Filed 11/12/13 In re Julienne B. CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN

In re Julienne B. et al., Persons Coming                             B245265
Under the Juvenile Court Law.
                                                                     (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 Los Angeles 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
                                                                 1
Code section 300, subdivision (c) (serious emotional damage), removing the child from
Father’s care and 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

1
       Statutory references are to the Welfare and Institutions Code unless otherwise
indicated.
                                              2
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.

                                              3
       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

                                             4
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.”
       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
                                                                          2
monitored. The court additionally ordered family preservation services.


2
       On October 8, 2013 the 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.
                                             5
       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. (In re Ana C. (2012)
204 Cal.App.4th 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 reversal”]; 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;
                                               6
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’”’”]; 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 conviction”].) 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
              3
its discretion.




3
        The Department misstates somewhat the appropriate standard of review. The
question before us is not whether substantial evidence supports the juvenile court’s
decision to dismiss the sexual abuse counts, as the Department contends, but whether the
evidence compels a finding in favor of the Department on this issue as a matter of law:
When “‘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.] Specifically, the question becomes whether the
appellant’s evidence was (1) “uncontradicted and unimpeached” and (2) “of such a
character and weight as to leave no room for a judicial determination that it was
insufficient to support a finding.”’” (Sonic Mfg. Technologies, Inc. v. AAE Systems, Inc.
(2011) 196 Cal.App.4th 456, 466; see generally Valero v. Board of Retirement of Tulare
County Employees’ Retirement Assoc. (2012) 205 Cal.App.4th 960, 965 [“[a]lthough the
issue on this appeal has been framed as whether there is substantial evidence in the record
to support the trial court’s conclusion that [employee] had not met his burden to show a
real and measurable connection between his psychiatric disability and his employment,
there is a conceptual and substantive distinction within the substantial evidence analysis
depending on who has the burden of proof on a particular issue, which party prevailed on
that issue and who appealed”].)
                                              7
       2. The Juvenile Court Abused Its Discretion by 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
            4
adequately.
       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

4
       Ultimately the court and counsel recognized that section 300, subdivision (b), does
not provide for jurisdiction based on emotional harm or damage. (In re Daisy H. (2011)
192 Cal.App.4th 713, 718.)
                                              8
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.”
       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
                                    5
injured and so were her siblings.” The court continued the jurisdiction hearing for 10
days to permit counsel to confer with their clients regarding its tentative decision.



5
       Following the court’s tentative ruling, counsel for the Department reminded the
court that a sustained section 300, subdivision (c), count did not provide a basis under
subdivision (j) for jurisdiction over the siblings. (See § 300, subd. (j) [court may adjudge
child a dependent of the court if “[t]he child’s sibling has been abused or neglected as
defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child
                                                 9
       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.” (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



will be abused or neglected, as defined in those subdivisions”]. The court acknowledged
the petition as to Julienne’s three siblings would be dismissed.
                                             10
her should a juvenile court properly refuse to allow an amendment to conform to
proof”].)
       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
                                                                           6
risk of harm if returned to the mother’s custody. (Id. at pp. 1644-1645.) In Jessica 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 unchanged”].)



6
        Although ruling it would have been permissible on the record before it to amend
the petition to conform to the proof presented of a current risk of substantial harm to the
child, the court in In re David H., supra, 165 Cal.App.4th 1626 held past infliction of
serious physical harm was sufficient to establish jurisdiction under section 300,
subdivision (a), whether or not there was also proof of a current risk of harm. (See In re
David, at pp. 1641-1644.)
                                              11
       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 allegations”]; 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
object”]; 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
                                                   7
of any emotional damage she may be suffering; (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-

7
       Section 300, subdivision (c), provides, in part, a child may be adjudged a
dependent child of the juvenile court if she “is suffering serious emotional damage, or is
at substantial risk of suffering serious emotional damage, evidenced by severe anxiety,
depression, withdrawal, or untoward aggressive behavior toward self or others, as a result
of the conduct of the parent or guardian . . . .”
                                              12
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.”].)
       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 emotional damage
under subdivision (c) 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 Jessica C. court that the amendment 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.



                                             13
           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.


                                             14
