In re Julienne B.
Filed 11/12/13 In re Julienne B. CA2/7
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 Julienne B. et al., Persons
Coming Under the Juvenile Court Law.
B245265
(Los Angeles
County
Super. Ct.
No. CK91713)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Appellant,
v.
ALEXIS K.T. et al.,
Defendants and Appellants.
APPEALS
from orders of the
Superior Court, Mark A. Borenstein, Judge.
Affirmed in part and reversed in part.
John F. Krattli,
County Counsel, James M. Owens, Assistant County Counsel, Jacklyn K. Louie,
Principal Deputy County Counsel, for Plaintiff and Appellant.
Linda Rehm,
under appointment by the Court of Appeal, for Defendant and Appellant, Alexis
K.T.
Christopher
R. Booth, under appointment by the Court of Appeal, for Defendant and
Appellant, S.B.
_____________
Alexis K.T. (Mother) and S.B.
(Father), the parents of 16-year-old Julienne B. and three other children,
appeal from the juvenile court’s jurisdiction findings and disposition order
declaring Julienne a dependent child of the court under Welfare and
Institutions Code section 300, subdivision (c) (serious emotional damage),
custody and placing her with Mother under the supervision of the Los Angeles
County Department of Children and Family
Services (Department). The
Department cross-appeals from the court’s dismissal of the sexual abuse allegations
in the dependency petition under section 300, subdivisions (b) (failure to
protect), (d) (sexual abuse) and (j) (abuse of sibling), and its dismissal of
the petition as to Julienne’s 10-year-old sister J.B. We affirm the dismissal as to J.B., reverse
the subdivision (c) jurisdiction findings and disposition order regarding
Julienne and remand the matter for further proceedings in the juvenile court.
FACTUAL AND PROCEDURAL BACKGROUND
On February 3, 2012 the Department
filed a dependency petition on behalf of Julienne, J.B. and their two brothers
(one then 16 years old, the other 15 months old), alleging Father had been
sexually abusing Julienne since she was seven years old, including fondling her
breasts, digitally penetrating her vagina and forcibly raping her. The petition additionally alleged Mother knew
of the sexual abuse and failed to protect Julienne. The Department alleged the ongoing sexual
abuse placed all four children at risk of serious harm under section 300,
subdivisions (b) and (d). The petition
further alleged Julienne’s three siblings were at risk that they would be
abused or neglected pursuant to section 300, subdivision (j).
Julienne had disclosed instances of
sexual abuse by Father to her older brother and several of her friends and described
the abuse in detail to police officers who interviewed her following the
initial referral of the matter to the Department through its child abuse
hotline. She confirmed the abuse in
sessions with the Department’s investigator and social workers and to mental
health professionals, providing consistent descriptions of Father’s improper
actions. Father denied the allegations. Mother also denied any sexual abuse of
Julienne or her younger sister had occurred.
The children were detained from
Father and Mother and then released to Mother once the Department could verify
Father had moved out of the family home.
By March 31, 2012 Julienne had recanted her abuse charges,
explaining she was angry with Father, who was very strict and disapproved of
her clothing, dating boys and use of social media late at night; she was also
upset by the continuing arguments between Mother and Father about their
increasingly desperate financial situation following the failure of the family
business (a donut shop). Mother reported
to the dependency investigator she had examined Julienne’s journal after the
children had been detained and found no mention at all of sexual abuse, only
Julienne’s notes that she hated Father and thought her parents did not belong
together. Mother believed Julienne was fabricating
the sexual abuse allegations to force Father out of the home. Father described himself as a conservative,
strict Asian parent and attributed Julienne’s false charges to her anger at his
attempts to discipline her and control her behavior by setting rules.
At the jurisdiction hearing held
over several days in September 2012, the Department introduced into evidence
its detention report dated February 3, 2012 with attachments including the
police reports made following the initial sexual abuse allegations, its
jurisdiction/disposition report dated March 28, 2012 and a March 13, 2012
report of forensic interview of Julienne by Dr. Lydia Joseph-Hernandez, a
clinical psychologist affiliated with Los Angeles County-University of Southern
California Medical Center. The
Department also submitted a DVD and transcript of the interview. All of this material predated Julienne’s
recantation on March 31, 2012. Finally,
the Department introduced an interim review report dated May 7, 2012, which
attached a multidisciplinary assessment team (MAT) report. The Department’s position was that Julienne’s
original charges of sexual abuse were true and her retraction the result of
pressure and lack of support from Mother.
Julienne, called by Father, was the
only witness at the hearing. She testified
in chambers, yet again stating the abuse allegations were not true and
insisting no one had coached her or encouraged her to recant the charges. She explained her desire for more freedom in
her personal life, her frustration with Father’s strictness and her unhappiness
with her parents’ arguing led her to research what she could do to use against
Father. One of her friends told her
about another girl who had been raped by her stepfather, which gave Julienne
the idea of making the sexual abuse allegations that precipitated the
dependency petition. She subsequently
learned the consequences of her false allegations were far more serious than
she had anticipated and was now telling the truth.
After the close of evidence and
argument of counsel on September 21, 2012, the court ruled the Department had
not met its burden of proof with respect to the section 300, subdivisions
(b), (d) and (j) counts. The court
explained, after viewing the DVD recording of her forensic interview, which
occurred several days before she recanted, and observing Julienne’s demeanor
during her live testimony and while in court as counsel and the court discussed
what had or had not occurred, it found her to be “exceptionally intelligent,
but manipulative and immature. . . . I think based on the evidence and burdens of
proof that Julienne concocted a plan that included the most violent, offensive
and repulsive allegations one can make against a parent, especially by a
daughter against a father. And I don’t
believe that any of these allegations were true.†The court determined the statements Julienne
made during the forensic interview were not believable, noting her unemotional,
matter-of-fact demeanor when describing years of alleged sexual abuse by her
father. And it emphasized that, when
still asserting in the recorded interview that Father had raped and otherwise
violently abused her for years, Julienne showed no anger or disgust toward
Father and no desire to have him sent to prison or even kept away from her or
her younger sister.
Although dismissing the three
counts alleged by the Department in its section 300 petition, the court on
its own motion found, based on the evidence presented during the hearing, that
Julienne was suffering from severe emotional damage, as evidenced by her severe
anxiety and aggressive behavior toward Father, and that Father and Mother had
failed to recognize the substantial need for appropriate mental health care for
Julienne. Accordingly, the court ordered
the petition amended to conform to proof to add a new section 300, subdivision
(c), allegation and sustained the amended petition as to Julienne. The petition
as to J.B. and the other two siblings was dismissed.
At a contested disposition hearing
on October 26, 2012 both Father and Mother requested that Father be allowed to
return to the family home. In addition,
Father objected to the requirement in the proposed case plan that he
participate in individual counseling and a parenting class since the sustained
allegation related to Julienne’s mental health, not disciplinary issues. He did not object to participating in
conjoint counseling with Julienne.
Julienne’s counsel joined the Department’s recommendation that Father
not be allowed to return home at that time and that family members engage in
both individual counseling and conjoint counseling before reuniting “to make
sure that the family dynamics are not such that something like this would
happen again.â€
The court acknowledged that, by
keeping Father out of the house, it was “doing exactly what Julienne had
planned inappropriately to do, and that is disturbing.†But the court emphasized its belief that,
“even though she has some measure of satisfaction for her ill-conceived plan,
it did uncover deeper concerns that I think need to be addressed.†Accordingly,
the court ordered Julienne removed from the custody of her father and returned
to her mother under the supervision of the Department. Mother was ordered to participate in
individual counseling to address case issues and conjoint counseling with
Julienne. Father was ordered to
participate in individual counseling and conjoint counseling with Julienne, but
not parenting class; his visitation with Julienne was to be monitored. The court additionally ordered family
preservation services.
name="_ftnref2" title="">[2]
Father and Mother each filed timely
notices of appeal from the jurisdiction and disposition findings and orders
under section 300, subdivision (c). The
Department filed a cross-appeal challenging dismissal of the sexual abuse
counts alleged under section 300, subdivisions (b) and (d), as to Julienne and
J.B. and subdivision (j) as to J.B., and the dismissal of the dependency
petition as to J.B.
DISCUSSION
1. The Juvenile Court Acted Within Its Discretion in Dismissing the Sexual
Abuse Counts After Finding Julienne’s Recantation Credible
The Department’s reports and Dr.
Joseph-Hernandez’s forensic interview of Julienne, introduced into evidence at
the jurisdiction hearing, would reasonably support a finding that Julienne’s
accusations of sexual abuse by Father were credible and her recantation false,
the result of pressure from Mother and concern for the welfare of her younger
siblings if Father were removed from the family home. As the Department argues, her statements regarding
the alleged sexual abuse were highly detailed and consistent over time whether
she was speaking to friends, law enforcement officers, the social worker or
forensic psychologist, all of whom found her believable. Yet the juvenile court, the sole finder of
fact, saw and heard Julienne’s testimony denying any abuse had occurred and
explaining why she had lied; the court found her recantation credible and
accepted her testimony as true. It is
not within our province to substitute our evaluation of Julienne’s credibility
for that of the juvenile court. (
1317, 1329 [“[t]hat the dependency court reasonably could have assessed [the
minor’s] credibility less favorably or that our court could reasonably make a
different assessment of credibility is not sufficient grounds for reversalâ€]; see
In re Savannah M. (2005) 131
Cal.App.4th 1387, 1393 [appellate court defers to juvenile court on all issues
of credibility]; In re Tania S.
(1992) 5 Cal.App.4th 728, 733-734 [same]; see generally People v. Albillar (2010) 51 Cal.4th 47, 60 [reviewing court
neither reweighs evidence nor reevaluates a witness’s credibility].)
To be sure,
if a witness’s testimony is physically impossible or patently false on its
face, we are not obligated to accept it.
(In re Ana C., supra, 204
Cal.App.4th at p. 1329; see People
v. Thompson (2010) 49 Cal.4th 79, 124 [“[t]he standard for rejecting a
witness’s statements on this ground requires ‘“‘either a physical impossibility
that they are true, or their falsity must be apparent without resorting to
inferences or deductions’â€â€™â€]; see generally People v. Elliott (2012) 53 Cal.4th 535, 585 [“[u]nless it
describes facts or events that are physically impossible or inherently
improbable, the testimony of a single witness is sufficient to support a
convictionâ€].) Here, although the evidence
marshaled by the Department in support of the cross-appeal tends to impeach the
credibility of Julienne’s denial of any abuse by Father, “impeachment is not impossibility.†(In re
Ana C., at p. 1329.) Julienne’s
explanation of why and how she fabricated the charge of sexual abuse certainly was
not physically impossible, and there is nothing about it that marks it as
patently false or even implausible. The
juvenile court’s decision to accept her testimony and to dismiss the sexual
abuse counts was well within its discretion.
2.
Amending the Petition To Conform to Proof Without Providing Mother and Father
Advance Notice and an Adequate Opportunity To Be Heard
a. Discussion
regarding a section 300, subdivision (c), count
Julienne
completed her testimony on the second day of the jurisdiction hearing. No party had any other evidence, and the
court pronounced the evidence closed.
Counsel for the
Department urged the court to sustain the sexual abuse allegations
notwithstanding Julienne’s complete recantation and insistence that no abuse
had occurred. Arguing next, Jennifer
Lorson, counsel for J.B. and the other two siblings, asked the court, “How can
we guaranty that my clients are going to be safe in the home? If the court takes the position that these
are lies, then how do I protect my children from this yet happening again and
being pulled out? [¶] . . . [¶] Now, my children are at grave risk of being
detained again if she decides he’s too strict again. And they get all detained again.†The solution Ms. Lorson proposed was to amend
the petition to conform to proof to add a new subdivision (b) (failure to
protect) or subdivision (c) (serious emotional damage) count. Responding to that suggestion, the court
asked how it would amend if it were to conclude from the videotaped forensic
interview and the MAT assessment that Julienne had “a serious emotional numbing
and persistent avoidance such that her conduct and her mental health puts the
children at risk.†Ms. Lorson suggested
a new subdivision (b) count, alleging the parents did not address the needs of
Julienne adequately.
name="_ftnref4" title="">[4]
The court initially expressed
skepticism, noting “I have limited jurisdiction. It’s not a family court, it’s a dependency
court. I can’t just say, oh, I think
they need counseling, which they do, whatever the outcome, and just order
counseling. I mean I have to find a
jurisdictional basis to find the children are subject to [section] 300.†Continuing with the theme presented by Ms.
Lorson, Julienne’s counsel, although emphasizing she could not argue the sexual
abuse counts should be sustained because her client’s position was to the
contrary, agreed the family needed services.
“Julienne is adamant that it didn’t happen. I don’t think anyone could say that they
don’t need services and that there’s not something abusive going on in this
home, whether it’s sexual abuse or some other kind of abuse. . . . I can’t argue for it to be sustained because
my client wishes for it to be dismissed, but I can’t argue for dismissal
because I don’t believe it would be safe for my client to have this entire
petition dismissed.â€
Father’s counsel acknowledged the
court had the power under appropriate circumstances to amend a petition to
conform to proof—giving as an example changing the details of a domestic
violence count from hitting to slapping.
But Father’s counsel argued that a change from a charge of sexual abuse
to failure to address the emotional problems of the child required advance
notice to allow Father and Mother to present different evidence regarding what
they did or did not do on that issue.
After further argument, including
the Department’s counsel’s request that the court amend to conform to proof by
including a subdivision (c) count if it did not find the evidence sufficient to
sustain the sexual abuse counts actually alleged in the petition, the court tentatively
concluded, “although not pled, the evidence amply shows that the parents failed
to, in the words of Welfare and Institutions Code section 300(c), to recognize
that she was suffering from emotional injury evidenced by anxiety and what I
can only characterize as aggression toward others, primarily her father, and
that as a result of the parents failing to take steps to address that emotional
damage, she was injured and so were her siblings.â€
court continued the jurisdiction hearing for 10 days to permit counsel to
confer with their clients regarding its tentative decision.
At the continued jurisdiction
hearing counsel for Mother and Father argued the notice for the putative
subdivision (c) count was inadequate and the evidence as presented insufficient
to demonstrate Julienne was suffering from severe emotional damage caused by
the parents’ conduct. As discussed,
following further argument from counsel for the Department and Julienne, the
court dismissed the subdivision (b), (d) and (j) counts, and amended the
petition to conform to proof and sustained the newly drafted subdivision (c)
count.
b. The
addition of a new and different basis for asserting dependency jurisdiction
after the close of evidence prejudiced Father and Mother by depriving them of
fair notice and an opportunity to respond to the charge
A juvenile court may amend a
dependency petition to conform to the evidence received at the jurisdiction
hearing to remedy immaterial variances between the petition and proof. (§ 348; Code Civ. Proc., § 470.) However, material amendments that mislead a
party to his or her prejudice are not allowed.
(Code Civ. Proc., §§ 469-470; In re Andrew
L. (2011) 192 Cal.App.4th 683, 689.)
“Given the haste with which petitions are sometimes drafted . . . , the
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 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.â€
(In re Jessica C. (2001) 93 Cal.App.4th
1027, 1041-1042 (Jessica C.);
accord, In re David H. (2008) 165
Cal.App.4th 1626, 1640 [“[o]nly if the variance between the petition and the
proof offered at the jurisdictional hearing is so great that the parent is
denied constitutionally adequate notice of the allegations against him or her
should a juvenile court properly refuse to allow an amendment to conform to
proofâ€].)
In In re Andrew L, supra, 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., supra, 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. (Id. at pp. 1644-1645.)
C., supra, 93 Cal.App.4th 1027 the court held it was error for the juvenile
court to refuse to permit an amendment that modified the description of the
sexual abuse by substituting the word “touching†for “penetrating†the child’s
vagina. (Id. at p. 1042.) Thus,
in each of these published decisions endorsing a liberal rule for allowing
amendments to conform to proof, the gravamen of the dependency petition
remained the same. Unlike the case at
bar, in none did the proposed amendment effect a fundamental change in the harm
to the child or the parental misconduct alleged. (Cf. In re
Man J. (1983) 149 Cal.App.3d 475, 481 [“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€].)
Here, in contrast to the cited
cases, it is impossible for us to reconcile the juvenile court’s radical change
in the basis proffered for dependency jurisdiction with Mother’s and Father’s
fundamental right to notice and a fair opportunity to respond to the actual grounds
upon which the petition was sustained.
(See In re Wilford J. (2005)
131 Cal.App.4th 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, 188 [“[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
Nickolas F. v. Superior Court (2006)
144 Cal.App.4th 92, 117-118 [juvenile 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 Julienne’s mental
health and possible emotional problems were discussed in the various reports
submitted by the Department, Mother and Father had no notice evidence should be
presented concerning (a) the nature and severity of any emotional damage she
may be suffering;
name="_ftnref7" title="">[7] (b) Father’s or Mother’s responsibility, if
any, for the initial onset of such emotional damage; or (c) their
responsibility, if any, for Julienne continuing to suffer emotional damage
because they minimized or denied the seriousness of it or refused to seek
appropriate care for her mental suffering.
(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€].)
Indeed, Presiding Justice Sills
writing for the court in Jessica C.,
supra, 93 Cal.App.4th 1027—the case relied upon by the Department to
support the juvenile court’s addition of a new subdivision (c) count after the
close of evidence—condemned as a due process violation the very type of
amendment to conform to proof 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
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.) We understand the
juvenile court’s action as a well-meaning attempt to protect Julienne and to
provide services to her and her parents, rather than a “cheap tactic.†Nonetheless, we agree with the
to add a subdivision (c) count, first suggested by counsel for Julienne’s
siblings after the close of evidence that was directed only to sexual abuse
allegations, should have been refused.
Alternatively, the evidentiary portion of the hearing should have been reopened
to allow (after an appropriate continuance) Father and Mother to present
evidence to refute the amended allegations.
c. A
remand for further proceedings, rather than dismissal of the case, is the
appropriate relief on appeal
On the record before us the jurisdiction findings under
section 300, subdivision (c), must be reversed, and the disposition order
removing Julienne from Father’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 of the case—that
is, the failure of the Department, Julienne or Mother and Father to
specifically address whether Julienne is properly found a dependent child of
the court under section 300, subdivision (c)—we decline Mother’s and Father’s invitation
to dismiss the dependency proceedings at this point. Our conclusion that the amendment to conform
to proof should have been refused for lack of adequate notice does not mean the
Department cannot try again or that it may not be in Julienne’s best interests
for her to be removed from the custody of Father. (See Janet
T., at p. 392.) However, we
recognize circumstances may have arising during the pendency of this appeal
that could affect the juvenile court’s evaluation of any new petition filed by
the Department. Accordingly, in any
further proceedings on remand the juvenile court should give appropriate weight
to Julienne’s and the family’s current situation.
DISPOSITION
The order dismissing the petition as to J.B. is
affirmed. The jurisdiction findings and
disposition order as to Julienne are reversed and the matter remanded to the
juvenile court for further proceedings not inconsistent with this opinion.
PERLUSS,
P. J.
We
concur:
WOODS,
J. ZELON,
J.
are to the Welfare and Institutions Code unless otherwise indicated.
juvenile court terminated the home-of-parent-mother order and placed Julienne
with both parents under the supervision of the Department. We take judicial notice of the court’s
October 8, 2013 minute order pursuant to Evidence Code sections 452,
subdivision (d), and 459.
