In re Katherine B.
Filed 1/30/14 In re Katherine B. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re KATHERINE B. et al., Persons Coming
Under the Juvenile Court Law.
B245573
(Los Angeles County
Super. Ct. No. CK42727)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff
and Respondent,
v.
PERCY B. et al.,
Defendants
and Appellants.
APPEALS
from orders of the Superior Court of Los
Angeles County, Amy Pellman, Judge.
Affirmed in part and reversed in part as to Percy B. (Father), reversed
as to D.F. (Mother) and remanded for further proceedings.
Edi M.O.
Faal for Defendant and Appellant Percy B. (Father).
John E.
Carlson and Nancy Nager for Defendant and Appellant D.F. (Mother).
John F.
Krattli, County Counsel, James M.
Owens, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel,
for Plaintiff and Respondent.
_______________________________
INTRODUCTION
In this appeal, a mother and father
challenge the dependency court’s
jurisdictional orders as to one of their children. The dependency court found the father had
sexually abused his elder daughter (now 19) on numerous occasions from the age
of nine forward. In addition, when she
was 12 years old, a 47-year-old family friend had sexually molested her for a
period of about 18 months. Thereafter,
the court found, she demonstrated severe
conduct including highly sexualized behavior, lying, defiance and further
claims of sexual abuse, but her parents failed to provide her with appropriate
which placed her at substantial risk of further harm. The mother claims the evidence does not
support the dependency court’s order as to her and she was deprived of due
process. The father’s challenge is
limited to meritless attacks on his daughter’s credibility. We affirm as to the sexual abuse count
involving the father. However, we agree
with the mother that the dependency court’s creation of a new count as to both
parents for failure to provide appropriate medical care and treatment following
the discovery of another perpetrator’s sexual abuse of their daughter violated
both parents) and remand for further proceedings.
FACTUAL
AND PROCEDURAL SUMMARY
In August 2011, the Los Angeles
County Department of Children and Family Services (the Department) was notified
Katherine B.-F. (16 years old at the time) was the victim of sexual abuse by
her adoptive father Percy B., and she and her two siblings, Celine B.-F. (a
12-year-old girl) and D. B.-F. (a 15-year-old boy), were victims of general
neglect by both of their adoptive parents, Percy B. and D. F.
report, in the past, Katherine had hinted to her writing program mentor there
was trouble at home but then had recently disclosed that her adoptive father
had been sexually abusing her for years, and she was in grave fear about the
trouble her disclosure would cause, especially with respect to her basketball
scholarship. Her adoptive father was
reportedly “very involved in talented youth basketball scholarships.â€
The Department noted that
allegations of general neglect and physical abuse had been filed in May 2000
and were found to be substantiated. At
that time, the family had received court-ordered family
family maintenance services to include substance abuse treatment, parenting classes
and counseling. As of March 2002, both
parents had completed and complied with all court orders, and D. F. (a dentist)
was acquitted of child endangerment charges in a criminal hearing. The children had not participated in
counseling as their parents “don’t[ ] believe in counselors and don’t want them
to talk about the family.â€
Regarding her recent disclosure of
sexual abuse, Katherine said she was afraid to tell her mother because there
had been an incident several years before when she was “dating†a 47-year-old
man associated with her basketball program.
The matter went to court and Katherine’s mother was very angry with
her. Katherine feared her mother would
blame her for these events as well and Katherine was “very afraid†to let her
know. She felt she could not go
home.
Katherine told the social worker
that Percy B. had been coming into her room routinely each night after she had
gone to sleep from the time she was nine years old. She said he would caress, touch and feel her
body, including her legs, arms and thighs.
Most recently, a few nights before the interview, Katherine said Percy
B. woke her by placing his hand on the back of her thigh and digitally
penetrating her three times. She said he
would also expose his penis to her on various occasions and would put it in her
face. Katherine said she would roll over
or try to move him away. She said her
sister was asleep in the same bedroom but never woke up. Her mother and the rest of the family would
be asleep when Percy B. came into Katherine’s room so no one else witnessed
what Percy B. was doing. Sometimes, she
said, she would go to the bathroom, lock the door and try to sleep there to
avoid the abuse because it had been happening for years. She said her relationship with Percy B. was
“normal during the day and different at night.â€
In addition to her past 18-month
“involvement†with the 47-year-old father of another student athlete, Katherine
told the social worker she had alleged a male classmate at her school had
sexually assaulted her. Initially,
Katherine said, she had reported the act was “mutual†(just as she described
the sexual abuse by the 47-year-old) but said she reported the classmate
because he had wanted to have sex with her and she had refused but then he had
told other students at school that they did have sex and she got upset with him
telling people they had had sex. She
said she wrote a letter to him and his family and the principal to apologize
for the sexual assault allegations. She
said she was sexually active and had had several partners.
When Katherine’s mother D. F. was
interviewed, she told the social worker she did not believe her daughter
because of her history of alleging sexual assault. D. F. said she had adopted Katherine at the
age of four and said Katherine had been drug-exposed as an infant. She said Katherine had been displaying
serious behavioral problems since the beginning of her adolescence and
typically isolated herself from D. F. and the rest of the family and “like[d]â€
to lock herself in the bathroom. She
said Katherine participated in therapy for over a year but stopped when the
family could no longer afford the expense.
D. F. said she was a dentist, and she was sued in 2000 for allegedly
over-sedating patients. She said she was
acquitted but had considerable attorney fees to pay and had to work long hours
during the week.
Percy B. could not be located and
had reportedly left the family home.
D. F. signed an affidavit indicating
she released custody of her daughter pending resolution of the allegations
against Percy B., and Katherine was taken into protective custody.
In investigating the family’s prior
involvement with the Department, the social worker reported a May 2000 referral
following D. F.’s arrest when she was charged with 14 counts of willful child
cruelty for allegedly over-anesthetizing 50 children in her dental
practice. As a result, one child had
suffered brain damage and another was described as “near death.†At that time, D. F. was Celine B.-F.’s foster
mother, and it was alleged D. F. had physically abused her as well as two other
children with the same last name as D. F.
The disposition of these referrals was “Inconclusive.†Later that month, however, a referral
involving the three older children (not including Celine B.-F.) for neglect and
physical abuse was found to be substantiated against both D. F. and Percy B. In April 2008, another referral was generated
relating to Katherine’s sexual abuse by Alan Rudisill; there was “no
disposition†as to that referral.
In August 2011, the Department filed
a Welfare and Institutions Code section 300 petition on Katherine’s behalf
against Percy B. and D. F., alleging that Katherine had suffered or was at
substantial risk of suffering serious physical harm or illness within the
meaning of subdivision (b) of Welfare and Institutions Code section 300 (all
further undesignated statutory references are to the Welfare and Institutions
Code) and had been sexually abused or was at substantial risk of being sexually
abused within the meaning of subdivision (d) of section 300. At the detention hearing, the dependency
court found Katherine to be a minor described by subdivisions (b) and (d) of
section 300 and found a prima facie case for detaining her. The following day, Katherine was released to
her mother’s custody, on the condition that D. F. and Katherine would reside
with Katherine’s maternal aunt. Percy B.
was granted monitored visitation with a monitor other than D. F.
As of September, the Department
noted several concerns. Both Katherine
and Celine B.-F. had forensic
examinations, and the exam results for Celine “revealed assault related
findings.†Katherine had been forced to
attend Percy B.’s birthday party, she had been told she could no longer attend
the Write Girl mentoring program and Katherine reported she was being pressured
to retract her statements “so the family can go back to normal.†D. F. did not believe Katherine, D. F. said
she “fully supports [Percy B.] in all way[s] necessary†and it appeared to the
social worker that Katherine was being isolated to force her to recant. When the social worker attempted to interview
Celine regarding sexual abuse, her affect changed from “animated†to “flat†and
she became withdrawn. She denied any sexual
abuse. She dropped her head, lowered her
voice and said, “no, my sister is lying my dad would never do anything like
that.â€
When the social worker showed D. F.
the results of Celine’s examination, D. F. said it was “impossible†and said
she would get a second opinion. She
said, “I don’t believe that those were the results. I believe that the Police department is doing
something funny.†Based on these events
and the fact Celine and D. were living at home with Percy B., the Department
obtained a removal order as to the younger two children in addition to
Katherine. In September, the Department
filed another petition on behalf of Celine and D. based on the same allegations
plus an allegation under subdivision (j) of section 300. Thereafter, Celine and D. B.-F. were released
to D. F.’s custody on condition that Percy B. move out of the family home.
When the Department attempted to
interview Percy B. and D. F., both indicated they would contact the social
worker after speaking with their respective attorneys, but neither did. Further, D. F. would not allow the social
worker to speak with Celine; D. B.-F. “just want[ed] them to find [Percy B.]
innocent so everyone can come back home.â€
Later, in a Last Minute Information
for the Court report filed in November, the Department advised the dependency
court that Percy B. continued to refuse to answer questions about the
allegations in the petition but told the social worker Katherine had previously
made false allegations against a boy at school and the police considered filing
charges against her for being untruthful but said the case was dropped when she
wrote letters of apology to everyone involved.
Percy B. said Katherine was “involved in a lot of sexual activities
including boys her age and the older man she was involved with.â€
Ultimately, the dependency court
heard the matter over several days of testimony. In its amended statement of decision,
following a jurisdictional hearing that lasted over 15 days, with testimony
from 11 witnesses, the dependency court found as follows:
“Katherine testified multiple times
over the course of the trial, on April 10 and 11 and June 6, 2012. At trial, she was 17 years old. Throughout the proceedings, Katherine has
been consistent in her testimony and in her reporting to the Department and to
other collaterals such as Dr. Kaser-Boyd, that [Percy B.] had been sexually
abusing her since she was nine years old.
She stated that he would come into her room at night after everyone was
asleep and he would touch her. At
various times he had touched her vagina, buttocks, breasts, legs, inner thighs
and private areas around her vagina and buttocks. There were also times when he had put one or
two fingers inside her vagina, kissed her chest and outer thighs and exposed
his penis to her. She said the touching
started when she was nine years old and continued until she was sixteen years
old. Although Katherine shared a bedroom
and even a bunk bed during much of her childhood with younger sibling C[.], she
testified that she never saw C[.] wake up or stir during the times [Percy B.]
was in the room. Katherine also
testified her dog slept in the room, but it did not bark when [Percy B.] would
come into her room at night.
“Katherine described in great
detail, even drawing a map, an incident in a hotel room in San Francisco
where [Percy B.] and older sibling J[.] were present. On that occasion, she told the Court that [Percy
B.] had molested her and then described how [he] had made her change her pajama
bottoms because they were wet from female bodily fluids after he molested
her. She remembered the kind of pajamas
she was wearing, what [Percy B.] said to her during and after the molestation,
and other specific details. Although she
said C[.] was on the trip (staying in a different hotel with her teammates),
C[.] denied ever going on the trip. J[.]
testified that he did not remember that San Francisco
trip and did not remember going to a hotel with just his sister and
father. However, the Court finds that
J[.]’s testimony lacked credibility.
J[.]’s demeanor while testifying indicated he was either extremely
nervous or just simply did not remember basic information about his
childhood. [D. F.] also denied the trip
ever took place and testified that the family never went to any out-of-town
hotels without her. On this subject,
however, the Court gave more credibility to Katherine’s testimony because of
her ability to recall specific details and her demeanor while testifying about
this event.
“Katherine’s cousin, V[.] F[.],
testified that she had stayed in the B[.]-F[.] home during the years of the
alleged abuse and often slept in the same room as Katherine (and C[.]). She testified that she never heard, saw or
woke up to find anything unusual happening in the bedroom. V[.] F[.] testified that, unlike C[.], (who
is a heavy sleeper) she is a light sleeper.
While the Court found her to be a credible witness, her testimony did
not outweigh Katherine’s testimony for the same reasons stated above. In addition, Katherine’s testimony contained
elements that did not appear made up or imagined and remained consistent.
“Katherine testified that she never
told anyone about the abuse because she thought that her entire life would come
‘crashing down’ and that she would not be able to go to the same school, play
basketball, and have a normal life. She
stated that she thought she could ‘deal with it’ until she left for college.
“When questioned if she ever told
her mother about the abuse, Katherine stated that she never directly told her,
but she did recall a conversation she had with mother one morning when mother
had been angry because Katherine was late getting up for school. In response, Katherine muttered under her
breath, ‘I wouldn’t have been late if you could keep your husband out of my
room every night.’ When mother responded
by saying, ‘What?’ Katherine just told
her, ‘Never mind.’
“Katherine’s mother further
testified that Katherine never told her about the abuse. The court found her testimony credible on
that issue.
“Katherine testified that she never
told her because she did not think her mother would believe her because her
mother had not been supportive of her after the ‘Rudisill’ incident. Katherine testified that she had been
involved with a family friend, Alan Rudisill, who was forty-seven years
old . . . . This ‘relationship’ began when
Katherine [was only 12 years old and] continued for approximately eighteen
months until it was discovered.
Katherine felt [D. F.] blamed her for what happened with Rudisill and
that [D. F.] continued to treat her differently because of it. Katherine testified that her relationship
with [D. F.] had already been strained, but after the Rudisill incident, it was
never the same. Katherine further
acknowledged in interviews with the social worker that she did continue to display sexualized behaviors and she felt that [D.
F.] thought that Katherine was a ‘whore.’
“Although Alan Rudisill was
sentenced to a significant term in prison, the testimony illustrated that
Katherine never received any meaningful sexual abuse or trauma-based
counseling.
“When questioned about whether or
not Katherine ever received any therapy for the sexual abuse she suffered as a
result of the Rudisill incident, [D. F.] testified that she and [Percy B.] put
Katherine in counseling for a few months although she was confused as to
whether the counselor was a psychologist or a psychiatrist.
“The [social worker] reported that
[D. F.] told her that she and [Percy B.] might have stopped the therapy because
of their finances, but at trial [D. F.] testified that after two months of
therapy, the therapist recommended Katherine attend group-type meetings
instead. [D. F. and Percy B.] then took Katherine to a faith-based program
called, ‘Faith-dome,’ for children with behavioral problems.
“After only a few sessions, [Percy
B.] found out that Katherine was texting a boy and leaving during the
sessions. In response, [D. F. and Percy B.]
terminated Katherine from the program and did not re-enroll her in any form of
counseling. [D. F.] testified that she
and [Percy B.] thought that if Katherine needed to speak with someone she could
see a school counselor at [her private school], where she was starting the
school year.
“[D. F.] portrayed Katherine as an
out of control teenager who constantly lied about her comings and goings and
sexual encounters. In response to these
issues, [D. F. and Percy B.] placed severe restrictions on Katherine and
monitored her every move. Katherine was
not allowed to leave the house unless a family member accompanied her. [D. F.] described that Katherine had been
placed on this ‘lock down’ for the majority of the summer before the sexual
abuse allegations were uncovered. [D. F.
and Percy B.] contend that these harsh punishments were the reason and
motivation behind Katherine making these false allegations of sexual abuse
against [Percy B.]. Throughout the case,
Katherine never mentioned anger or resentment for these alleged punishments,
neither in any of the interviews nor at trial.
“Dr. Kaser-Boyd, a clinical and
board-certified forensic psychologist specializing in child abuse and in
malingering/faking, was called to testify about her evaluation of Katherine’s
statements regarding [Percy B.]’s abuse and whether or not they were credible.
“She noted that Katherine’s
description of the abuse was consistent with what was often seen in situations
of sexual abuse, i.e., the abuse occurring in the middle of the night, when she
was already in bed, and everyone else is sleeping; and the coping mechanisms
that children often employ during and after the abuse such as pretending to be
asleep as well as the denial and minimization of the abuse to try and pretend
like it did not happen.
“Dr. Kaser-Boyd testified that
severe nightmares and certain content of the nightmares are often symptoms of
abuse. [D. F.] testified that Katherine
often had nightmares and Katherine’s foster mother recently reported the
same. The doctor stated Katherine’s
recurring nightmares of being immobilized are typically seen in people who have
been victimized and have felt powerless and immobile. Dr. Kaser-Boyd could not pinpoint ‘who’
molested Katherine, but identified her as being a likely victim of abuse. She also noted that Katherine’s report of her
‘relationship’ with Alan Rudisill was very unusual and it raised the high
suspicion that she had already been subjected to some sexualization before the
relationship began when she was twelve years old.
“Dr. Kaser-Boyd conducted
psychological testing on Katherine to determine if she was likely exaggerating
or lying about the incidents she was reporting.
In her testimony, Dr. Kaser-Boyd described Katherine’s elevated scales
of childhood abuse as well as peer insecurity and sexual discomfort, which are
symptoms often seen in children who have been molested. She explained that Katherine was not elevated
on scales reflecting unusual anger or acting out—behaviors that are seen in
delinquents—symptoms that would be important in determining whether Katherine
would destroy a family to have her own way.
The doctor specified that these findings were consistent with
had described—by Alan Rudisill and [Percy B.].
“In her expert opinion, Dr.
Kaser-Boy[]d testified that the results from the evaluation supported: the history of abuse Katherine had described,
that Katherine was not exaggerating her report of [Percy B.]’s molestation, and
that she displayed symptoms that were consistent with her accounts of
abuse.
“Katherine described another earlier
incident of being sexually assaulted by a boy after a basketball game when she
was about eleven years old. [D. F.]
testified and [Percy B.] put on numerous witnesses to testify about Katherine’s
behavior problems, which included lying, sexualized behavior and some drug
use. There was also a significant
incident in high school where Katherine accused a boy of sexually assaulting
her and was apparently later threat[en]ed by the district attorney’s office
with charges for making a false accusation.
She was told that the district attorney would not take action[] against
her if she promised to sign letters of apology to those involved. There were points during her testimony where
Katherine seemed to not understand basic questions. She appeared hesitant and not confident
compared to her earlier testimony, which was clear and coherent.
“Regarding her disclosure to her
writing coach, Melissa Wong, Katherine testified that she start[ed] gradually
disclosing some things to Ms. Wong during their writing sessions. Katherine stated:
[‘]I began telling her things, like
I couldn’t remember a time when someone wasn’t hurting me. She would ask me questions and I guess I
would answer them in a way that would cause her to believe that something was
going on at home, but I would never tell her straight out what was going
on. She would always ask[] me why I
wouldn’t answer these questions and I would tell her I am scared because I
don’t—like I said, I don’t want my life to fall apart. I don’t want to be kicked out of my
home. . . . I never specified that it was my dad, but
I specified that it wasn’t the other people in the house.[’]
“Katherine also testified that [Percy
B.] would occasionally give her alcoholic drinks at night and she described the
type of drinks. She said that she did
not feel drunk but sometimes she felt funny.
She stated that it did not happen regularly but more in the summer. Her sister, C[.], denied that [D. F. and Percy
B.] had any alcohol in the house. [D.
F.] testified that [she and Percy B.] sometimes drank wine at
home. . . .
“The evidence preponderates that [Percy
B.] is the perpetrator of sexual abuse as defined in section 300 subdivision
(d) against his daughter, Katherine [B.-F.].
Although Katherine also has a history of sexual abuse by an adult family
friend, and other acting out behaviors, which have included false allegations
of sexual abuse and lying, these behaviors and/or incidences do not negate
Katherine’s consistent, detailed and reliable testimony. Once Katherine started telling her story, she
never wavered. She had no obvious reason
to lie or make up the abuse. While [D.
F. and Percy B.] have posited the theory that Katherine was angry about the
restrictions they had placed on her at home, there was insufficient evidence at
trial for this Court to make any reasonable findings in support of this
theory. In fact, as her counsel points
out, Katherine’s ‘acting out behaviors’ have calmed down significantly since she
has left the home, not the opposite. She
has done quite well in the foster home and recently was awarded honor rol[l] at
her already prestigious private school . . . .
“As to whether or not [Percy B.]
gave Katherine alcohol, the Department did not meet its burden by a
preponderance of the evidence. Even if
the Court is to believe that [Percy B.] gave Katherine alcohol while she was a
minor, there was insufficient testimony or evidence from the Department to
support a finding that the alcohol, in and of itself, posed a substantial risk
to the child or was somehow connected to the sexual abuse.
“Thus, as to the petition filed on
August 23, 2011, the Court dismisses B-2 and finds true as amended B-1 and D-1
as follows:
“The child, Katherine B[.]-F[.]’s
father, P[.] B[.], sexually abused the child on numerous occasions since the
child was nine years old. On prior
occasions, [Percy B.] fondled and digitally penetrated the child’s vagina. [Percy B.] removed the child’s clothes prior
to fondling the child’s vagina and rubbed lotion on the child’s vagina. On prior occasions, [Percy B.] kissed and
fondled the child’s breasts. The sexual
abuse by [Percy B.] endangers the child’s physical health and safety and places
the child at risk of physical harm, damage, and sexual abuse.
“In regard to the Department’s
allegation that [D. F.] failed to protect, there was insufficient evidence to
prove [D. F.] knew or should have known that Katherine was being molested.
“However, the Court adds a b-3
count, consistent with Welfare and Institutions Code section 348, finding the
following:
“300 b-3 as follows:
“At or about age twelve, a family
friend who was about age forty-seven, sexually molested the child, Katherine
B[.]-F[.], over the span of approximately eighteen months. Since that time Katherine has exhibited
severe emotional damage including, but not limited to, numerous claims of
sexual abuse, lying, defiance, and highly sexualized behavior. Her parents, D[.] F[.] and P[.] B[.] have
failed to provide her with the medical [sic] appropriate care and psychological
treatment placing her at risk of substantial future harm and
damage. . . .â€
The court expressly acknowledged it
had “created†a new count.
On October 10, the dependency court
declared the children dependents, with D. and Celine ordered placed with D. F.
under the Department’s supervision, and Katherine removed from her parents’
custody. Both parents were to be
provided with reunification and family maintenance services.
Percy B. and D. F. appeal the
dependency court’s orders relating to Katherine only.
Percy B. has not included a single
citation to the record in his “summary of relevant facts†in which he instead
argues that Katherine lies, her testimony is “simply unbelievable and incredibleâ€
and says there was no “credible†evidence of sexual abuse. He says he “is a highly educated certified
[f]inancial [p]lanner who did his undergraduate and graduate studies at UCLA
[so i]t is inconceivable†he would have acted as Katherine described in her
testimony; “[o]nly a fool will expose his crime in that manner.†The dependency court’s orders are presumed
correct, and it is the appellant’s burden to demonstrate error by citing
evidence supported by legal authority; if an appellant fails to do so, he may
be deemed to have abandoned his appeal.
(In re Sade C. (1996) 13
Cal.4th 952, 994; Cresse S. v. Superior
Court (1996) 50 Cal.App.4th 947, 955 [dismissal is appropriate under such
circumstances].)
Not only has Percy B. failed to
provide citations to the record supported by citations to relevant legal
authority, but he has completely ignored the evidence supporting the dependency
court’s conclusions as well as the applicable substantial evidence standard of
review. (In re James C. (2002) 104 Cal.App.4th 470, 482; and see generally
585 [“unless it describes facts or events that are physically impossible or
inherently improbable, the testimony of a single witness is sufficient to
support a convictionâ€].) The dependency
court found Katherine credible (see In re
Ana C. (2012) 204 Cal.App.4th 1317, 1329 [“impeachment is not
impossibilityâ€]), and the social workers’ and expert witnesses’ testimony
supported the dependency court’s findings as well. (In re
Tania S. (1992) 5 Cal.App.4th 728, 733-734; In re Luke M. (2003) 107 Cal.App.4th 1412, 1427 [we defer to the
trial court’s factual assessments; we “review a cold record and, unlike a trial
court, have no opportunity to observe the appearance and demeanor of witnessesâ€].) A single ground suffices to support the
dependency court’s exercise of jurisdiction.
(In re Alexis E. (2009) 171
Cal.App.4th 438, 451; Randi R. v.
Superior Court (1998) 64 Cal.App.4th 67, 72.)
It appears Percy B. purports to
challenge not only the dependency court’s determination he sexually abused
Katherine, supporting jurisdiction under subdivision (d) of section 300 (as the
court did find, and we affirm), but also attacks the allegation he had given
her alcohol (a separate count the court did not sustain). Yet, Percy B. ignores the additional count on
which the dependency court based its jurisdiction as to Katherine—the
determination that both parents had failed to provide her with appropriate
medical care and psychological treatment which placed her at substantial risk
of future harm. (§ 300, subd. (b).) Notwithstanding Percy B.’s failure to address
this count, we find (as D. F. argues and as we explain in the context of her
appeal) the dependency court’s creation of this new count and exercise of
jurisdiction on this basis violates due process, and reversal is required as to
this count only for both parents.
D. F. says the dependency court
committed reversible error when it created and sustained its own count that when
Katherine was molested at the age of 12, D. F. “failed to provide her with
medical [sic] appropriate care and psychological treatment, placing her at risk
of substantial future harm and damage.â€
She says the variance between the allegations alleged in the petition
and the count created and sustained by the dependency court was so substantial
that it violates due process. In this
respect, we must agree with D. F.
As D. F. notes, the “allowance of
amendments to conform to 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.â€
(Trafton v. Youngblood (1968)
69 Cal.2d 17, 31.) “‘The discretion of a
trial judge is not a whimsical, uncontrolled power, but a legal discretion,
which is subject to the limitations of legal principles governing the subject
of its action, and to reversal on appeal where no reasonable basis for the
action is shown.’†(Miyamoto v. Department of Motor Vehicles (2009) 176 Cal.App.4th 1210, 1218, citations
and further internal quotation marks omitted.)
Section 348 entitled “Variance and
Amendment of Pleadings†provides the dependency court with authority to amend a
dependency petition to conform to proof to the same extent and with the same
effect as in civil actions.
name="_ftnref3" title="">[3] Code of Civil Procedure section 469 states as
follows: “No variance between the allegation in the 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 on the merits.â€
In In re Andrew L. (2011) 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.) In In re David H. (2008) 165 Cal.App.4th 1626, the court held a
petition under section 300, subdivision (a), that alleged the child had
suffered serious physical harm inflicted nonaccidentally by his mother 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.
title="">[4] (
In In re Jessica C. (2001) 93 Cal.App.4th 1027, 1041-1042, the court
held it was error for the dependency court to refuse to permit an amendment
that modified the description of the sexual abuse alleged by substituting the
word “touching†for “penetrating†the child’s vagina. (Id.
at p. 1042.) 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.
In this case, however, the proposed
amendment effected a fundamental change in the harm to the child or the
parental misconduct alleged. (Cf.
481, 197 Cal. Rptr. 20 [“the juvenile court has discretion to permit amendment
of a juvenile court wardship petition to correct or make more specific the
factual allegations supportive of the offense charged when the very nature of
the charge remains unchangedâ€].) Indeed,
in In re Jessica C., supra, 93
Cal.App.4th 1027, the court condemned as a due process violation the type of
amendment to conform to proof not unlike the amendment at issue here: “[S]uppose a petition only alleges, under
subdivision (d) of section 300, a variety of specific sexual acts perpetrated
by a parent, but the trial judge does not find these are true. The county then attempts to amend the petition
to allege serious emotional damage under subdivision (c) of section 300, based
on the idea that any child who would make such allegations, even if false, has
obviously been subject to emotional abuse. Such a tactic would be nothing more than a
cheap way to establish dependency without giving the parent adequate notice of
dependency jurisdiction under an emotional abuse theory.†(Id.
at p. 1042, fn. 14.)
In this case, rather than a “cheap
tactic,†we understand the dependency court’s action as a well-intentioned
effort to protect Katherine and provide services for her and her family. Nevertheless, in light of the court’s
intention to proceed in the manner it did, we must conclude that, at the very
least, the evidentiary portion of the hearing should have been reopened to
allow (after an appropriate continuance) D. F. to present evidence to refute
the amended allegations. Significantly,
in the Jessica C. and
motion to amend the petition, which did not occur in this case. Moreover, unlike the insubstantial amendments
permitted in the Andrew L. and
us to reconcile the dependency court’s considerable and dramatic change in the
basis proffered for dependency jurisdiction with D. F.’s (and Percy B.’s) fundamental
right to notice and a fair opportunity to respond to the actual grounds upon
which the petition was sustained. (See
742, 751 [“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 allegationsâ€]; In re Justice P. (2004) 123 Cal.App.4th 181 [“[d]ue process
requires that a parent is entitled to notice that is reasonably calculated to
apprise him or her of the dependency proceedings and afford him or her an
opportunity to objectâ€]; In re C.P. (1985)
165 Cal.App.3d 270, 271 [due process requires that parents be afforded notice
and an opportunity to be heard at a jurisdiction hearing]; see generally
court safeguarded parent’s rights to procedural and substantive due process by
providing him notice and an opportunity to be heard, including the right to
present evidence and to confront witnesses].)
Although Katherine’s prior sexual
abuse was discussed throughout these proceedings, the petition as originally
alleged identified D. F.’s failure to protect Katherine in the context of Percy
B.’s sexual abuse. Pursuant to the
dependency court’s findings and order, however, the court expressly found that
D. F. did not have reason to know of Percy B.’s sexual abuse of Katherine, but
at the same time found jurisdiction proper for D. F.’s failure to ensure that
Katherine received the appropriate medical care and psychological treatment at
the time she (D. F.) learned of Katherine’s sexual abuse by Alan Rudisill—years
before. Consequently, D. F. had no
notice evidence should be presented concerning the nature and severity of the
emotional damage Katherine was suffering as
a result of the abuse by Alan Rudisill, her own responsibility for the
onset of such damage and her responsibility for Katherine’s continued suffering
because she minimized and denied the seriousness of the emotional damage
Rudisill’s sexual abuse caused 12-year-old Katherine and refused to seek
appropriate care for her. (See generally
In re Brison C. (2000) 81 Cal.App.4th
1373, 1381-1382, [when a child is well-adjusted except for a deep fear or
dislike of one parent, the court lacks a basis for assuming jurisdiction under
§ 300, subd. (c), even when parents have subjected the child to a rancorous
family law dispute]; In re Alexander K.
(1993) 14 Cal.App.4th 549, 557 [“[T]he parental conduct branch of subdivision
(c) seeks to protect against abusive behavior that results in severe emotional
damage. We are not talking about
run-of-the-mill flaws in our parenting styles—we are talking about abusive,
neglectful and/or exploitive conduct toward a child which causes any of the
serious symptoms identified in the statute.â€].)
Not only was D. F. deprived of
notice of the allegations upon which jurisdiction was ultimately premised, but
the dependency court based jurisdiction on subdivision (b) of section 300, but
described emotional damage and the failure to provide psychological treatment.
300, subdivision (c), provides, in part, a child may be adjudged a dependent child
of the juvenile court if she “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 . . . .†Meanwhile, subdivision (b) “means what it
says. Before courts and agencies can
exert jurisdiction under section 300, subdivision (b), there must be evidence
indicating that the child is exposed to a substantial risk of
Rocco M. (1991) 1 Cal.App.4th 814, italics
added.) “Neither section 300,
subdivision (a) nor (b) provides for jurisdiction based on ‘emotional harm.’ Subdivisions (a) and (b) state that the court
may adjudge a child a dependent of the court if ‘[t]he child has suffered, or
there is a substantial risk that the child will suffer, serious
Daisy H. (2011) 192 Cal.App.4th 713, 717-718; original italics.)
On the record before us the
jurisdiction findings under section 300, subdivision (b), must be reversed, and
the disposition order removing Katherine from D. F.’s care and custody vacated.
(In
re David M. (2005) 134 Cal.App.4th 822, 833; In re Janet T. (2001) 93 Cal.App.4th 377, 391.) Given the procedural posture, the record and
the fact two younger siblings remain, we decline D. F.’s request that we dismiss
the dependency proceedings at this point. Our conclusion that the amendment to conform
to proof was improper for lack of adequate notice does not mean the Department
cannot try again or that it may not be in Katherine’s best interests for her to
be removed from D. F.’s custody (See In
re Janet T., supra, 93 Cal.App.4th at p. 392.) However, circumstances may have arisen during
the pendency of this appeal that could affect the dependency court’s evaluation
of any new petition filed by the Department. Accordingly, in any further proceedings on
remand the dependency court should give appropriate weight to Katherine’s and
the family’s current situation.
The jurisdiction and disposition orders
regarding Katherine are affirmed as they relate to Percy B.’s sexual abuse of
Katherine, and reversed as to D. F. and Percy B. on the section 300,
subdivision (b) count for failure to provide appropriate medical care and
psychological treatment for prior sexual abuse.
The matter is remanded to the dependency court for further proceedings
not inconsistent with this opinion.
WOODS,
Acting P. J.
We concur:
ZELON, J.
SEGAL, J.
name="_ftn1" title="">[1] The elder son (J. B.-F.)
is now an adult.
name="_ftn2" title="">
[2] By ignoring the findings and orders as to both Celine B.-F.
and D. B.-F., Percy B. and D. F. have waived
any issues as to either of these two children.
(Kim v. Sumitomo Bank of
California (1993) 17 Cal.App.4th
974, 979.)
Percy B. was
permitted to return home as long as both he and D. F. participated in court
ordered programs. His contact with the
children was to be monitored by D. F. or another monitor. Katherine, D. and Celine
were
all to be provided with individual counseling to address sexual abuse, with D.
and Celine to be enrolled in therapy while attending
school out of state.
We requested and obtained subsequent minute orders in
this case and take judicial notice of them.
Pursuant to Evidence Code sections 452, subdivision (d), and 459,
subdivision (a), we take judicial notice of these orders. (In re C.C.
(2009) 172 Cal.App.4th 1481, 1487, fn. 3.)
In April 2013, Katherine was declared a non-minor
dependent and services for her were terminated, with a further hearing set for October 9, 2013.
Meanwhile, in September, the court terminated
jurisdiction as to D. but retained jurisdiction as to Celine, with
services to continue.
As of October 9,
2013, Katherine remained a dependent child, and remained in her
placement, with the Department ordered to provide the family with permanent
placement services, with a further hearing scheduled for April 2014.
