Filed 1/25/17 Modified and Certified for Pub. 2/21/17 (order attached)




       IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                        DIVISION TWO


In re MARCUS C., JR., a Person                           B270853
Coming Under the Juvenile Court                          (Los Angeles County
Law.                                                     Super. Ct. No. DK14579 )


LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES et al.,

       Plaintiffs and Appellants,

       v.

MARCUS C., SR, et al.,

       Defendants and Respondents.



//
//
//
//
//
//
     APPEALS from an order of the Superior Court of Los Angeles County.
Zeke Zeidler, Judge. Reversed with directions.


     Mary C. Wickham, County Counsel, R. Keith Davis, Assistant County
Counsel, Julie Roberson, Deputy County Counsel, for Plaintiff and Appellant
Los Angeles County Department of Children and Family Services.


     Martha Matthews, under appointment by the Court of Appeal, for
Appellant Minor Marcus C., Jr.


     Mitchell Keiter, under appointment by the Court of Appeal, for
Defendant and Respondent Marcus C., Sr.


     Lori A. Fields, under appointment by the Court of Appeal, for
Defendant and Respondent C.S.




         ___________________________________________________

                                     2
      The Los Angeles County Department of Children and Family Services
(the department) and minor, Marcus C., Jr. (the child), collectively
appellants, challenge an order dismissing a juvenile dependency action after
an adjudication hearing under Welfare and Institutions Code section 300.1
      Appellants argue that there was no substantial evidence to support
dismissal of the petition, and the juvenile court abused its discretion by
refusing to amend the petition to conform to proof. We agree, reverse the
order dismissing the petition, and return the matter for further proceedings.
                 FACTUAL AND PROCEDURAL HISTORY
The Dependency Petition
      On December 10, 2015, the department filed a Juvenile Dependency
Petition (the Petition) on behalf of the child, who was then two years old. The
Petition alleged (a) that the child was at risk because his parents‟ (C.S.
(Mother) and Marcus C., Sr. (Father)) substance abuse and failures to protect
the child endangered the child‟s physical health and safety, which “plac[ed]
the child at risk of serious physical harm, damage . . .”; and (b) that the
parents had created a “detrimental and endangering home environment”
which “endanger[ed] the child‟s physical health, safety and well being and
place[ed] the child at risk of serious physical harm and damage.” The
department sought a determination based on these allegations that the
juvenile court exercise jurisdiction over the child pursuant to section 300.
(§ 355, subd. (a).)
The Detention Report
      The Detention Report filed with the Petition noted that the child had
been detained on December 7, 2015. It set out the factual bases for that


1    All further statutory references are to the Welfare and Institutions
Code unless otherwise stated.
                                        3
detention and the allegations of the Petition. These facts included the
following: The family had had an earlier contact with the department in
2014. Allegations of general neglect against the parents had been made. The
reporting party stated then that Mother and Father had been recently
evicted from an apartment for nonpayment of rent and smoking marijuana
all day, and that Mother left the child with the maternal grandmother for
extended periods of time. (When located in 2014, the child was found healthy
and happy.) Also, Mother had missed a scheduled drug test and then refused
an additional test by explaining that she did not need to test because the
child was living with Father in Washington at that time. When Father was
interviewed by telephone in 2014, he denied he was then using any drugs.
He explained that he was living with his parents and had a strong support
system. The department closed the 2014 referral for “General Neglect” as
inconclusive and due to the family relocating to the state of Washington.
      The 2015 Petition was the result of a referral made on October 11 of
that year. The referring party alleged that the child had suffered severe
neglect by Father, including the child falling out of a second story window of
the apartment in which the child was then living with Father. The child
landed on some bushes which cushioned his fall. He had scratch marks on
his forehead and chin but no other significant visible injuries. Father was
asleep in the apartment when the child fell. A neighbor, who found the child
and took him upstairs to the apartment to awaken Father, took the child and
Father to the hospital where the child was admitted for observation. The
incident was reported to the department; a doctor at the hospital informed
the department‟s social worker that the child had not sustained any injuries
but the doctor was concerned for the child‟s safety.



                                       4
      The hospital discharge summary included the following regarding the
state of care for the child: “Of note, [the child] has been lost to follow up with
his pediatrician and is behind in shots, he is also speech delayed on exam and
based on history and should be evaluated by a specialist which can be
arranged by a pediatrician. Family was given referral for local pediatricians
and also information/teaching on child proofing their home.”
      The child‟s medical records also noted that the child “has not been seen
by a pediatrician since infancy and he does have . . . some behaviors
concerning for an autism spectrum disorder.” Mother advised hospital staff
that she had difficulty getting the child to his primary care physician due to
insurance issues. She told staff that the child has met his milestones but
only has a vocabulary of 50 words and did not speak in sentences. The
parents were instructed to follow up with a pediatrician in one to two days.
      Father told the social worker who interviewed him at the hospital that
he is from the state of Washington and moved to California two weeks prior
to the incident to help Mother with their son while she opened a restaurant.
Father admitted smoking marijuana while he was in Washington, but not
since he had relocated to California. Father was willing to drug test. He
stated he had been arrested twice for robbery.
      Father explained that he had been very tired since he relocated to
Los Angeles. He stated that on the date of the fall, the child had fallen asleep
at around 6:30 p.m. on a mattress on the living room floor. Father fell asleep
next to the mattress. Father did not hear the child get up, but was awakened
when he heard someone banging on the apartment door. Father was in shock
when he was told that the child had fallen from the window. A neighbor
offered to take them to the hospital. Father was told that someone had called
911 but Father decided to go with the neighbor to the hospital so they could

                                        5
get there sooner. Father stated that he would make sure the windows and
screens are secure.
      The apartment manager later told a social worker that she would have
the screen replaced and would give Father locks to go on the bottom of the
windows.
      Mr. Jones, the neighbor who took Father and the child to the hospital,
reported that he was in the pool area of the apartment building when he saw
an object fall from the upstairs window into the bushes. When Mr. Jones
realized that the object was a child, he jumped the fence and went to assist.
As Mr. Jones approached, the child got up and walked towards Mr. Jones.
Mr. Jones immediately went to Father‟s apartment and knocked and kicked
on the door until answered. Father appeared to just have awakened.
      A downstairs neighbor, who did not observe the incident, on an earlier
date had observed Father pinching the child. On other occasions this
neighbor had seen Father smoking a cigarette while the child would run
unattended in the driveway at a distance from Father. The neighbor had
observed different men residing in the apartment. Father was the third man
to live there.
      The police report of the incident contained a statement from a neighbor
who lived below the parents who said Father had recently allowed the child
to run around and go into the driveway unattended. When the neighbor told
him to watch the child, Father responded, “It‟s not my kid.” The neighbor
was concerned for the child because Mother had not recently been around.
From what the neighbor observed, Father did not see the child as a priority.
On the date of the fall, the neighbor heard a loud sound and realized a child
had fallen out of the upstairs window. Father did not answer the door for



                                       6
almost eight minutes after the neighbor began knocking on the apartment
door to alert him to the child‟s fall.
      Father told police officers that he was the child‟s Father. Father stated
that he fell asleep while the child was napping. Father thought the windows
were shut because the air conditioner was on. This was the first time
something like this had happened. Father denied pinching the child but said
he does spank him “on the butt” to discipline him. Father said he did watch
the child when they were outside. Father told the police officers that he
smoked marijuana but not around the child and stated that he had not
smoked marijuana for a couple of days prior to the fall.
      When police officers went to the apartment, they also spoke to a
neighbor, who estimated it took nine minutes from the time the neighbor had
begun to knock on the apartment door for Father to open it. At the
apartment, the officers observed the bushes, and noted that the distance
between the window and the bushes was approximately 15 vertical feet.
They also saw two chairs in front of the living room window, either of which
the child could have climbed before falling out. The window locking
mechanism was broken. The apartment had edible food. There was a broken
marijuana pipe easily accessible to the child on the living room floor, which
was unkempt. The bathroom had two open knives on the counter, within the
child‟s reach. There was some type of smoking apparatus inside the sink.
Father indicated that he used it to smoke marijuana and in order to conserve
marijuana. Officers did not find any marijuana or any other drug in the
apartment.
      Mother told police officers that Father moved in two weeks prior to the
incident to help her with the child and she trusted Father with the child,
describing him as “protective” of the child. She noted that Father was a

                                         7
heavy sleeper. Mother denied smoking marijuana but said Father usually
did so in the mornings. Mother and the child would go to the park or for a
walk when he was smoking marijuana. (Mother had told the social worker
she had no concerns about Father caring for the child and considered the
incident an accident.) No criminal charges were filed.
      The department advised the parents to make sure there were no objects
near windows onto which the child could climb and to make sure the windows
were safely locked. The parents were told to follow up with the child‟s
medical appointments. The department stated that it would make
unannounced visits. The parents were told they must submit to on demand
drug tests.
      On the afternoon of October 22, 2015, the social worker made an
unannounced visit to the home. Mother was there, still in her pajamas. The
social worker observed the residence to be disheveled, with dirty diapers on
the carpeted floor in the living room, dirty clothes scattered around the home,
along with dirty dishes. There was a six-pack of beer on the table. Mother
stated that Father was working. Mother explained the home was dirty and
she was still in her pajamas because she was stressed. Mother‟s plans to
open a coffee shop had not worked out; she had lost $40,000, which her
mother had given to her to open the coffee shop. The child appeared healthy
and very active on this visit. The window was closed and had proper locks.
      Mother reported that the child‟s medical records are in Washington,
where the family had lived before coming to California. She reported that the
child was up to date with his immunizations. Mother said that Father
smokes marijuana but not in the child‟s presence. Mother denied using drugs
and stated that she was willing to drug test on October 23, 2015. Mother



                                      8
indicated that she would ask Father to submit to a drug test on the same
date. Neither parent submitted to the test then.
      On November 4, 2015, the social worker received an e-mail about a
child abuse hotline call concerning the child. The reporting party stated that
neither parent worked and both parents smoked marijuana although they did
not smoke in front of the child. The reporting party was concerned about the
parents‟ ability to care for the child because the parents do not work; they
have no source of income; they both smoke marijuana; and they do not have
any insight about properly caring for the child.
      The reporting party stated that the maternal grandmother had been
paying the parents‟ rent and supporting them. The parents used the child as
leverage against the maternal grandmother, who was no longer willing to pay
their rent or support them. Mother had asked the maternal grandmother to
take care of the child from Monday through Friday, with Father taking care
of the child on the weekends. The maternal grandmother had asked Mother
to relinquish custody of the child so the maternal grandmother could be the
legal guardian or adopt him. Mother refused the maternal grandmother‟s
request.
      When interviewed, the maternal grandmother confirmed that she was
no longer willing to pay rent for the parents, who had until the first of
December 2015 to move out of the apartment. She stated that she did not
believe Mother used drugs but did think Mother was depressed. According to
the maternal grandmother, Mother‟s home is always messy. She was aware
that Mother did not take good care of the child.
      When the social worker went to the family home on November 6, 2015,
no one answered the door. She spoke with the apartment manager, who
confirmed that the parents had until December 2015 to move. The manager

                                       9
had heard from residents that, after the child fell, a tenant knocked on the
door for up to 15 minutes before Father answered. The tenants said Father
did not want an ambulance and said “I‟m just babysitting.” Another tenant
had told the manager that a week before the incident, the child had been in
the carport outside, where he was unsupervised.
      On November 9, 2015, the social worker attempted to speak with
Mother by telephone, was unsuccessful, and left a voicemail message. On
November 20, 2015, the social worker went to the apartment and knocked at
the door, but no one answered. The social worker called Father‟s cell phone
number but heard a message that the phone was not in service. The social
worker then spoke with Mother via cell phone. Mother stated that she was in
the process of moving in with a friend and that the maternal grandmother
was caring for the child. Mother reported that the child would be in the
maternal grandmother‟s home where the social worker could see him the
following Monday morning, November 23, 2015.
      When the social worker arrived at the maternal grandmother‟s home
on November 23, the maternal grandmother reported that Mother had taken
the child the previous Friday. The maternal grandmother reported that
Mother was working at a restaurant and a neighbor was caring for the child.
The maternal grandmother reported that she and her daughter had a
“strained relationship,” and that she would continue to financially support
her daughter if she would take good care of the child. Prior to the Friday that
Mother took the child, the maternal grandmother had been taking care of
him for a couple of weeks from Monday through Friday.
      The social worker then spoke to Mother on the telephone. Mother
reported that Father had picked up the child from Mother‟s new residence in



                                      10
Corona that morning and taken him to school (day care). Mother informed
the social worker that she was scheduled to begin working in December 2015.
       The social worker expressed concerns to Mother about the parents‟
failure to submit to their drug tests as she had instructed in October. Mother
said that she did not have transportation to the testing site. The social
worker also expressed concerns that the parents were under the influence of
controlled substances while caring for the child and that the parents were
being evasive about contacting the department. Mother became upset and
defensive, stating that she was under a lot of stress with having the
department being in her life and transitioning to a new residence.
       The social worker spoke to Pamela Smith, to whose apartment Mother
had relocated. She stated that she is Mother‟s friend and wanted to provide a
stable home and help her with the child while Mother was at work.
Ms. Smith reported that Father was not residing in her home. Ms. Smith
agreed to take Mother to the drug testing site on the same date. (Mother did
test; her results came back positive for cannabinoids at 74 nanograms per
milliliter.)
       The social worker went to the location of the child care facility and
observed the child playing outside with other children and saw that the child
appeared healthy and had no visible marks or bruises.
       On November 24, 2015, the social worker visited Mother at the Smith
residence, a three-bedroom apartment in Corona. Upon inquiry, Mother
reported that the child had not been to the doctor even though the hospital
had recommended a visit after his discharge following the fall. She said she
had just recently received her son‟s Medi-Cal card. Mother also claimed that
she received a telephone call from a healthcare provider who told Mother that
it was not necessary to bring the child in for a follow-up visit. Mother

                                       11
complied with the social worker‟s request for Mother to schedule an
appointment with the child‟s pediatrician for a physical examination and
immunization update.
      On December 2, 2015, Michelle Franco, who had lived directly below
the parents in the apartment from which the child had fallen, reported that
Father did not work, Mother was never home, and Father was the child‟s
caretaker while they had lived at that location. She said that Father got
“high” all day. Ms. Franco had complained to the apartment manager several
times about the parents smoking marijuana in the apartment and stated it
smelled like “weed” all the time. She saw Father pinch the child one day
while the child was crying. She saw Father smoking a cigarette outside and
not watching the child, who wandered near the driveway. When she took the
child back to Father, he said, “Good looking out.” Two weeks before the fall,
when she asked him if he was the child‟s father, he said, “This is not my
baby, I‟m helping her co-parent.” Also about that time, Ms. Franco had
occasion to go to the apartment to return the family‟s puppy which had
wandered away outside. Father answered the door, holding the child. She
said the apartment smelled like marijuana.
      On December 3, 2015, the social worker spoke to the paternal
grandmother, who lives in Washington. The paternal grandmother did not
know the child had fallen from the window. She thought Father was a good
father who had taken good care of the child when they lived in Washington.
She said Mother was “„rotten” at watching the child because Mother was
always on the computer. Mother had asked the paternal grandmother to
take the child when he was born. The paternal grandmother knew that
Mother and Father smoked marijuana and reported that it was legal to do so
in Washington.

                                      12
      Also on December 3, 2015, the social worker learned that Mother failed
to show for the child‟s medical appointment, which had been made in the
presence of the social worker when she last visited Mother.
      When Father went to the department office on December 7, 2015, for an
interview, he stated he regularly smokes marijuana. He stated, “If there is
5 days I smoke 4 days,” also stating he smoked to relieve his anxiety. He
denied smoking in the child‟s presence. Father said he missed the
October 23, 2015 drug test because he had started a new job. Father
acknowledged his error in having drug paraphernalia and knives within the
child‟s reach in the apartment and said he knew the apartment was
“atrocious” and “disgusting.” Father did not take the child to the follow-up
appointment after the child‟s hospitalization because he thought Mother was
going to make an appointment. Father thought Mother loved the child but
said she was always gone.
      When interviewed at the department office, also on December 7, 2015,
Mother told the social worker that, if the child was not returned to her, she
wanted him to be placed with the paternal grandmother in Washington.
Mother planned to move back to Washington because most of her family,
including aunts and cousins, lived there.
      At the hearing on the Petition on December 10, 2015, the juvenile court
ordered the child detained from the parents (the child was first detained to
Shelter Care; later he was placed with the maternal grandmother); the
parents were allowed monitored visits. The department was ordered to refer
the parents to interactive therapy with the child. The parents were ordered
to test weekly and on demand for the presence of drugs.




                                      13
The Jurisdiction/Disposition Report
      On February 17, 2016, the department filed its Jurisdiction/Disposition
Report. This report contained a restatement of the charging allegations of
the original Petition, and repeated many of the facts and claims by and
concerning Mother, Father, and the maternal grandmother in the original
reports. It also set out new facts, including the following:
      Mother denied abusing drugs. Mother tested positive for cannabis on
November 23, 2015, and January 8, 2016; she also missed her tests on
December 11, and 29, 2015, and January 22, 2016. She told a department
interviewer that she had stopped using any drugs and had been working full
time as a preparation cook in a restaurant. Mother said that her positive
tests were because she is “big” and she was told marijuana stays in the body
for a long time. Father had told her that the day the child fell out of the
window Father had taken cold medicine. She said Father does smoke
marijuana, but never around the child.
      Father reported that as of January 2016, Father was working at a
restaurant and living at a motel. (As of the date of the hearing, he was living
in his car.) Father had started using marijuana after high school. He said he
did not use marijuana when he was with the child. Father usually kept his
knives (which the police had observed on the bathroom counter when they
went to the apartment in their investigation of the fall) in a locked box, but
forgot about the knives on the date of the incident. Father said he had not
planned to work when he came to California, but because Mother got
“scammed” about the coffee shop, they both had to work. Father said the
neighbor had misunderstood Father to say that he was not the child‟s father.
      The maternal grandmother told the department that the parents
always blame other people; they do not clean up the home; they were not

                                       14
responsible; and they were very lazy. The maternal grandmother reported
that the child had daily nightmares; he was physically aggressive and would
bite and push her when he did not want to follow directions.
      Interviewed by telephone as she lived in the state of Washington, the
paternal grandmother said that Father never had problems with the child
when they were in Washington. She reported that Mother had tried to leave
the child with her when he was two weeks old, but the paternal grandmother
had declined to take custody of the child. Father told her that the day the
child fell from the window it was not his day to watch him and Father was
very tired. The paternal grandmother reported that Mother always just
dropped the child off with anyone who was available, stating that Mother
“doesn‟t have the mother instinct.”
      The child did have a physical examination on January 5, 2016. The
child was well, but it was noted that he was obese. The child was found to
have speech delay. The Multidisciplinary Assessment Team Summary of
Finding Report (MAT Report) noted that the child was not appropriately
communicating verbally. The MAT Report noted that the child had been
observed kicking the maternal grandmother after he refused to follow a
directive. When interviewed by the MAT assessor, Mother had said she was
worried about the child because he did not talk. Mother thought he was
aggressive because he was frustrated about his difficulty with verbal
expression. Mother said the child did not have bad behaviors or nightmares
when he lived with her.
      The MAT Report also disclosed that, as of February 11, 2016, Father
was homeless and living in a car. Father was not attending parenting classes
or counseling programs and stated he wanted to return to Washington. Drug



                                      15
testing reports accompanying this document indicated that Father had tested
negative for all substances on January 15 and 29 and February 10, 2016.
      Based on the information received from all of the persons interviewed,
the department stated its concerns about the parents‟ capacity to protect the
child due to their lack of parenting skills appropriate for their young child
and their lack of insight into the family‟s issues. The department observed
that the family had initially come to the department‟s attention in October
2014, and noted that the parents had not addressed then the issues that had
existed, and had moved back to Washington instead of participating in drug
testing and parenting services. On this new investigation, the parents also
were not participating in parenting services.
      The department recommended that the juvenile court sustain the
Petition and include orders for the parents to participate in parenting classes
and in individual counseling to address child safety deficits, age-appropriate
parenting skills and alcohol and drug abuse awareness issues. The
department also recommended that the parents continue to be subject to
random drug testing.
      On March 2, 2016, in a Last Minute Information for the Court
document, the department reported that the child‟s therapist had now
scheduled Father for sessions with the child on Mondays. Mother was
scheduled to participate in sessions with the child on Thursdays. The report
also stated that Father had tested negative for substances on February 22,
2016, and Mother had tested negative for all substances on February 3, 2016.
The department‟s recommendations in this report were the same as in the
Jurisdiction/Disposition report: that the child not be returned to the parents
at this time because of the child‟s young age, the parents‟ lack of participation
in parenting classes and counseling programs to address child safety and age-

                                       16
appropriate parenting skills, and the continued need for them to address
drug awareness issues “and other case issues.”
The Jurisdiction/Disposition Hearing
      The jurisdiction/disposition hearing began in the morning on March 2,
2016, and was continued to that afternoon as the dependency investigator
(the DI) was unable to attend the morning session. In the morning session,
the court reviewed the Last Minute Report, which contained information that
the maternal grandmother had been arrested in 2009 on an assault charge
resulting from a dispute with her then-husband while they were living in
Washington, and described conditions inside her current residence, where the
child had been staying without incident since mid-December 2015. This
report identified some correctible conditions in the home (unsecured
televisions, medication within reach of the child and limited sleeping
arrangements).
      The department lawyer asked that the court “work with the caretakers”
until more information could be obtained from authorities in Washington
about the incident which had led to the maternal grandmother‟s arrest many
years before, and pointed out that the child had been living with the
maternal grandmother since the prior December and this was the only
indication of any issue with that arrangement. After first stating that it
would consider the matter later in the proceedings that day, the court
nevertheless vacated the order detaining the child with the grandmother.
      In the afternoon session that day, the court began by admitting into
evidence the Jurisdiction/Disposition Report with its attachments, including
the Petition and the Last Minute Information Report. The court then heard
the testimony of the DI. The court began the questioning of the DI with
inquiries about the parents‟ use of marijuana and whether that was

                                      17
connected to the child‟s fall. The DI responded that the fall was a result of
Father‟s inattention, also testifying that both parents were now testing clean
and there was no information that either parent was under the influence of
marijuana when the child fell. The DI also testified that the parents lacked
awareness of child safety issues and had not attended the recommended child
safety classes, which continued to place the child at risk. When the court
asked the DI about visiting the home, the court was advised that the parents
did not live together and the DI had not visited Father‟s home because he
was living in a car. The DI had not visited the Mother‟s home (but another
department employee had) and the DI did not know whether Mother had
addressed any child safety concerns at that location, or whether placing the
child there would expose the child to safety risks.
      The DI was concerned for the safety of the child because of the parents‟
failure to participate in any parenting and counseling classes, the parents
had not kept up with the child‟s immunizations, and neither parent had
taken the child to the post-fall doctor‟s appointment.
      At the conclusion of the DI‟s testimony, counsel for the department and
for the child asked the court to amend the Petition to conform to the proof
presented at the hearing. The court declined to grant leave to amend,
dismissed the Petition and released the child to the custody of his parents.
      The court granted a stay of its decision until March 17, 2016, and
ordered the child to remain in the maternal grandmother‟s home.
      On March 10, 2016, the child‟s attorney filed a notice of appeal from the
order dismissing the Petition. On March 15, 2016, counsel for the child filed
a petition for writ of mandate or, alternatively, petition for writ of
supersedeas. On the same date, we granted an immediate stay of the



                                        18
dismissal order. On March 16, 2016, the department joined in the child‟s writ
petition. The parents opposed the writ petition.
      On April 4, 2016, we granted a writ of supersedeas, staying the juvenile
court‟s dismissal order and releasing the child to the parents‟ custody
pending the determination of the appeal. The department filed a notice of
appeal from the dismissal order on April 7, 2016.
                               CONTENTIONS
      In their separate appeals, counsel for the child and for the department
raise similar contentions. We state the contentions as phrased by the
department: (1) there was no substantial evidence to support the juvenile
court‟s dismissal of the Petition, and (2) the juvenile court abused its
discretion by refusing to amend the Petition to conform to proof in lieu of
dismissing the Petition outright.
                                 DISCUSSION
      We first set out the standard by which we review the juvenile court‟s
jurisdictional determination, followed by the standard of review for its
determination to deny leave to amend. In our analysis, we determine that
the juvenile court erred in denying appellants‟ motions to amend the Petition
to conform to proof, and return the matter to the juvenile court for
reconsideration once the petition is amended.
I.    Standard of review for the jurisdictional determination
      While the petitioner in a dependency proceeding must establish the
juvenile court‟s jurisdiction over the child by a preponderance of the evidence
(§ 355), “„[i]n reviewing a challenge to the sufficiency of the evidence
supporting the jurisdictional findings and disposition, we determine if
substantial evidence, contradicted or uncontradicted, supports them. “In
making this determination, we draw all reasonable inferences from the

                                       19
evidence to support the findings and orders of the dependency court; we
review the record in the light most favorable to the court‟s determinations;
and we note that issues of fact and credibility are the province of the trial
court.” [Citation.] “We do not reweigh the evidence or exercise independent
judgment, but merely determine if there are sufficient facts to support the
findings of the trial court. [Citations.] „“[T]he [appellate] court must review
the whole record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence . . . such that a
reasonable trier of fact could find [that the order is appropriate].”‟
[Citations.]”‟” (In re I.J. (2013) 56 Cal.4th 766, 773.)2
          Substantial evidence consists of evidence that is “reasonable, credible,
and of solid value,” which would allow a reasonable trier of fact to reach the
conclusions that the trial court did reach in the case being reviewed. (In re
Christina A. (1898) 213 Cal.App.3d 1073, 1080.) While the standard of
review is deferential (In re Luke M. (2003) 107 Cal.App.4th 1412, 1417),
“substantial evidence is not synonymous with any evidence” (In re
Savannah M. (2005) 131 Cal.App.4th 1387, 1393, original italics). This court
reviews the entire record on appeal. (People v. Johnson (1980) 26 Cal.3d 557,
577.) If there is a lack of substantial evidence to support the judgment, it is
erroneous as a matter of law. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199,
fn. 6.)


2      “[W]here the issue on appeal turns on a failure of proof at trial, the
question for a reviewing court becomes whether the evidence compels a
finding in favor of the appellant as a matter of law. [Citations.]” (In re I.W.
(2009) 180 Cal.App.4th 1517, 1528.) While this articulation of the applicable
test may initially be perceived as imposing a higher burden than the no
substantial evidence test, it instead represents an alternative means of
focusing on the requirement that the judgment must be affirmed unless there
is no substantial evidence to support it.
                                          20
      The primary purpose of dependency statutes is to protect children by
safeguarding their physical and emotional well-being. (§ 300.2; In re
Nolan W. (2009) 45 Cal.4th 1217, 1228; T.W. v. Superior Court (2012) 203
Cal.App.4th 30, 42-43.)
      Section 300.2 states the legislative purpose of the statutory plan for
adjudication under the dependency statutes: “Notwithstanding any other
provision of law, the purpose of the provisions of this chapter relating to
dependent children is to provide maximum safety and protection for children
who are currently being physically, sexually, or emotionally abused, being
neglected, or being exploited, and to ensure the safety, protection, and
physical and emotional well-being of children who are at risk of that harm.
This safety, protection, and physical and emotional well-being may include
provision of a full array of social and health services to help the child and
family and to prevent reabuse of children. The focus shall be on the
preservation of the family as well as the safety, protection, and physical and
emotional well-being of the child. The provision of a home environment free
from the negative effects of substance abuse is a necessary condition for the
safety, protection and physical and emotional well-being of the child.
Successful participation in a treatment program for substance abuse may be
considered in evaluating the home environment. . . . .”
      Section 300 sets forth several circumstances under which a child comes
within the jurisdiction of the juvenile court. The juvenile court may
adjudicate a child to be a dependent under section 300, subdivision (b)(1)
when “[t]he 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, or
the willful or negligent failure of the child‟s parent or guardian to adequately

                                        21
supervise or protect the child from the conduct of the custodian with whom
the child has been left, or by the willful or negligent failure of the parent or
guardian to provide the child with adequate food, clothing, shelter, or medical
treatment, or by the inability of the parent or guardian to provide regular
care for the child due to the parent‟s or guardian‟s mental illness,
developmental disability, or substance abuse.” (§ 300, italics added.)
      Proof of three elements is required to establish jurisdiction under
section 300: “„(1) neglectful conduct by the parent in one of the specified
forms; (2) causation; and (3) “serious physical harm or illness” to the [child],
or a “substantial risk” of such harm or illness.‟ (In re Rocco M. [(1991)] 1
Cal.App.4th [814,] 820.) The third element . . . effectively requires a showing
that at the time of the jurisdictional hearing the child is at substantial risk of
serious physical harm in the future (e.g., evidence showing a substantial risk
that past physical harm will reoccur). [Citations.]” (In re Savannah M.,
supra, 131 Cal.App.4th at pp.1395-1396, italics added.)
      Jurisdiction may be exercised “based on a prior incident of harm or a
current or future risk” of harm. (In re J.K. (2009) 174 Cal.App.4th 1426,
1435, fn. 5.) A court may exercise jurisdiction when the parent has a history
of substance abuse and the evidence shows that the substance abuse places a
child of tender years at risk of harm from the parents‟ inability to provide
regular care. (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216.)
“Although section 300 generally requires proof the child is subject to the
defined risk of harm at the time of the jurisdiction hearing [citations], the
court need not wait until a child is seriously abused or injured to assume
jurisdiction and take steps necessary to protect the child [citation].” (Id. at
pp. 1215-1216.) In making this determination, the court may consider
whether past events require the court‟s present protection if there is reason

                                        22
to believe that the parent will continue the conduct. (Id. at p. 1216.) Thus, it
is well-established that jurisdiction may be determined based on a showing
either that the child has suffered, or there is a substantial risk the child in
the future will suffer, serious physical harm or abuse. (In re Adam D. (2010)
183 Cal.App.4th 1250, 1261.) Past conduct may be probative of current (and
future) risk if there is reason to believe the conduct will continue. (In re
Rocco M., supra, 1 Cal.App.4th at p. 824.)
II.   Standard of review of motions to amend a petition
      Section 348 provides that the provisions of the Code of Civil Procedure
on variance and amendment of pleadings in civil actions apply in juvenile
dependency proceedings and petitions. Under these statutes (see Code Civ.
Proc., §§ 469-470), a court may allow amendments to conform to proof so long
as those amendments do not “mislead a party to his or her prejudice.” (In re
Andrew S. (2016) 2 Cal.App.5th 536, 544, fn. 4.)
      “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 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.]” (In re
Jessica C. (2001) 93 Cal.App.4th 1027, 1041-1042.) We review the juvenile
court‟s determination for abuse of discretion. (Trafton v. Youngblood (1968)
69 Cal.2d 17, 31.) The fundamental inquiry is whether the proposed



                                       23
amendment would “mislead a party to his or her prejudice.” (In re
Andrew S., supra, 2 Cal.App.5th 536, 544, fn. 4.)
III.   Additional facts
       At the jurisdictional hearing, all parties, including each parent, were
represented by counsel. The court admitted into evidence without objection
several extensive reports chronicling the parents‟ —and the child‟s—history,
including the parents‟ contact with the department the year prior to the
present contact (after which they left California for Washington), as well as
reports of the circumstances of the child‟s fall from the second story window
in October 2015, the parents‟ history and attitudes about use of marijuana,
their failures to take the child to his post-fall medical appointment, their
failures to take him to any physician in almost two years and to make sure he
obtained his childhood immunizations, the absence of any treatment for his
speech difficulties or potential autism spectrum disorder, Father‟s admissions
concerning the unsafe conditions in the apartment, and the failures of the
parents to follow the department‟s directive to enroll in child safety and
parenting classes. These facts were clearly within the personal knowledge of
each of the parents as they were facts concerning the parents‟ own actions
and failures to act.
       The evidence also included interviews with neighbors regarding
Father‟s extensive and common use of marijuana (contradicting his own
inconsistent statements to department interviewers), the neighbors‟
witnessing Father allowing the child to wander unsupervised through the
carport and on the driveway of the apartment building, where he was
exposed to danger from moving vehicles, and statements by the maternal
grandmother—who had a very low opinion of her daughter‟s devotion to the
child and commented on both parents‟ lack of attention to cleanliness in the

                                       24
places they and their child lived. The MAT Report had found the parents
lacked basic skills to appropriately interact with their child, and that the
parents lacked the knowledge of the steps required to care for the safety and
well-being of a child at this age and stage of his development. That report
took note of the parents‟ need of parenting and child safety instruction, and
their failure to attend any such classes up to the date of the report. The
report also noted that, prior to the fall, the child was living in an unsafe and
unsanitary apartment with multiple hazards.
      The police report documented that when its officers inspected the
apartment after the child‟s fall, they observed two chairs immediately
adjacent to the window, located so that the child could have fallen through
the window from either; a broken marijuana pipe and soiled diapers on the
living room floor; open knives within reach of the child on the bathroom
counter, and a marijuana apparatus in that sink.
      Further, the evidence was that the parents either denied, minimized, or
ignored the child‟s medical and safety needs. Given their failure to follow
through even when appointments had been scheduled, there was little
likelihood that they would actually attend the child safety and parenting
classes which were scheduled as of the time of the hearing.
      As noted ante, at the hearing the court learned from the DI that, based
on her investigation, she had multiple concerns for the safety of the child,
because of the parents‟ failure to participate in any parenting and counseling
classes, the parents‟ failure to take the child to the post-fall medical
appointment or to keep up with the child‟s immunizations, as well as their
failure to take the child to a pediatrician from his infancy. The DI testified
that “[the parents] have not gained the insight that the child needs



                                        25
appropriate supervision and also needs appropriate care that they need to
provide as parents.”
      At the conclusion of the jurisdictional hearing, counsel for the
department and counsel for the child each moved to amend the Petition to
conform to proof. Counsel for the department made a request to encompass
in an amended charge both the history of substance abuse and the lack of
appropriate parenting, which she argued interfered with the parents‟ ability
to provide regular care and supervision of the child, also arguing that “it is
premature to return the child to the parents‟ home until they have developed
sufficient parenting skills to keep the child safe.” Counsel for the child
focused on the failure of the parents to adequately supervise the child and
their failure to follow up with physicians “which places [the child] at risk of
serious harm or illness.” The court declined to grant leave to amend,
dismissed the Petition, and released the child to the custody of his parents.
IV.   The court’s ruling denying leave to amend
      The juvenile court abused its discretion in denying the motions to
amend the Petition according to proof.3 In ruling that “I‟m not inclined to



3      The Petition, as filed on December 10, 2015, set forth the following
allegations:
       Count b-1 alleged: “[Mother] . . . has a history of substance abuse and
is a current abuser of a marijuana which renders [Mother] incapable of
providing regular care for the child. On [November 23, 2015, Mother] had a
positive toxicology screen for marijuana. On [November 23, 2015] and on
prior occasions, [Mother] was under the influence of marijuana while the
child was in [Mother‟s] care and supervision. The child is of such young age
requiring constant care and supervision and [Mother‟s] substance abuse
interferes with providing regular care and supervision of the child.
[Father] . . . failed to protect the child when he knew of [Mother‟s] substance
abuse. [Mother‟s] substance abuse and [Father‟s] failure to protect the child
endanger the child‟s physical health and safety and create a detrimental
                                       26
amend the petition to conform to proof of anything at this time” (and in then
dismissing the petition), the court failed to acknowledge that the record was
replete with facts well-known to the parents, and that recognizing this
circumstance by granting leave to amend to conform to proof, would not have
misled the parents to their prejudice. Instead, granting the motion would
have given proper weight in this case to the strong policy of favoring such
amendments when the adverse party would not be prejudiced. Moreover, the
record contained additional facts, determined from other sources, contained
in the Jurisdiction/Disposition Report and disclosed to the parents prior to
the hearing, which support our conclusion that leave to amend was required.
(See, e.g., In re Jessica C, supra, 93 Cal.App.4th at pp. 1042-1043.)
      We therefore return the matter to the juvenile court to adjudicate the
matter once it grants the motions to amend the Petition.


home environment, placing the child at risk of serious physical harm, damage
and failure to protect.”
       Count b-2 alleged: “[Father] . . . has history of substance abuse and is
a current abuser of marijuana which renders [Father] incapable of providing
regular care for the child. On prior occasions, [Father] was under the
influence of marijuana while the child was in [Father‟s] care and supervision.
The child is of such young age requiring constant care and supervision and
[Father‟s] substance abuse interferes with providing regular care and
supervision of the child. [Mother] . . . failed to protect the child when she
knew of [Father‟s] substance abuse. [Father‟s] substance abuse and
[Mother‟s] failure to protect the child endanger the child‟s physical health
and safety and create a detrimental home environment, placing the child at
risk of serious physical harm, damage and failure to protect.”
       Count b-3 alleged: “On or about [October 10, 2015], [the child‟s
parents] created a detrimental and endangering home environment for the
child in that Law Enforcement [sic] found a drug pipe in the child‟s home and
within access of the child. Two knives were found in access to the child.
Such a detrimental and endangering home environment established for the
child by the parents endangers the child‟s physical health, safety and well
being and places the child at risk of serious physical harm and damage.”
                                       27
                                DISPOSITION
      The order dismissing the Petition is reversed. The court is to allow the
Petition to be amended and then hold a new jurisdictional hearing. The writ
of supersedeas issued on April 4, 2016, shall dissolve upon the finality of this
opinion as to this court.




                                            GOODMAN, J.*
We concur:


      ASHMANN-GERST, Acting P.J.


      HOFFSTADT, J.




*     Retired judge of the Los Angeles Superior Court assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
                                       28
Filed 2/21/17
                     CERTIFIED FOR PUBLICATION

       IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                      SECOND APPELLATE DISTRICT

                               DIVISION TWO


In re MARCUS C., JR., a Person           B270853
Coming Under the Juvenile Court          (Los Angeles County
Law.                                     Super. Ct. No. DK14579 )


LOS ANGELES COUNTY                       ORDER MODIFYING OPINION;
DEPARTMENT OF CHILDREN                   DENYING PETITION FOR
AND FAMILY SERVICES et al.,              REHEARING; AND CERTIFYING
                                         OPINION FOR PUBLICATION
       Plaintiffs and Appellants,
                                         [No Change in Judgment]
       v.

MARCUS C., SR, et al.,

       Defendants and Respondents.



THE COURT*

      It is ordered that the opinion filed herein on January 25, 2017, be
modified as follows:




*   ASHMANN-GERST, Acting P.J.       HOFFSTADT, J.           GOODMAN, J.†

† Retired judge of the Los Angeles Superior Court assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
      In the second paragraph on page 7, in the sentence beginning “They
also saw,” the words “two chairs” are deleted, and the words “a high chair and
a desk chair” are inserted in their place.

      In the final paragraph on page 15, the words “ The MAT Report” are
deleted and the words “The Jurisdiction/Disposition Report dated March 2,
2016,” are added.

      This modification makes no change in the judgment.

      Respondent C.S.‟s petition for rehearing is denied.

      The opinion in the above-entitled matter filed on January 25, 2017, was
not certified for publication in the Official Reports. For good cause it now
appears that the opinion should be published in the Official Reports and it is
so ordered.

      CERTIFIED FOR PUBLICATION.




                                      2
