L. A. Cnty. Dep't of Children & Family Servs. v. Charles B. (In re G.B.)
| Decision Date | 18 October 2018 |
| Docket Number | B284833 |
| Citation | 28 Cal.App.5th 475,239 Cal.Rptr.3d 168 |
| Parties | IN RE G.B., a Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. Charles B., Defendant and Appellant; Vanessa W., Defendant and Respondent; G. B., a Minor, etc., Objector and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Jesse McGowan, San Juan Capistrano, under appointment by the Court of Appeal, for Defendant and Appellant.
Marissa Coffey, Monterey Park, under appointment by the Court of Appeal, for Objector and Appellant.
No Appearance for Plaintiff and Respondent.
Karen Green-Rose for Defendant and Respondent.
The Department of Children and Family Services (Department) filed a dependency petition on G.B.'s behalf, alleging the child had been sexually abused by her mother's boyfriend, and that her mother, Vanessa W. (mother), had failed to protect her from the boyfriend's abuse. Charles B., G.B.'s father (father), was not named as an offending parent in the petition. After finding the allegations of sexual abuse and failure to protect untrue, the juvenile court, on its own motion, added three allegations against father for emotional abuse of the child because it believed father had coached G.B. to lie about mother's and the boyfriend's conduct. Those new allegations, however, were based on facts and a legal theory not at issue in the original petition. Father objected to the court amending the petition on its own motion, and the Department and G.B. opposed the court establishing dependency jurisdiction based on father's conduct. The court later sustained one of the allegations against father, declared G.B. a dependent of the court, and terminated dependency jurisdiction with a family law exit order granting mother sole physical custody of the child.
Father and G.B. appeal from the court's disposition orders.1 We conclude the court erred in establishing jurisdiction based on a factual and legal theory not raised in the original petition. We therefore reverse the disposition orders and the jurisdiction finding as to father, vacate all orders issued after the disposition hearing, and remand the matter for further proceedings in the juvenile court.
In 2014, mother, father, and G.B. (then five years old) were involved in a family court proceeding. The court in that case issued a custody order awarding mother and father joint legal and physical custody of G.B., with father having custody of the child during alternating weekends and certain holidays, and mother having custody of the child all other times.
Around the time of that family court proceeding, the Department investigated mother on three occasions after receiving referrals that she had physically and sexually abused G.B. Each of those referrals was deemed inconclusive or unfounded.
The first investigation occurred in February 2014, after G.B. told father that mother had "tickled" G.B.'s private parts and kissed G.B. using her tongue. The Department deemed the referral inconclusive after G.B. admitted she made up the allegation that mother had touched her inappropriately.
The Department investigated mother again in April 2014, after G.B. returned from mother's custody with a black eye. G.B. initially told father's girlfriend that she had been hit in the eye with a toy car at school, but she later said that mother had struck her face. When interviewed by one of the Department's social workers, G.B. admitted she had lied about mother striking her face. G.B. claimed she made up the lie because father's girlfriend did not believe her original explanation. The Department deemed the referral inconclusive based on G.B.'s admission that she had lied about mother striking her face.
The Department investigated mother a third time in January 2015, after G.B.'s 12-year-old male cousin reported that G.B. had kissed him on the lips. G.B. told father's girlfriend that she had learned her behavior from mother, who allowed her to watch pornographic movies. The Department deemed the referral unfounded after G.B. told a social worker she is only allowed to watch the Disney Channel and Nickelodeon at her mother's house, and that mother's television has a lock on it that prevents G.B. from watching other channels.
On August 1, 2016, the Department received a referral that mother's boyfriend had sexually abused G.B. The child reported that sometime in June 2016, she was playing in mother's living room with the boyfriend. The boyfriend put G.B. on his lap, rubbed his "private part" against G.B.'s body, touched her "private part" with his hand over her clothing, and exposed his penis to the child. G.B. described a second incident when she stayed at a hotel near Disneyland with mother, the boyfriend, the boyfriend's ex-wife, and the boyfriend's son. After the boyfriend got out of the shower, he walked into the same room as G.B. with his penis exposed through his towel. G.B. told the boyfriend that she could see his penis, to which he responded "oh" and walked away.
After reporting the alleged sexual abuse, G.B. started seeing a therapist. During one interview, G.B. told the therapist the alleged sexual abuse by mother's boyfriend " ‘did not happen.’ "
On September 21, 2016, the Department filed a dependency petition on G.B.'s behalf, alleging mother's boyfriend had sexually abused G.B. on two occasions and that mother was aware of, and failed to protect G.B. from, the boyfriend's abuse. ( Welf. & Inst. Code 2, § 300, subds. (b)(1) & (d).) The Department named father as one of G.B.'s parents in the petition, but it did not allege he had engaged in any wrongful conduct with respect to the child.
At the September 21, 2016 detention hearing, the court found father was G.B.'s presumed parent, ordered G.B. detained from mother's custody, and awarded mother visits with the child three days a week. The court expressed concern, however, that the allegations in the petition were untrue, citing the family's "one-sided" history of making unsubstantiated allegations against mother.
On November 29, 2016, the court held a pre-trial conference hearing. The court stated it had read the Department's jurisdiction and disposition report and watched a video-recorded interview of G.B. conducted by the child's therapist. The court noted that during the interview, G.B. appeared "very happy," "bouncy," and "practically giddy," and she admitted to the therapist that mother's boyfriend never sexually abused her. The court warned that if it concluded the allegations against mother and her boyfriend were false, it would "amend[ ] the petition to have the father be offending for calling in false allegations" and issue a custody order giving "sole legal, sole physical [custody] to the mother, with monitored visitation for the father."
On December 12, 2016, the court commenced the jurisdiction hearing. Mother, G.B., and father testified, and the court admitted into evidence the video-recording of G.B.'s interview with her therapist, the transcript of that interview, the Department's reports, and a photograph of mother's boyfriend.
The court issued its findings and orders without hearing argument from the parties.3 After the evidentiary portion of the hearing ended, the court found that "[t]he Department has clearly not met its burden with respect to mother." The court explained that father was not credible and that G.B. could not be "truth-qualified" because she "ha[d] been so abused by father." After reiterating that the evidence "does not support an allegation against the mother," the court released G.B. to mother with father to have monitored visitation.
Although the court did not sustain the sexual abuse and failure to protect allegations, the only allegations asserted in the petition, it did not dismiss the petition. Instead, the court stated it intended to sustain jurisdiction allegations against father under section 300, subdivisions (a), (b), and (c), because it believed father had coached G.B. to fabricate the accusations against mother and her boyfriend.4 None of the parties asked the court to assert allegations against father, and neither the Department nor the court filed a new or amended petition naming father as an offending parent. Father's counsel objected to the court asserting allegations against father. After determining it had not given father sufficient notice to allow him to contest the newly-crafted allegations against him, the court continued the jurisdiction hearing to January 9, 2017.
On January 9, 2017, the court commenced a jurisdiction hearing to address the allegations it had asserted against father. Father's counsel objected to the court adding allegations against father on its own motion, arguing the court's procedure violated father's due process rights:
The court rejected counsel's argument, explaining it was acting not as a party to the case but rather pursuant to its "authority to amend according to proof and to find a non-offending parent offending." The court went on: ...
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