California
Appeals

Issue Argument Forfeited by Failing to raise it Below-Juvenile Court -Sufficiency of  Juvenile Dependency Petition

A.                 Forfeiture

            First, Mother forfeited her argument by failing to raise it below.[12]  Although Mother argued at the July 11, 2007 hearing that the Agency should have prepared a new jurisdictional report with updated information about the risk of harm to David and that the Agency failed to demonstrate a current risk of harm at the hearing, those arguments addressed the sufficiency of the evidence produced in support of jurisdiction, not the sufficiency of the allegations in the petition.  Mother never specifically challenged the sufficiency of those allegations. 

            There is currently a split in authority about whether a challenge to the sufficiency of a juvenile dependency petition is forfeited if it was not raised in the juvenile court.  In In re Alysha S., the Third District observed that in civil actions an argument that a pleading fails to state a cause of action is not subject to forfeiture on this ground (Code Civ. Proc., § 430.80, subd. (a)), and concluded, without analysis, “The same rule obtains herein.”  (In re Alysha S. (1996) 51 Cal.App.4th 393, 397.)  Two years later, the Sixth District expressly disagreed with In re Alysha S on two grounds.  (In re Shelley J. (1998) 68 Cal.App.4th 322, 328-329.)  First, the court cited In re Jennifer R., which held, “Dependency proceedings in the juvenile court are special proceedings governed by their own rules and statutes.  [Citations.]  Unless otherwise specified, the requirements of the Civil Code and the Code of Civil Procedure do not apply.  (Jones T. v. Superior Court (1989) 215 Cal.App.3d 240, 245, fn. 3; In re Angela R. (1989) 212 Cal.App.3d 257, 273.”  (In re Jennifer R. (1993) 14 Cal.App.4th 704, 711, fn. omitted, quoted in In re Shelley J., at p. 328.)  Second, the court cited California Rules of Court, former rule 39, which provided that rules governing criminal cases and appeals applied to juvenile proceedings unless otherwise specified, and Penal Code section 1012, which provides that failure to demur to defective pleadings waives the defect.  (In re Shelley J., at p. 328.)  The Second District, Division Five, has agreed with In re Shelley J. and provided an additional reason for the forfeiture rule.  (In re James C. (2002) 104 Cal.App.4th 470, 481.)  After agreeing with In re Shelley J.’s reliance on In re Jennifer R., former rule 39, and Penal Code section 1012, the court in In re James C. cited section 348, which provides that one specific chapter of the Code of Civil Procedure relating to variances and amendments of pleadings applies to juvenile dependency proceedings.  (In re James C., at p. 481.)  The court stated that the fact that the incorporated chapter does not include Code of Civil Procedure section 430.80, cited in In re Alysha S., supports the conclusion that section 430.80 is inapplicable to juvenile dependency proceedings and that challenges to the sufficiency of a dependency petition are subject to forfeiture.  The Fourth District has also followed In re Shelley J., supra, 68 Cal.App.4th 322, citing practical reasons for enforcing forfeiture.  (In re S. O. (2002) 103 Cal.App.4th 453, 459-460; In re Jessica C. (2001) 93 Cal.App.4th 1027, 1038, fn. 8.)

            We agree with the holdings of In re Shelley J., supra, 68 Cal.App.4th 322, In re James C., supra, 104 Cal.App.4th 470, and In re S. O., supra, 103 Cal.App.4th 453, although the reasoning of the cases requires updating.  First, former rule 39 has been repealed.  (Historical Note, Deering’s Ann. Rules of Court (2006 supp.) foll. rule 39, p. 56 [former rule 39 repealed eff. Jan. 1, 2005].)  The current version of the rule does not contain the language cited in In re Shelley J. and In re James C.  (Rule 8.400; see Historical Notes, 2 Deering’s Ann. Rules of Court, (2007 ed.) foll. rule 8.400, p. 536 [originally adopted as rule 37 eff. Jan. 1, 2005]; Adv. Comm. com., Deering’s Ann. Rules of Court (2006 supp.) foll. rule 37, p. 35 [rule 37 principally restated subdivisions (a) - (b) and (e) - (g) of former rule 39]; Deering’s Ann. Rules of Court, rule 39, subd. (a) (2004 ed.) p. 430 [containing language cited in In re Shelley J., supra, 68 Cal.App.4th at p. 328 and In re James C., supra, 104 Cal.App.4th at p. 481].)

            Second, the holding in In re Jennifer R., supra, 14 Cal.App.4th at page 711─that the Civil Code and the Code of Civil Procedure do not apply to juvenile dependency proceedings unless specifically made applicable─has been rejected as an overstatement.  In In re Claudia E., the Fourth District, Division One (which decided both In re Jennifer R., and a case relied on therein, In re Angela R., supra, 212 Cal.App.3d 257) recently reconsidered the issue.  (In re Claudia E. (2008) 163 Cal.App.4th 627.)  The court concluded:  “[T]he better view is that application of a statute outside the Welfare and Institutions Code (and not expressly made applicable) is not necessarily barred from dependency proceedings.  Courts should determine whether the statute at issue is consistent with the overall purposes of the dependency system.”  (Id. at p. 636.)  The court distinguished or narrowly construed its earlier decisions.  (In re Claudia E., at pp. 636-637.)[13]  The court also distinguished an intervening Supreme Court case, which had held:  “Dependency proceedings in the juvenile court are special proceedings with their own set of rules, governed, in general, by the Welfare and Institutions Code.”  (In re Chantal S. (1996) 13 Cal.4th 196, 200, quoted in In re Claudia E., at pp. 634-635.)  The court explained:  “[T]he observation in Chantal S. . . . that dependency proceedings are governed by the Welfare and Institutions Code was expressly a general one, and the high court held only that a particular statute─Family Code section 3190─did not apply in dependency cases.”  (In re Claudia E., at p. 636.)  The Supreme Court found that application of the particular statute would produce results inconsistent with the purposes of dependency law.  (Ibid. [parenthetical to citation of In re Chantal S., at p. 207].)  

            The Third District also has rejected the broad holding in In re Jennifer R.  (In re Mark B. (2007) 149 Cal.App.4th 61, 78-79.)  Like the Fourth District, the Third District concluded that In re Chantal S., supra, 13 Cal.4th 196, merely stated a general rule and “did not hold that provision of other codes are inapplicable unless otherwise specified.”  (In re Mark B., at p. 78.)  In re Mark B. specifically holds that the provisions of part 1 of the Code of Civil Procedure (“Of Courts and Justice”) apply in juvenile dependency proceedings because they “provide for the fundamental empowerment of the courts, including the juvenile court.”  (Ibid.)  The court distinguished In re Chantal S., In re Jennifer R., supra, 14 Cal.App.4th 708, and In re Angela R., supra, 212 Cal.App.3d 257, because the statutes held inapplicable in those cases were from different parts of the Code of Civil Procedure.  (In re Mark B., at p. 78.)  In In re Angela R., for example, the statute at issue applied to civil “actions” governed by part 2 of the Code of Civil Procedure, whereas juvenile dependency cases are “special proceedings” governed by part 3 of the code.  (In re Mark B., at p. 78; In re Angela R., at p. 273; see also In re Chantal S., at p. 200 [“Dependency proceedings in the juvenile court are special proceedings with their own set of rules . . . ,” italics added].)

            We agree that a statute outside the Welfare and Institutions Code (that is not explicitly made inapplicable to dependency cases) applies in a dependency case if the statute applies to special proceedings such as juvenile dependency cases and if it is consistent with the overall purposes of the juvenile dependency system. 

            Applying this updated rationale, we conclude that Code of Civil Procedure section 430.80─which provides that challenges to the facial sufficiency of a petition are not forfeited by the party’s failure to raise the issue in the trial court─does not apply to juvenile dependency proceedings. 

            First, section 430.80 appears in part 2 of the Code of Civil Procedure, which applies to civil actions, not in part 3, which applies to special proceedings.  Thus, it does not even apply to juvenile dependency proceedings by its own terms.  Moreover, the Welfare and Institutions Code expressly incorporates one chapter of part 2 of the Code of Civil Procedure (chapter 8 of title 6 of part 2) and does not expressly incorporate section 430.80 or the chapter in which it appears, chapter 3 of title 6 of part 2.  (§ 348; In re James C., supra, 104 Cal.App.4th at p. 481.)  This omission supports our conclusion that section 430.80 does not apply to dependency proceedings.

            Second, the statute is inconsistent with the purposes of juvenile dependency law.  Allowing parties to challenge the facial sufficiency of a petition for the first time on appeal conflicts with the emphasis on expeditious processing of these cases so that children can achieve permanence and stability without unnecessary delay if reunification efforts fail.  (See In re Marilyn H. (1993) 5 Cal.4th 295, 307.)  Enforcing the forfeiture rule requires parties to raise such issues in the juvenile court where they can be promptly remedied without undue prejudice to the interests of any of the parties involved.  (See In re S.O., supra, 103 Cal.App.4th at pp. 459-460; In re Jessica C., supra, 93 Cal.App.4th at pp. 1038, fn. 8, 1041-1042.) 

            Had Mother raised her objection to the sufficiency of the petition at the July 11, 2007 hearing, the court could have allowed the Agency to amend the petition to conform to the proof offered at the hearing.  (§ 348; Code Civ. Proc., §§ 469-470.)  “[A]mendments 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., supra, 93 Cal.App.4th at pp. 1041-1042 [applying § 348].)  Only 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 her should a juvenile court properly refuse to allow an amendment to conform to proof or should a reviewing court entertain a challenge to the sufficiency of the petition that was not raised below.  (Ibid.; In re Shelley J., supra, 68 Cal.App.4th at pp. 328-329; see also In re Athena P. (2002) 103 Cal.App.4th 617, 627-628 [holding that in the absence of prejudicially inadequate notice of the allegations against her, the facial insufficiency of the petition is harmless error if the evidence presented at the hearing establishes jurisdiction].)  This was not such a case.

            Accordingly, we hold that section 430.80 does not apply and Mother forfeited her challenge to the facial sufficiency of the petition by failing to raise the issue below. In re David H. 8/19/08 CA1/5

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