Filed 2/10/15 In re William H. CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


In re WILLIAM H. et al., Persons Coming
Under the Juvenile Court Law.

MENDOCINO COUNTY HEALTH &
HUMAN SERVICES, CHILDREN AND
FAMILY SYSTEM OF CARE,                                              A142255

         Plaintiff and Respondent,                                  (Mendocino County
v.                                                                  Super. Ct. Nos.
                                                                    SC-UK-JV-SQ-14-1695901-001,
PAUL H.,                                                            SC-UK-JV-SQ-14-1696001-001)
         Defendant and Appellant.


         Appellant Paul H. (father) contests a juvenile court order establishing dependency
jurisdiction over his sons, William (born 2004) and Michael (born 2007). (Welf. & Inst.
Code, § 300, subds. (a), (b), (c).)1 The children’s mother does not appeal. Father contends
he was denied due process when the court allowed amendment of the petition to add an
allegation of physical abuse (§ 300, subd. (a)) and that the allegation was sustained
without sufficient evidence to support it. We shall affirm the order.
                                        Facts and Procedural History
         The parents were never married but lived together for many years. They separated
sometime around 2011 and father was awarded sole physical custody of William and



1
    All further section references are to this code except as noted.


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Michael.2 The parents continue to occupy the same rural property, which mother owns.
Mother lives in the house and father lives with the children in a mobile home located
about 50 to 75 yards from the house. The Mendocino County Health and Human
Services, Children and Family System of Care (the county) has received numerous
reports of neglect by both parents throughout the children’s lifetimes. Most pertinent here
are incidents occurring in 2013 and 2014.
       In September 2013, the police located “a large marijuana garden” in front of
father’s residence. Father was inside the mobile home and a man father later identified as
his “partner” and “guard dog” was in the garden with a loaded handgun and “metal
knuckles” is his pants pockets. The partner’s girlfriend was also in the garden. She was
found holding a glass methamphetamine pipe in her hand and admitted to recent
consumption. The garden contained 31 mature marijuana plants. Father told police the
plants would yield between 93 and 124 pounds of marijuana. Father had a physician’s
medical marijuana recommendation but it was expired. Also, the quantity of marijuana
exceeded medical marijuana limits. The police confiscated and destroyed the illegal
marijuana.
       The county investigated the family in November 2013 when the children came to
their psychological therapy sessions unwashed and wearing dirty clothes. A county social
worker, Timothy Turner, interviewed the children on November 14, 2013. Michael
reported that mother had, that week, kicked him in his “privates” and slapped and
punched William in the face “10 times.” William said mother “went psycho” but the
child “shut down” when asked for details. William said “Dad’s been really acting crazy
lately. If it was just beer, that’s one thing . . . [but] he’s smoking that white powder. . . .
Dad gets crazy when he smokes that stuff.”
       William said father once chased Michael around the yard with a running chain
saw. Michael was “screaming and crying for help.” The blade came within four inches of

2
  The parents have two other children: a minor daughter who lives with relatives and an
adult son. Mother has another adult son from a previous relationship. Our discussion here
is limited to William and Michael (collectively, the children).


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the boy’s back. William reported separate incidents in which father kicked Michael in the
crotch and spanked Michael on “his bare bottom, until Michael had red marks on his
behind and could not sit down.” When interviewed separately, Michael confirmed that his
father kicked him and chased him with a chain saw. Michael also showed Turner a
circular scar on his back, which he said was from father burning him on the back with a
cigarette “a long time ago.” Turner observed that the burn scar “appeared to be from
straight on contact and not a glancing burn from a child accidentally brushing against a
parent’s cigarette.” Both children reported strange men often “coming and going” at
home, even when his father was not there. William said he makes his own meals
(“sandwiches and stuff” in the microwave) and does his homework on his own. William
told Turner: “I’m glad you are here. I want someone to help my family.”
        Turner and police officers went to the children’s home following the interviews.
Father was not home when they arrived but “at least three other adult males [were]
present in the trailer home,” including a man who had been accused of indecent exposure
“in the presence of a mother and her baby.” Father returned home during the inspection.
Father said the man accused of indecent exposure was a new acquaintance and denied
any knowledge of his past. Turner cautioned father not to allow the man to be alone with
the children and father called the man over and told him to leave. Father said mother is
“bi-polar, schizophrenic, and [a] methamphetamine user.” He said the mother was
recently “5150’d” (detained for psychological observation) and had been living with a
boyfriend who beat her and William. Father said the judge who awarded him physical
custody of the children “instructed that the boys not be allowed to go to their mother’s
home as long as she was unstable and she allowed [her abusive boyfriend] to live with
her.”
        Father denied using methamphetamine. Father smokes cigarettes and marijuana
but denied burning Michael with a cigarette. Father denied kicking Michael but admitted
chasing him with a chainsaw, which father dismissed as “playing” with the child. Father
insisted that he and a live-in girlfriend care for the children’s needs. Turner decided to
monitor the situation rather than remove the children from home at that time.


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       Turner interviewed the children several days later, on November 18, 2013. The
man suspected of indecent exposure was still coming to the residence, according to
William. William said father was angry with the children for speaking to a social worker.
Turner went to see father at home on November 21, 2013, to ask him to take a drug test.
Father said he had to go to work but would submit to testing later in the day. Father did
not do as promised. Turner renewed his request for drug testing several days later, and
father submitted. He tested negative for all substances. The county closed the case but
warned father that more referrals could lead to court intervention. Father declined the
county’s offer of voluntary services.
       The county received additional referrals in January 2014. The children were at
mother’s home when she broke a window “during an angry outburst”; glass almost fell on
Williams, who was playing outside. In a separate incident, the police were called to
mother’s house when she refused to return Michael to father after a visit. The mother
“wav[ed] a large knife or sword over her head.” Another referral was received when
Michael reported that his nine-year-old cousin hit him in the crouch and the cousin also
dropped his pants and told Michael to touch the cousin’s penis. The incident occurred at
the cousin’s home, when the cousin’s mother was babysitting the children. The cousin’s
mother has a history with social services.
       In February 2014, Turner told father “the sheer number of referrals called into the
[child protective services] hotline was creating concerns in the community regarding the
safety of the children” and that father had to do a better job supervising the children.
Father agreed to keep the children safe and signed a “Family Safety Plan.” The plan
provided father “will not allow his sons to go to their mother’s home unsupervised”; “will
not allow people, who are strangers to the children, to reside or visit his home while the
boys are present”; “will not take [the children] to go to the home of [their cousin] because
the boys are not being supervised properly”; and “will contact Medi-Cal [to] complete
steps to have the boys’ Medi-Cal renewed so they can continue therapy.”
       The county received another referral in March 2014 when Michael came to school
wearing clothes smelling of cigarettes and cat urine and complaining of hunger. Turner


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interviewed the boys. Michael said he was “hungry a lot.” Michael said father
“sometimes brings home takeout” but does not consistently provide dinner. Michael said
the boys provide for themselves in the morning; they wake to an alarm, dress themselves,
and walk to the school bus. William said the children go to their mother’s house “all the
time” and were never told by father not to go. William also said the children recently
spent an entire weekend at his cousin’s house. Turner investigated if father renewed
Medi-Cal coverage and found that he had not, jeopardizing the boys’ continued access to
therapy.
       The county detained the children in protective custody and, on March 7, 2014,
filed a juvenile dependency petition (§ 300). The petition alleged the children suffered, or
were at substantial risk of suffering, serious physical harm as a result of the parents’
failure to protect the children, averring that mother has “chronic mental health illness that
severely impairs her ability to provide care” and father permits the children to “spend
time unsupervised at their mother’s residence even though they are unsafe in her care,”
permits the children “to be around transients and strangers that he allows to stay in his
home,” uses “inappropriate caregivers,” and does not provide adequate food and clothing.
(§ 300, subd. (b).) The petition further alleged the children are suffering serious
emotional damage (they exhibit symptoms of post-traumatic stress disorder) (§ 300, subd.
(c)), and that mother is incapacitated by mental illness and unable to provide for the
children’s support (§ 300, subd. (g)).
       A contested jurisdictional hearing was held over the course of two days in April
2014. Evidence was presented in the form of extensive county reports, letters from a
therapist who confirmed the children’s post-traumatic stress diagnoses, and the testimony
of father, social worker Turner and William’s school teacher. Father acknowledged that
mother’s behavior can be “bizarre” and “erratic” but insisted he did not allow the children
unsupervised visits with her after he signed the county safety plan, despite William’s
statement to the contrary. Father testified that only “close friends and family” stayed at
his home, and none presented a danger to his children. He denied failing to provide meals



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and clean clothes for his children and said that any animal odor on the children was from
sleeping with the family dog.
       A county report filed with the court related the children’s statements to Turner that
father chased Michael with a chain saw, burned the boy with a cigarette, and spanked him
on “his bare bottom, until Michael had red marks on his behind and could not sit down.”
On direct examination, Father’s attorney asked father if the statements were true. Father
said he never burned Michael, not even accidentally, and never spanked his children.
Father admitted “teasing” Michael with a chainsaw when the boy was about five years
old. Father testified: “I recall revving it up one time and teasing him a little bit like I was
going to get them and it scared him a bit.” Father said he “was hoping [Michael] was
going to grow out of being scared of the loud sound.” On cross-examination, the
children’s counsel asked father if it was “cruel” to chase a young child with a chain saw,
especially one with posttraumatic stress disorder. Father said it would be “scary for a kid”
but disagreed with the therapist’s diagnosis, saying it was “the first [time] I’ve heard her
make that statement.”
       At the close of evidence, children’s counsel asked to amend the petition to
conform to proof by adding allegations the children have suffered, or are at substantial
risk of suffering, serious physical harm inflicted nonaccidentally (§ 300, subd. (a)) and
that the children were subjected to an act of cruelty (§ 300, subd. (i)). (Code of Civ.
Proc., §§ 469-470.) County counsel joined in the request. Father’s attorney argued there
was an insufficient factual basis for allegations of physical abuse or cruelty, noting
father’s denials and questioning the reliability of young children’s recollections.
       The court stated: “The matter having been submitted, the court finds true by a
preponderance of the evidence added allegation [section 300, subdivision] (a), that the
children have suffered or are at substantial risk of suffering serious physical harm,
[inflicted] non-accidentally on them by their parents.” The court also found true the
previously pled allegations that the parents failed to protect their children (§ 300, subd.
(b)), the children are suffering serious emotional damage (§ 300, subd. (c)), and that
mother is incapacitated by mental illness and unable to provide for the children’s support


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(§ 300, subd. (g)). The court found that the last allegation concerning mother’s mental
illness, however, did not provide a reason to assert jurisdiction over the children as father
is the custodial parent. The court found insufficient evidence to support the newly
requested allegation of child cruelty (§ 300, subd. (i)). The court asserted jurisdiction
over the children under section 300, subdivisions (a), (b), and (c) and scheduled a
dispositional hearing.
       The dispositional hearing was held on May 27, 2014. The children were declared
dependents of the juvenile court and family reunification services ordered. The children
were placed with their paternal grandmother. Father timely filed a notice of appeal from
both the jurisdictional and dispositional orders but the only issues raised on appeal
concern jurisdiction.
                                          Discussion
       Father contends he was denied due process when the court allowed amendment of
the petition at the jurisdictional hearing to add an allegation of physical abuse (§ 300,
subd. (a)) and that the allegation was sustained without sufficient evidence to support it.
       The county argues we need not address these issues because dependency
jurisdiction is founded on several statutory grounds (§ 300, subds. (a), (b), (g)), only one
of which father contests (§ 300, subd. (a)). “When a dependency petition alleges multiple
grounds for its assertion that a minor comes within the dependency court’s jurisdiction, a
reviewing court can affirm the juvenile court’s finding of jurisdiction over the minor if
any one of the statutory bases for jurisdiction that are enumerated in the petition is
supported by substantial evidence. In such a case, the reviewing court need not consider
whether any or all of the other alleged statutory grounds for jurisdiction are supported by
the evidence.” (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) Father acknowledges
this principle but asks us to exercise our discretion to address the court’s jurisdictional
finding of physical abuse because that finding can impact the dependency proceedings.
“[W]e generally will exercise our discretion and reach the merits of a challenge to any
jurisdictional finding (1) that serves as the basis for dispositional orders that are also
challenged on appeal [citation]; [or] (2) could be prejudicial to the appellant or could


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potentially impact the current or future dependency proceedings.” (In re Drake W. (2012)
211 Cal.App.4th 754, 762.) A finding of physical abuse may have implications in this
dependency proceeding in the selection of appropriate reunification services, conditions
of visitation and an evaluation of whether the children can be safely returned to father.
Thus, we will review father’s appeal on the merits.
       Rules governing the amendment of pleadings in civil actions apply “to the same
extent and to the same effect” to the amendment of pleadings in juvenile dependency
proceedings. (§ 348.) A court may, “in furtherance of justice, and on any terms as may be
proper, allow a party to amend any pleading . . . .” (Code Civ. Proc., § 473, subd. (a)(1).)
Amendment is proper if the variance between the pleading and proof is not material
(Code Civ. Proc., § 470) and no variance is material “unless it has actually misled the
adverse party to his prejudice in maintaining his action or defense upon the merits.”
(Code Civ. Proc., § 469.)
       “[T]he ability to amend according to proof plays an important role in the overall
dependency scheme,” where dependency petitions are often drafted hastily upon
imperfect knowledge. (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1041.) Courts
“ ‘apply a policy of great liberality in permitting amendments . . . at any stage of the
proceedings’ ” provided “ ‘no prejudice is shown to the adverse party.’ ” (Atkinson v. Elk
Corp. (2003) 109 Cal.App.4th 739, 761.)
       As an initial matter, we note that father never objected to amendment of the
petition. His attorney argued only that there was an insufficient factual basis for the new
allegation of physical abuse, not that the amendment was a material variance from the
original pleading. “[A] parent’s failure to object or raise certain issues in the juvenile
court prevents the parent from presenting the issue to the appellate court.” (In re Lorenzo
C. (1997) 54 Cal.App.4th 1330, 1338.)
       In any event, amendment was proper. While physical abuse was not alleged as a
basis for jurisdiction in the original petition, detailed accounts of physical abuse were set
out in a county report submitted in support of the petition. The report related the
children’s statements that father chased Michael with a chain saw, burned the boy with a


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cigarette, kicked him, and excessively spanked him. Father testified about the incidents.
Father’s counsel introduced the issue on direct examination by asking father if the
statements were true and the children’s counsel asked additional questions. Where, as
here, “the issues raised by the proposed amendment were in fact fully tried and the
evidence is already before the court, it is difficult for the opposing party to claim
prejudice.” (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter
Group 2014) ¶ 12:394, p. 12-87, and cases cited therein.) No prejudice appears here,
where father had notice of the facts underlying the amendment in advance of the hearing
and examination of those facts was conducted at the hearing. The juvenile court did not
abuse its discretion in permitting amendment of the petition.
       Father next contends the juvenile court sustained the allegation of physical abuse
upon insufficient evidence. The court found that the children suffered, or were at
substantial risk of suffering, serious physical harm inflicted nonaccidentally by father
because father kicked, burned, and excessively spanked Michael. Those factual findings
are well-supported by the evidence.
       County social worker Turner reported interviews with the children in which
William said father kicked Michael in the crotch and spanked Michael on “his bare
bottom, until Michael had red marks on his behind and could not sit down.” Michael
confirmed that his father kicked him and showed Turner a circular scar on his back,
which he said was from father burning him on the back with a cigarette. Michael said “he
did not know whether his dad did this on purpose or not.” Turner observed that the burn
scar “appeared to be from straight on contact and not a glancing burn from a child
accidentally brushing against a parent’s cigarette.” Father argues that Turner retracted his
opinion that the burn was intentional when testifying at the jurisdictional hearing. The
referenced testimony is ambiguous but does not constitute a retraction. Turner testified,
concerning the burn mark, “[t]his was a small circular mark right directly between the
shoulder blades, and have I seen cigarette burns like that, scars, old ones that have
healed? I have. If it’s an accidental cigarette burn which I’ve also seen where a small
child runs across a parent holding one it’s more of a straight pin-like circle. And that’s


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what he had on him.” Father interprets Turner as saying Michael had a burn mark
consistent with a glancing, accidental burn, and not a circular mark consistent with direct
contact as Turner described the scar in his report. Father’s reading of the testimony is not
supported when the record is read as a whole. In testimony following the ambiguous
remarks, Turner said the burn was “a very circular mark” and accidental burnings “tend
to be a scraping or a brushing burn.” The testimony, read as a whole, indicates that
Turner’s report and testimony are consistent in opining that Michael was intentionally
burned. Moreover, the finding of physical abuse was not founded on this incident alone
and thus any ambiguity in Turner’s testimony does not undermine the court’s
jurisdictional finding.
                                        Disposition
       The jurisdictional and dispositional orders are affirmed.



                                                  _________________________
                                                  Pollak, Acting P. J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




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