we resolve
all conflicts in the evidence and make all reasonable inferences from the
evidence in support of the orders. (
1073, 1080.) “‘Issues of fact and
credibility are questions for the trial court.’
[Citations.] It is not an
appellate court’s function, in short, to redetermine the facts. [Citation.]â€
(In re Sheila B. (1993) 19
Cal.App.4th 187, 200.)
II. Father’s Appeal.
Evidence Supported the Jurisdiction Order.
The
juvenile court declared Javon a dependent of the court under section 300,
subdivisions (a) and (b).
438, 451; In re Dirk S. (1993) 14
Cal.App.4th 1037, 1045; In re Jonathan B.
(1992) 5 Cal.App.4th 873, 875.) Because
we conclude that jurisdiction was appropriate under section 300, subdivision
(b), we need not consider whether jurisdiction was also supported under section
300, subdivision (a). (
A
child may be declared a dependent under section 300, subdivision (b) if the
“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 guardian to adequately supervise or protect the child.†A petition filed under section 300,
subdivision (b) must contain the following elements: “‘(1) neglectful conduct by the parent in one
of the specified forms [. . . such as a parent’s failure to
adequately supervise or protect a minor]; (2) causation; and (3) “serious
physical harm or illness†to the minor, or a “substantial risk†of such harm or
illness.’†(In re Heather A. (1996) 52 Cal.App.4th 183, 194.)
“[D]omestic
violence in the same household
where children are living is neglectâ€
that constitutes a failure to protect the children “from the substantial risk
of encountering the violence and suffering serious physical harm or illness
from it.†(In re Heather A., supra, 52 Cal.App.4th at p. 194.) Citing both In re Heather A. and a series of studies on the detrimental effects
of domestic violence on children, the court in In re R.C. (2012) 210 Cal.App.4th 930, 941, recently explained that
“[e]xposure to domestic violence may serve as the basis of a jurisdictional
finding under section 300, subdivision (b).â€
Such “‘[c]hildren can be “put in a position of physical danger from
[spousal] violence†because, “for example, they could wander into the room where it was occurring and be accidentally
hit by a thrown object, by a fist, arm, foot, or leg. . . .†[Citation.]’â€
(Id. at pp. 941–942.) But “‘“even if they are not physically harmed,
children suffer enormously from simply witnessing the violence between their
parents. . . .â€â€™â€ (
559, 562 [observing that domestic violence is detrimental to children];
1464, 1470, fn. 5 [same].) The
domestic violence in the form of the father’s breaking the mother’s cell phone,
pushing her down and choking her, and verbally threatening her constituted
substantial evidence supporting a jurisdictional finding under section 300,
subdivision (b), even though the child witnessed only one incident and was not
physically harmed. (In re R.C., supra, at p. 943.)
Here, there was substantial evidence that
Javon remained at risk from Mother’s and Father’s domestic violence. Mother and Father both admitted that the
police had been called on multiple occasions as a result of altercations
between the two of them. They
both admitted to having an altercation in their car which resulted in the
windows being shattered. They both
acknowledged that Mother would throw things when the two fought. S.N. stated that Mother and Father argued with
each other every day, yelling in each other’s faces. On multiple occasions, he heard Father tell
Mother that he would “hit her.†He added
that Javon was frequently nearby when the two would argue. Most recently, S.N. observed Mother’s and
Father’s argument result on Mother intentionally crashing her car into
Father’s. As in In
re John M. (2013) 217 Cal.App.4th 410, 419, “[t]he parents’ history of
domestic violence evidences an ongoing pattern that, while not yet causing harm
to J[avon], presented a very real risk to J[avon’s] physical and emotional
health. Both parents hit each other;
verbal altercations were frequent; and father engaged in reckless driving with
mother in the car.†(See also
134 [“Although T.V. was not present at the time, the domestic violence between
the parents was ongoing and likely to continue, thus placing T.V. at
substantial risk of physical harmâ€].)
Father argues the evidence was insufficient to support
jurisdiction because Mother was not credible.
He contends the juvenile court therefore should have disregarded her
accounts of Father’s violent behavior. He
maintains that evidence of the October 2012 automobile incident, which was not
based on Mother’s testimony, failed to show how Javon remained at a current risk
from Father.
The fundamental premise of Father’s contention requires that
we make a credibility determination—a task reserved for the juvenile court. We may not reweigh the evidence, independently evaluate the
conflicts in the evidence. (See
212, 228.) In any event, even if we were
to disregard Mother’s statements, S.N.’s observations of Mother and Father
constantly yelling at each other, throwing things at one another and arguing
near Javon would be sufficient to constitute substantial evidence of an ongoing
risk to Javon. (See In re Heather A., supra, 52 Cal.App.4th at p. 192 [domestic
violence affects children even if they are not the ones being physically abused
“because they see and hear the violence and the screamingâ€].)
Nor are we persuaded that the evidence was insufficient to
show Javon was at a present risk from domestic violence. Though Mother and Father stopped living
together sometime in October 2012, Father testified that he and Mother had
broken up previously, but resumed their relationship even after she threw a
game at him and a barstool at a television he gave her, and after she had
called the police to obtain a restraining order against him and to report
vandalism he contended he did not commit. On the basis of this evidence, the juvenile
court could reasonably infer that the automobile incident was not the
conclusion of Mother’s and Father’s relationship. (See
461 [“‘past conduct may be probative of current conditions’ if there is reason
to believe that the conduct will continueâ€].) Moreover, the
juvenile court received evidence from both Mother and Father that violent
incidents would tend to occur after Father had been drinking. Yet, Father denied drinking alcohol to the
point of intoxication, even though he had been arrested and placed on probation
for driving under the
influence. Father’s failure to
acknowledge at least one impetus for his altercations with Mother was also
evidence of a current risk of harm.
Juvenile dependency
proceedings are intended to protect children who are currently being abused or
neglected, “and to ensure the safety, protection, and physical and emotional
well-being of children who are at risk of that harm.†(§
300.2.) “The court need not
jurisdiction and take the steps necessary to protect the child. [Citations.]â€
(In re R.V. (2012) 208
Cal.App.4th 837, 843.) “‘The purpose of
dependency proceedings is to prevent risk, not ignore
it.’ [Citation.]†(Jonathan
L. v. Superior Court (2008) 165 Cal.App.4th 1074, 1104.) Substantial evidence that Javon remained at
risk supported the juvenile court’s assumption of jurisdiction over him.
B. Substantial Evidence Supported the
Disposition Order.
The juvenile court removed Javon from
Father’s custody. While the
juvenile court made removal findings as to Mother during the hearing, the court
proceeded immediately to ordering reunification services as to Father. The minute order for the disposition hearing,
however, specified that the juvenile court made removal findings for Father. “‘[W]hether
the recitals in the clerk’s minutes should prevail as
against contrary statements in the reporter’s transcript
case.’ [Citation.]†(In re
Kyle E. (2010) 185 Cal.App.4th 1130, 1136.)
And when possible, the clerk’s minutes and the reporter’s transcript
should be harmonized. (
1013, 1018.) Where, as here, “the clerk’s
transcript simply clarifies a point that the reporter’s transcript left
ambiguous,†“[w]e conclude that the minute order correctly recites the juvenile
court’s ruling.†(Ibid.)
Though he did not challenge the
disposition order below, on appeal Father contends the evidence was
insufficient to support removal.
name="_ftnref6" title="">[6] Section 361
authorizes the removal of a child from a parent’s physical custody if the
juvenile court finds that a substantial danger exists to the child’s physical
or emotional well-being: “A dependent
child may not be taken from the physical custody of his or her parents . . . unless
the juvenile court finds clear and convincing evidence . . .
[¶] [t]here is or would be a substantial
danger to the physical health, safety, protection, or physical or emotional
well-being of the minor if the minor were returned home, and there are no reasonable
means by which the minor’s physical health can be protected without removing
the minor from the minor’s parent’s . . . custody.†(§ 361, subd. (c)(1).)
Substantial
removing Javon from Father’s custody. A removal order is proper if it is based on evidence of
parental inability to provide proper care for the child and evidence of a
potential detriment to the child if he or she remains with the parent. (In re
Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on another ground
in Renee J. v. Superior Court (2001)
26 Cal.4th 735, 748, fn. 6.) A parent’s
level of denial is an appropriate factor to consider when determining the risk
to the child if placed with that parent.
(In re Esmeralda B. (1992) 11
Cal.App.4th 1036, 1044 [noting “denial is a factor often relevant to determining whether
persons are likely to modify their behavior in the future without court
supervisionâ€].) The parent need not be dangerous and the child
need not actually have been harmed before removal is appropriate; the focus of
the statute is on averting harm to the child. (In re Diamond H., supra, at p. 1136.)
Here, at the time of the disposition
hearing, Father took no responsibility for exposing Javon to domestic
violence. He continued
to deny he had been involved in domestic violence (except as a victim) and
denied that his alcohol consumption contributed in any way to the incidents of
violence. S.N., on the other hand,
explained how “‘[e]verything was ok before [Father] came along,’†and
described Mother’s and Father’s constant arguing, sometimes in the presence of
Javon. Young Javon knew that Mother and
Father would “‘fight.’†There
was substantial evidence to support the juvenile court’s finding that until Father
received domestic violence counseling and addressed his anger management and
substance abuse issues, there were no reasonable alternatives to removal to
protect Javon.
III. The Department’s Appeal.
The
Department contends substantial evidence did not support the juvenile court’s
amending the section 300 petition by striking any reference to specific
incidents of violence, including Mother’s hitting Father’s car on October 12,
2012; Father’s punching Mother’s face and choking her; Father’s grabbing
Mother’s arm, pushing her and pinning her down; Father’s raping Mother; and Father’s
throwing coins into Mother’s face causing a swollen eye.
The
juvenile court explained the reasons for the modifications, stating that it
found much of Father’s testimony and some of Mother’s lacked credibility, and
for that reason it did not have a “clear determination of exactly what went on . . . .†It did find, however, that there was
sufficient evidence of “screaming and yelling and swearing and throwing of things
that went on in the home†supporting the allegations that Mother’s and Father’s
history of domestic violence and violent altercations placed S.N. and Javon at
risk. It also expressly observed that
one of the reasons it lacked credible evidence of specific incidents was the
Department’s inadequate investigation.
After criticizing the Department’s failure to obtain Father’s arrest
record, get Sheriff’s Department records concerning domestic violence calls and
interview witnesses about Mother’s statements and condition, the juvenile court
admonished the social worker that “it’s not acceptable to present this type of
case.â€
A
juvenile court may amend a dependency
petition to conform to the evidence received at the jurisdiction hearing in
order to remedy immaterial variances between the petition and proof. (§ 348; Code Civ. Proc., § 470.) “No variance between the allegation in a
pleading and the proof is to be deemed material, unless it has actually misled
the adverse party to his prejudice in maintaining his action or defense upon
the merits.†(Code Civ. Proc., § 469.)
“[T]he
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 the 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. [Citation.]â€
(In re Jessica C. (2001) 93
Cal.App.4th 1027, 1041–1042, fn. omitted.)
Here, the
Department has failed to demonstrate how it was misled to its prejudice by the
amendments. The juvenile court modified
the petition to conform to the evidence and struck allegations it found were
unsupported due to Mother’s and Father’s lack of credibility as well as the
Department’s poor investigation.
Substantial evidence supported the juvenile court’s amending the
petition to conform to proof.
DISPOSITION
The
juvenile court’s jurisdiction and disposition orders are affirmed.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
_____________________, J.
FERNS
We
concur:
____________________________,
P. J.
BOREN
____________________________,
J.
CHAVEZ
references are to the Welfare and Institutions Code.
probation, the record contains no evidence of a conviction for driving under
the influence.
