Humboldt Cnty. Dep't of Health & Human Servs. v. H.P. (In re S.V.)

86 Cal.App.5th 1036

302 Cal.Rptr.3d 753

IN RE S.V., a Person Coming Under the Juvenile Court Law.

Humboldt County Department of Health and Human Services, Plaintiff and Respondent,

v.H.P., Defendant and Appellant;

R.V., Defendant and Respondent.

A163272

Court of Appeal, First District, Division 5, California.

Filed December 22, 2022

Elizabeth Klippi, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant, H.P.

Leslie A. Barry, Huntington Beach, under appointment by the Court of Appeal, for defendant and respondent, R.V.

Scott A. Miles, Interim County Counsel, Anne H. Nguyen, Deputy County Counsel, for plaintiff and respondent, Humboldt County Department of Health and Human Services.

Suzanne Davidson, Glendale, under appointment by the Court of Appeal, for minor, S.V.

Jackson, P. J. Parents have a compelling interest in the companionship, care, custody, and management of their children, which is "ranked among the most basic of civil rights," and before a parent is deprived of this interest, the state must provide the parent with adequate notice and an opportunity to be heard. ( In re B.G. (1974) 11 Cal.3d 679, 688–689, 114 Cal.Rptr. 444, 523 P.2d 244.) Parents have a due process right to be informed of the nature of the proceedings and the allegations upon which the deprivation of custody is predicated so that they can make an informed decision whether to appear, prepare, and contest the allegations. ( In re Wilford J. (2005) 131 Cal.App.4th 742, 751, 32 Cal.Rptr.3d 317.) "Notice of the specific facts upon which the petition is based is necessary to enable the parties to properly meet the charges." ( In re Jeremy C. (1980) 109 Cal.App.3d 384, 397, 167 Cal.Rptr. 283.)

H.P. (mother) appeals from jurisdiction and disposition orders finding that S.V. (minor) came within the jurisdiction of the juvenile court on the basis that she was suffering serious emotional abuse or was at risk of suffering serious emotional abuse due to mother's unsubstantiated belief that R.V. (father) sexually abused minor. The Humboldt County Department of Health and Human Services (Department) filed a petition alleging that minor had been sexually abused by father. Mother was not named as an offending parent in the petition. The juvenile court found that the Department failed to prove the sexual abuse allegations against father. The court, however, did not dismiss the petition. Instead, the court found that the evidence supported jurisdiction based upon unpleaded allegations of emotional abuse by mother, a position urged by minor's counsel but opposed by the Department. As a result of finding jurisdiction, the court subsequently entered a disposition order.

We conclude that the juvenile court violated mother's due process rights when it established jurisdiction based on the conduct of a parent the Department never alleged was an offending parent, and on a factual and legal theory not raised in the Department's petition. We reverse the disposition order and jurisdiction finding as to mother and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

I. Mendocino County Proceedings

The dependency petition at issue in this appeal was filed by the Department in Humboldt County on November 10, 2020. However, the family was previously involved in family law proceedings in Mendocino County, and Mendocino County's Department of Social Services, Family and Children's Services (FCS), previously investigated allegations that father sexually abused minor. The Humboldt County Juvenile Court in this case took judicial notice of the prior proceedings in Mendocino County and admitted into evidence the Department's reports and addendums regarding the prior Mendocino County FCS investigations, which we now summarize.

A. Family Law Custody Proceedings

Father and mother, who met while father was vacationing in Vietnam, were married in the United States in 2014. Minor was born in May 2014 as a result of this union. In November 2018, father discovered mother kissing another man in a car with minor in the car. Father filed a petition for dissolution of marriage, and mother moved with minor from Ukiah to Redwood Valley. Mother and minor lived with mother's boyfriend, whom mother had met two weeks prior.

Father's petition sought sole legal and physical custody of minor, and on November 20, 2018, he filed a request for a temporary emergency custody order. Mother's response asserted father was a chronic alcoholic, had been abusive to her, and had physically and sexually abused minor. Over the course of the next two years, in response to mother's and father's various requests for temporary emergency custody modification orders and mother's request for a domestic violence restraining order (DVRO) alleging father physically and sexually abused minor, Mendocino County family law judges issued several temporary custody orders. The orders variously granted temporary shared physical custody; temporary sole physical custody to mother with either suspended visitation for father pending investigation of sexual abuse allegations or supervised visitation with father; or sole physical custody to father with supervised visitation with mother or with unsupervised visitation with mother. Further complicating matters, in January 2019, mother moved with minor to Eureka, Humboldt County. In April 2019, the court denied mother's request for a DVRO, finding insufficient evidence to support issuing a permanent DVRO.

On November 3, 2020, the court issued a final custody and visitation order, granting mother and father joint legal custody, mother sole physical custody, and father visitation essentially every other weekend, and setting a holiday schedule. On November 6, 2020, mother filed a request for a temporary emergency custody order seeking sole physical custody and suspending all visitation with father based on allegations that minor disclosed to her therapist that father sexually abused her during a visit in mid-October. Father also filed a request to modify custody, seeking sole physical and legal custody and supervised visitation with mother. Father alleged that mother's repeated allegations of sexual abuse were false.

Mendocino County family law Judge Mayfield submitted to Mendocino County FCS an application pursuant to Welfare and Institutions Code section 329¹ to commence dependency proceedings, dated November 24, 2020.² The application stated that beginning in 2017 or 2018, mother made numerous allegations that father had inappropriate sexual contact with minor and that social workers investigated the claims and found they were inconclusive or unsubstantiated. It further summarized mother and father's custody and visitation litigation culminating in the competing requests for modification orders. Judge Mayfield requested an investigation "of the past and current allegations that [minor] ... has been sexually abused by [father]. In the event that the allegations of sexual abuse by [father] are determined to be unfounded, the Family Court respectfully requests an investigation as to whether [mother] has emotionally abused [minor] by repeatedly suggesting to [minor] that she has been the victim of sexual abuse by [father], including making one or more audio tapes in which [minor] makes statements about alleged sexual abuse while her mother speaks to her in English and in Vietnamese; subjecting [minor] to forensic interviews by Child Welfare social workers and law enforcement officers; and requesting in 2019 that a SART [suspected abuse response team] exam be performed on [minor]."

On November 30, 2020, Mendocino County FCS filed a response to Judge Mayfield's application stating that the Humboldt County Department had already filed a petition and that minor had been detained by the Humboldt County Juvenile Court. Mendocino County FCS's response enclosed a copy of the Humboldt Department's petition alleging jurisdiction under section 300, subdivision (d) based upon allegations of sexual abuse by father. The Mendocino County Family Court suspended its proceedings pending the outcome of the Humboldt County dependency case.

B. The Department files section 300 petition.

In October 2020, the Department received a referral from minor's therapist stating that minor said father touched her inappropriately while she was in the bathtub and that after she fell asleep, she was awakened by father, who was lying next to her and putting his finger in her vagina. In November 2020, the Department conducted a forensic Child Abuse Services Team (CAST) interview with minor. Minor said she did not have a dad and father was not her dad. She said "[t]hree things happen[ ]" at father's: When she goes to sleep, he puts his fingers in her vagina; when she takes a bath, he puts his fingers in her vagina; and he puts his penis in her vagina and she bleeds. "All of those [happened] five times." Minor also said father hit her "[a]lmost like everywhere" on her body, but she did not provide any further details. On November 7, 2020, minor had a SART exam. Minor was asked during the genital exam if anyone had touched her genitals, and she said, " ‘My mom washes my vagina.’ " The exam revealed no findings of sexual abuse.

On November 10, 2020, the Department filed a juvenile dependency petition alleging minor came within the jurisdiction of the juvenile court under section 300, subdivision (d) based upon sexual abuse by father. The petition identified father as the offending parent and alleged: "The child ... has reported in a CAST interview on 11/06/2020, that she has been sexually abused by her father when she goes to her father's home on at least five prior occasions. [Minor] described, digital penetration by father to her vagina, and on at least one occasion her vagina bled after father put his ‘peanut’ in her vagina. Such ongoing sexual abuse by her father places the child at risk of harm in the father's care." (Sic. )

Minor was detained from father and released to mother's care. In ...