In re G.B.

Filed 10/18/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE

In re G.B., a Person Coming B284833
Under the Juvenile Court Law.

LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. DK19559
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
CHARLES B.,
Defendant and Appellant;
VANESSA W.,
Defendant and Respondent;
G. B., a Minor, etc.,
Objector and Appellant.

APPEAL from orders of the Superior Court of Los Angeles
County, Joshua D. Wayser, Judge. Reversed and remanded.
Jesse McGowan, under appointment by the Court of
Appeal, for Defendant and Appellant.
Marissa Coffey, under appointment by the Court of Appeal,
for Objector and Appellant.
No Appearance for Plaintiff and Respondent.
Karen Green-Rose for Defendant and Respondent.
_______________________________________
 INTRODUCTION

The Department of Children and Family Services
(Department) filed a dependency petition on G.B.’s behalf,
alleging the child had been sexually abused by her mother’s
boyfriend, and that her mother, Vanessa W. (mother), had failed
to protect her from the boyfriend’s abuse. Charles B., G.B.’s
father (father), was not named as an offending parent in the
petition. After finding the allegations of sexual abuse and failure
to protect untrue, the juvenile court, on its own motion, added
three allegations against father for emotional abuse of the child
because it believed father had coached G.B. to lie about mother’s
and the boyfriend’s conduct. Those new allegations, however,
were based on facts and a legal theory not at issue in the original
petition. Father objected to the court amending the petition on its
own motion, and the Department and G.B. opposed the court
establishing dependency jurisdiction based on father’s conduct.
The court later sustained one of the allegations against father,
declared G.B. a dependent of the court, and terminated
dependency jurisdiction with a family law exit order granting
mother sole physical custody of the child.
Father and G.B. appeal from the court’s disposition orders.1
We conclude the court erred in establishing jurisdiction based on
a factual and legal theory not raised in the original petition. We
therefore reverse the disposition orders and the jurisdiction
finding as to father, vacate all orders issued after the disposition
hearing, and remand the matter for further proceedings in the
juvenile court.

1 The Department has not participated in this appeal.

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 FACTUAL AND PROCEDURAL BACKGROUND

1. The Family’s Background and Prior Referrals
In 2014, mother, father, and G.B. (then five years old) were
involved in a family court proceeding. The court in that case
issued a custody order awarding mother and father joint legal
and physical custody of G.B., with father having custody of the
child during alternating weekends and certain holidays, and
mother having custody of the child all other times.
Around the time of that family court proceeding, the
Department investigated mother on three occasions after
receiving referrals that she had physically and sexually abused
G.B. Each of those referrals was deemed inconclusive or
unfounded.
The first investigation occurred in February 2014, after
G.B. told father that mother had “tickled” G.B.’s private parts
and kissed G.B. using her tongue. The Department deemed the
referral inconclusive after G.B. admitted she made up the
allegation that mother had touched her inappropriately.
The Department investigated mother again in April 2014,
after G.B. returned from mother’s custody with a black eye. G.B.
initially told father’s girlfriend that she had been hit in the eye
with a toy car at school, but she later said that mother had struck
her face. When interviewed by one of the Department’s social
workers, G.B. admitted she had lied about mother striking her
face. G.B. claimed she made up the lie because father’s girlfriend
did not believe her original explanation. The Department deemed
the referral inconclusive based on G.B.’s admission that she had
lied about mother striking her face.
The Department investigated mother a third time in
January 2015, after G.B.’s 12-year-old male cousin reported that

3
G.B. had kissed him on the lips. G.B. told father’s girlfriend that
she had learned her behavior from mother, who allowed her to
watch pornographic movies. The Department deemed the referral
unfounded after G.B. told a social worker she is only allowed to
watch the Disney Channel and Nickelodeon at her mother’s
house, and that mother’s television has a lock on it that prevents
G.B. from watching other channels.
2. Initiation of the Underlying Proceedings
On August 1, 2016, the Department received a referral that
mother’s boyfriend had sexually abused G.B. The child reported
that sometime in June 2016, she was playing in mother’s living
room with the boyfriend. The boyfriend put G.B. on his lap,
rubbed his “private part” against G.B.’s body, touched her
“private part” with his hand over her clothing, and exposed his
penis to the child. G.B. described a second incident when she
stayed at a hotel near Disneyland with mother, the boyfriend, the
boyfriend’s ex-wife, and the boyfriend’s son. After the boyfriend
got out of the shower, he walked into the same room as G.B. with
his penis exposed through his towel. G.B. told the boyfriend that
she could see his penis, to which he responded “oh” and walked
away.
After reporting the alleged sexual abuse, G.B. started
seeing a therapist. During one interview, G.B. told the therapist
the alleged sexual abuse by mother’s boyfriend “ ‘did not
happen.’ ”
On September 21, 2016, the Department filed a dependency
petition on G.B.’s behalf, alleging mother’s boyfriend had sexually
abused G.B. on two occasions and that mother was aware of, and

4
failed to protect G.B. from, the boyfriend’s abuse. (Welf. & Inst.
Code2, § 300, subds. (b)(1) & (d).) The Department named father
as one of G.B.’s parents in the petition, but it did not allege he
had engaged in any wrongful conduct with respect to the child.
At the September 21, 2016 detention hearing, the court
found father was G.B.’s presumed parent, ordered G.B. detained
from mother’s custody, and awarded mother visits with the child
three days a week. The court expressed concern, however, that
the allegations in the petition were untrue, citing the family’s
“one-sided” history of making unsubstantiated allegations
against mother.
3. The Original Jurisdiction Hearing
On November 29, 2016, the court held a pre-trial
conference hearing. The court stated it had read the
Department’s jurisdiction and disposition report and watched a
video-recorded interview of G.B. conducted by the child’s
therapist. The court noted that during the interview, G.B.
appeared “very happy,” “bouncy,” and “practically giddy,” and she
admitted to the therapist that mother’s boyfriend never sexually
abused her. The court warned that if it concluded the allegations
against mother and her boyfriend were false, it would “amend[]
the petition to have the father be offending for calling in false
allegations” and issue a custody order giving “sole legal, sole
physical [custody] to the mother, with monitored visitation for
the father.”

2All undesignated statutory references are to the Welfare and
Institutions Code.

5
 On December 12, 2016, the court commenced the
jurisdiction hearing. Mother, G.B., and father testified, and the
court admitted into evidence the video-recording of G.B.’s
interview with her therapist, the transcript of that interview, the
Department’s reports, and a photograph of mother’s boyfriend.
The court issued its findings and orders without hearing
argument from the parties.3 After the evidentiary portion of the
hearing ended, the court found that “[t]he Department has
clearly not met its burden with respect to mother.” The court
explained that father was not credible and that G.B. could not be
“truth-qualified” because she “ha[d] been so abused by father.”
After reiterating that the evidence “does not support an
allegation against the mother,” the court released G.B. to mother
with father to have monitored visitation.
Although the court did not sustain the sexual abuse and
failure to protect allegations, the only allegations asserted in the
petition, it did not dismiss the petition. Instead, the court stated
it intended to sustain jurisdiction allegations against father
under section 300, subdivisions (a), (b), and (c), because it
believed father had coached G.B. to fabricate the accusations
against mother and her boyfriend.4 None of the parties asked the

3Although the court made oral findings at the December 12, 2016
hearing, it issued a written ruling the next day (December 13), which
the court stated was “intended to be controlling” over any inconsistent
oral findings made at the December 12 hearing.
4In its written ruling issued on December 13, 2016, the court stated it
was considering sustaining the following allegations against father:
“As to Sections 300(a) and (b), ‘Minor has suffered and is at
substantial risk of further suffering serious psychological harm as a
direct result of her Father coercing her to make false allegations as

6
court to assert allegations against father, and neither the
Department nor the court filed a new or amended petition
naming father as an offending parent. Father’s counsel objected
to the court asserting allegations against father. After
determining it had not given father sufficient notice to allow him
to contest the newly-crafted allegations against him, the court
continued the jurisdiction hearing to January 9, 2017.
4. Adjudication of the Allegations Against Father
On January 9, 2017, the court commenced a jurisdiction
hearing to address the allegations it had asserted against father.
Father’s counsel objected to the court adding allegations against
father on its own motion, arguing the court’s procedure violated
father’s due process rights: “[W]ith the court being the fact-
finder, as well as the moving party in terms of these new
allegations, I believe I am at a significant disadvantage to the
point where my client’s due process rights are infringed upon. [¶]
I don’t believe we could fairly proceed when we’re going against
the court; the very party, or the very—I don’t want to call the
court a party, but it feels like I’m going against the court as a
party in this case.”

part of a long running Family Law and custody dispute and her
Father is both unable to provide for the psychological well-being of
Minor and intentionally causing her well-being to suffer, leading to a
substantial risk of future substantial serious psychological harm.’
“As to Section 300(c), ‘Minor has suffered both serious emotional
damage and has a risk of future serious emotional damage, caused by
Father’s coercing Minor to make false allegations against Mother and
Boyfriend.’ ”

7
 The court rejected counsel’s argument, explaining it was
acting not as a party to the case but rather pursuant to its
“authority to amend according to proof and to find a non-
offending parent offending.” The court went on: “I’m considering
amending because of my concern that the father abused the
process of the court and that the father abused his child. … [¶] I
am faced with a situation where if I dismiss this action, there
would have been no way to protect the child. And I think that it’s
appropriate under the circumstances.” The court continued the
jurisdiction hearing so that it could review the file from the
family’s prior family law case.
When the jurisdiction hearing reconvened on February 14,
2017, father’s counsel again raised a due process objection to the
court’s decision to amend the petition on its own motion. The
court noted father’s objection and stated its actions were
authorized because it was acting in G.B.’s best interests.
After the court admitted into evidence one of the
Department’s last minute reports, it asked the Department’s
counsel if she wanted to add “anything further.” The
Department’s counsel replied she would “reserve rebuttal”
because “[i]t [didn’t] seem appropriate for [her] to begin.” The
court then noted the Department did not “really agree” with the
court’s decision to adjudicate allegations against father. Later
during the hearing, the Department and G.B.’s counsel argued
the court should dismiss the allegations against father because
there was insufficient evidence to sustain a finding that G.B.
faced a risk of suffering serious psychological or emotional harm
as a result of any coaching by father. The court continued the
jurisdiction hearing to allow the parties to submit additional
briefing on the allegations against father.

8
 On March 7, 2017, the court resumed the jurisdiction
hearing. The court issued its rulings and findings through a
written order. The court first concluded it was authorized to
amend the dependency petition on its own motion to include
allegations against father, even though he was a non-offending
parent under the original petition. The court noted that section
300.2, the purpose provision of the dependency statutory
scheme,5 and the provisions of the Code of Civil Procedure
incorporated by the Welfare and Institutions Code, which permit
amendments of pleadings to conform to proof so long as the
amendments do not mislead a party to its prejudice,6 authorized
it to “make a non-offending parent offending.” The court also
concluded father had not been misled or prejudiced by the
amendments to the petition because it provided him adequate
notice of, and the opportunity to argue against, the new
allegations.
The court then adjudicated its jurisdiction allegations. The
court dismissed the allegations under section 300, subdivisions
(a) and (b), concluding there was no evidence that father’s

5Section 300.2 provides in relevant part: “[T]he purpose of the
provisions of … 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.”
6 Section 348 provides in relevant part: “The provisions of Chapter 8
(commencing with Section 469) of Title 6 of Part 2 of the Code of Civil
Procedure relating to variance and amendment of pleadings in civil
actions shall apply to petitions and proceedings under this chapter, to
the same extent and with the same effect as if proceedings under this
chapter were civil actions.”

9
conduct had placed G.B. at a risk of serious psychological or
physical harm. The court sustained the allegation under section
300, subdivision (c), however, finding father had a history of
coaching G.B. to make false accusations against mother and that
father’s conduct had caused G.B. to suffer serious emotional
harm. Specifically, the court found G.B. struggled with anxiety,
could no longer “ ‘distinguish reality from fiction,’ ” and displayed
signs of emotional trauma by acting “giddy” while describing the
alleged assault by mother’s boyfriend during her forensic
interview.
5. Disposition and Termination of Dependency
Jurisdiction
On May 8, 2017, the court held a disposition hearing. The
court declared G.B. a dependent of the court, ordered her placed
in mother’s custody, and awarded father unmonitored visits with
the child on the weekends.
On November 15, 2017, the court terminated dependency
jurisdiction and issued a family law exit order.7 The court
granted mother and father joint legal custody of G.B., with
mother receiving sole physical custody of the child. The court
awarded father unmonitored visits with G.B. every Friday
evening to Saturday morning, with any additional visitation to be
negotiated by the parents.
Father and G.B. timely appealed from the court’s
disposition orders.

7We granted father’s request for judicial notice of the juvenile court’s
November 15, 2017 minute order as well as the court’s custody and
visitation orders issued that same date.

10
 DISCUSSION

Father8 contends the court erred when, after dismissing all
the allegations in the dependency petition, it crafted, added, and
adjudicated jurisdiction allegations against him based on a
factual and legal basis not at issue in the original petition. We
agree.
1. The court should have dismissed the petition once it
found all the allegations were unsubstantiated.
We begin by addressing whether the court could, on its own
motion, assert jurisdiction allegations against father based on a
factual and legal theory not at issue in the dependency petition
after it found the original allegations were unsubstantiated.
Because this issue involves statutory interpretation, our review is
de novo. (In re Nicholas E. (2015) 236 Cal.App.4th 458, 462.)
“The litigation of dependency cases follows the statutory
blueprint penned by our Legislature.” (In re Nicholas E., supra,
236 Cal.App.4th at p. 463.) Dependency proceedings begin with
the filing of a verified petition as described in section 332. If the
petition is not verified, it is subject to dismissal without
prejudice. (§ 333.) The discretion to file a section 300 petition
alleging that a child comes within the juvenile court’s dependency
jurisdiction belongs to the social worker, not the court. (See § 325;
Cal. Rules of Court, rule 5.520(a).) “ ‘ “ ‘ “[A] juvenile court is
vested with jurisdiction to make only those limited
determinations authorized by the legislative grant of those

8In her opening brief, G.B. joins in all of father’s arguments. For
brevity’s sake, we use father’s name only when referring to the parties
on appeal who challenge the court’s jurisdiction findings and
disposition orders.

11
special powers.” ’ ” ’ ” (In re David B. (2017) 12 Cal.App.5th 633,
645.)
The procedure the juvenile court must follow when
adjudicating a dependency petition at a contested jurisdiction
hearing is set forth in sections 356 and 358, as well as rule 5.684
of the California Rules of Court. (See In re Lauren P. (1996) 44
Cal.App.4th 763, 769.) These provisions provide for two possible
outcomes when the court adjudicates a dependency petition. If
the court finds the social services agency has proved by a
preponderance of the evidence some or all of the allegations of the
petition, it must proceed to a disposition hearing. (§§ 356, 358,
subd. (a); Cal. Rules of Court, rule 5.684(e).) But if, as in this
case, the court finds the social services agency has not proved by
a preponderance of the evidence any of the petition’s allegations,
the court usually must dismiss the petition, terminate any
detention orders relating to the petition, and order the child
returned to the custody of his or her parents. (§ 356; Cal. Rules of
Court, rule 5.684(g) [“If the court determines that the allegations
of the petition have not been proved by a preponderance of the
evidence, the court must dismiss the petition[,] terminate any
detention orders relating to the petition[,] … [and] order that the
child be returned to the physical custody of the parent or
guardian … .”].9)

9 If the social services agency requests dismissal of the petition over
the minor’s objection, the juvenile court may not dismiss the petition
unless it first determines that “ ‘dismissal is in the interests of justice
and the welfare of the minor.’ ” (See In re E.A. (2018) 24 Cal.App.5th
648, 664–665, quoting Allen M. v. Superior Court (1992) 6 Cal.App.4th
1069, 1071.) In making this determination, the court may consider the
“totality of the [family’s] circumstances,” including evidence that may
support exercising jurisdiction over the minor under a subdivision of

12
 At the December 12, 2016 contested jurisdiction hearing,
the court found the Department failed to prove by a
preponderance of the evidence the truth of all the allegations
asserted in the petition, allegations involving sexual abuse and
mother’s failure to protect the child from that abuse under
subdivisions (d) and (b) of section 300. When the court made its
findings, those were the only allegations in the petition. The
Department had not alleged father was an offending parent or
that his conduct in any way brought G.B. within the court’s
jurisdiction, and none of the parties had sought to amend the
petition to include allegations against father. Because the court
found that all the allegations in the petition were not true, the
court should have dismissed the petition, terminated its
detention orders, and returned G.B. to the custody of her parents
under the terms of the 2014 family court custody order that was
in place at the time the child’s dependency proceedings were
initiated. (§ 356; Cal. Rules of Court, rule 5.684(g).)
In reaching this conclusion, we do not mean to suggest that
a juvenile court may not amend a petition when the social

section 300 not alleged in the original petition. (See E.A., at p. 665; see
also id. at p. 665, fn. 10 [discussing section 348 and the provisions of
the Code of Civil Procedure on variance and amendment of pleadings
in explaining why a minor is allowed to present evidence relevant to
subdivisions of section 300 not pled in the original petition when
challenging an agency’s request to dismiss the petition].)
This rule does not apply in this case because G.B. never opposed
dismissing the petition after the court found the original allegations
were unsubstantiated. Instead, as we discussed in our factual
summary, G.B.’s counsel expressly opposed establishing dependency
jurisdiction based on conduct not alleged in the petition—i.e., father’s
conduct.

13
services agency has not proved the exact allegations of the
petition. Certainly, the court may amend the petition “to correct
or make more specific” the factual allegations that support the
basis for establishing jurisdiction “when the very nature of the
charge remains unchanged.” (In re Man J. (1983) 149 Cal.App.3d
475, 481.) Indeed, such amendments are favored in the
dependency context, in light of the “haste with which petitions
are sometimes drafted, and section 332’s statement that only a
‘concise statement of facts is required’ ... .” (In re Jessica C. (2001)
93 Cal.App.4th 1027, 1041–1042, fn. omitted (Jessica C.).) But
“[i]f a variance between pleading and proof … is so wide that it
would, in effect, violate due process to allow the amendment, the
court should, of course, refuse any such amendment.” (Id. at pp.
1041–1042.)
Jessica C. illustrates the type of amendment that is
appropriate in the dependency context. In Jessica C., the social
services agency filed a petition alleging the minor’s father had
“penetrated his daughter’s vagina with his penis,” but the child
later testified that her father had only “touched her vagina with
his penis … .” (Jessica C., supra, 93 Cal.App.4th at p. 1040.) The
juvenile court denied the agency’s request to amend the petition
by substituting “touching” for “penetrating.” (Ibid.) The reviewing
court reversed the juvenile court’s denial of the agency’s request
to amend the petition, holding the proposed amendment would
not have prejudiced the father since it involved conduct and legal
theories nearly identical to the original allegations. (Id. at p.
1042.) Specifically, the court reasoned: “Here, it cannot be
seriously maintained that [father] would possibly have prepared
his defense differently if the allegation had been that he had
‘touched’ his daughter’s vagina with his penis, as distinct from

14
‘penetrated.’ The basic allegation was there, and any variance
between ‘touching’ and ‘penetrating’ could not have misled him to
his detriment. Both allegations are heinous, and entail the
intimate violation of a child.” (Ibid.)
The court in this case, however, exceeded its authority to
amend the petition to conform to proof. Unlike in Jessica C., the
court’s amendments did not incorporate the same “basic
allegation” at issue in the original petition. Rather, the court’s
newly-added allegations completely changed the grounds for
establishing jurisdiction over G.B. Specifically, the court’s
allegations sought to establish jurisdiction over G.B. under a
different legal theory than the original allegations (emotional
abuse versus sexual abuse); they named father as an offending
parent even though he was non-offending in the original petition;
and they were based on a set of facts not at issue in the original
allegations (father’s alleged coaching of G.B. to fabricate
allegations against mother and her boyfriend versus the
boyfriend’s alleged sexual abuse and mother’s failure to protect
G.B. against that abuse).
In sum, the court had no statutory authority to amend the
petition to assert allegations against father based on a factual
and legal theory not at issue in the original petition. Because no
party had proposed any amendments to the petition before the
court found the original allegations were unsubstantiated, the
court should have dismissed the petition, terminated its
detention orders, and returned G.B. to her parents’ custody.

15
2. The court violated father’s due process right to a fair
trial when it crafted, asserted, and adjudicated
jurisdiction allegations against father.
The court’s actions in this case were improper for another
reason. By crafting, asserting, and adjudicating new allegations
against a non-offending parent based on a factual and legal
theory not at issue in the original petition, the court assumed two
roles: advocate and trier of fact. In doing so, the court deprived
father of his due process right to a fair trial before a disinterested
neutral.
A parent has a fundamental right to the “ ‘care, custody
and management of his or her children … [,]’ ” which is protected
by the due process clause of the United States Constitution. (In re
Kristin H. (1996) 46 Cal.App.4th 1635, 1661–1662; see also Lois
R. v. Superior Court (1971) 19 Cal.App.3d 895, 901 (Lois R.) [“The
parental right to have children and to the custody of those
children is included among the liberties protected by the due
process clause.”].) And in contested dependency proceedings, due
process “require[s] that ‘not only must there be actual fairness in
the hearing but there must be the appearance of justice.’
[Citations.]” (In re Jesse G. (2005) 128 Cal.App.4th 724, 729
(Jesse G.).) In such cases, “ ‘the parents are entitled to a fair
hearing with an impartial arbiter, both in fact and in reality, and
that means the provision of a referee who does not assume the
functions of [an] advocate.’ ” (In re Emily D. (2015) 234
Cal.App.4th 438, 445 (Emily D.).)
In a contested dependency proceeding, such as this one, the
social services agency assumes a role akin to the prosecutor in a
criminal or a juvenile delinquency proceeding. (See In re Ashley
M. (2003) 114 Cal.App.4th 1, 7, fn. 3; see also Scott v. County of

16
Los Angeles (1994) 27 Cal.App.4th 125, 135 [a child-welfare
agency is delegated “quasi-prosecutorial functions in connection
with proceedings under Welfare and Institutions Code section
300”].) In that role, the social services agency generally is
responsible for initiating dependency proceedings on a minor’s
behalf. (Ashley M., at p. 7, fn. 3; see also § 325; Cal. Rules of
Court, rule 5.520(a).) The social services agency also carries the
burden of proof on most issues in the proceedings, including
whether the child falls within the court’s jurisdiction and, if so,
whether the child should be removed from his or her parents’
custody. (Ashley M., at p. 7, fn. 3.)
The juvenile court, on the other hand, serves as an
impartial trier of fact. (See Emily D., supra, 234 Cal.App.4th at
pp. 445–446.) Specifically, the court is tasked with determining
whether the allegations in the dependency petition are true. (Id.
at p. 446; see also Cal. Rules of Court, rule 5.684(a) [“If the
parent or guardian denies the allegations of the petition, the
court must hold a contested hearing and determine whether the
allegations in the petition are true.”].) While the court may
perform some functions typically associated with those performed
by an advocating party, such as calling and questioning witnesses
(see Cal. Rules of Court, rule 5.684(b); Evid. Code, § 775), the
court’s authority to direct the initiation of dependency
proceedings or the filing of allegations against a parent is limited.
For example, under section 331,10 the court may be called
upon to review the social services agency’s decision not to initiate

10Section 331 provides: “When any person has applied to the social
worker, pursuant to Section 329, to commence juvenile court
proceedings and the social worker fails to file a petition within three
weeks after the application, the person may, within one month after
making the application, apply to the juvenile court to review the

17
dependency proceedings after the agency has received an
application from a third party requesting the agency to initiate
such proceedings. If the court concludes the agency erred in
refusing to initiate dependency proceedings, it may order the
agency to commence them. (§ 331.) In exercising its authority
under section 331, however, the court acts in a traditional judicial
role, adjudicating an actual controversy between adversarial
parties to determine whether the agency erred in refusing to
initiate dependency proceedings. (See In re M.C. (2011) 199
Cal.App.4th 784, 813–814 [when the court orders a social services
agency to initiate a dependency proceeding under § 331, it is
doing so pursuant to its authority to adjudicate actual
controversies between multiple parties].)
But a juvenile court lacks the authority to, on its own
motion, initiate dependency proceedings against a parent. (See
Cal. Rules of Court, rule 5.520(a) [“Except as provided in sections
331, 364, 604, 653.5, 654, and 655, the social worker or probation
officer has the sole discretion to file a petition under section 300
and 601.”].) The reason for this is obvious: when a court asserts
its own allegations, based on facts and legal theories not at issue
in the original petition, and later adjudicates those allegations, it
assumes the roles of both an advocate and the trier of fact,
thereby depriving parents of their right to a fair and impartial
arbiter. (See Jesse G., supra, 128 Cal.App.4th at p. 730 [a
parent’s right to due process is violated when the court assumes
the dual obligations of an advocate and a trier of fact].) This is
especially true when the social services agency opposes the

decision of the social worker, and the court may either affirm the
decision of the social worker or order him or her to commence juvenile
court proceedings.”

18
court’s proposed allegations, like the Department did in this case.
Under those circumstances, the court has, in essence, displaced
the social services agency and eliminated any distinction between
the roles of advocate and impartial arbiter.
The court in Lois R. aptly described the serious concern
that arises when a juvenile court acts as both advocate and trier
of fact: “It is not difficult to imagine the distress felt by a parent
who finds the hoped for impartial arbiter virtually presenting the
case for depriving him of custody. Statements in statutes and
case law to the effect that the court is to serve as a benevolent
parental figure interested only in the welfare of the child, even if
known, would be of small comfort.” (Lois R., supra, 19 Cal.App.3d
at p. 902.)
With these principles in mind, we conclude the court
violated father’s due process right to a fair trial when it crafted,
asserted, and then adjudicated allegations against him based on
a factual and legal theory not raised in the original dependency
petition and opposed by the Department. That the court gave
father notice and an opportunity to contest the allegations, or
that the court was motivated by a desire to protect the child, are,
as noted in Lois R., small comfort to father. Because the court
improperly assumed the dual role of advocate and trier of fact,
the court’s disposition orders and jurisdiction findings as to
father must be reversed for this additional reason. (See Jesse G.,
supra, 128 Cal.App.4th at p. 731 [when the juvenile court
improperly assumes the role of an advocate and the trier of fact
at the adjudication hearing, the error is reversible per se].)

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 DISPOSITION

The juvenile court’s jurisdiction finding as to father and its
disposition orders are reversed. All orders issued after the
disposition hearing are vacated. The matter is remanded for
further proceedings consistent with this opinion.

CERTIFIED FOR PUBLICATION

LAVIN, J.
WE CONCUR:

EDMON, P. J.

DHANIDINA, J.

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