Metropolitan News-Enterprise

 

Tuesday, October 23, 2018

 

Page 4

 

Court of Appeal:

Judge Lacked Authority to Bring His Own Allegations Against Father

 

By a MetNews Staff Writer

 

A Los Angeles Superior Court judge improperly assumed an advocacy role when he amended a dependency petition on his own motion to allege abuse by a father who had not been named as an offending parent by the Department of Children and Family Services, the Court of Appeal for this district has held.

Justice Luis A. Lavin of Div. Three penned the opinion, filed on Thursday and made public Friday. It reverses the jurisdictional finding by Judge Joshua D. Wayser.

The DCFS brought the dependency petition alleging that the mother of a girl, identified as “G.B.,” had failed to protect her from sexual abuse perpetrated by the mother’s boyfriend.

Trial Court Proceedings

Wayser found the department’s allegations untrue. He noted that the girl had recanted her statements that the mother’s boyfriend had abused her to her therapist, and appeared “practically giddy” in a video recording of the interview with the therapist.

He also cited the history of unsubstantiated allegations against the mother; the department had previously investigated but rejected three such claims before the present case.

Despite his finding, Wayser did not dismiss the petition, which had only alleged the abuse and the mother’s failure to protect the girl.

Wayser’s Allegations

The judge indicated his intent to sustain the following allegations:

“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 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.”

He continued:

“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.”

Jurisdiction Hearing

At a jurisdictional hearing addressing Wayser’s allegations, counsel for the father said:

“[W]ith the court being the factfinder, 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.”

Wayser responded:

“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 judge ultimately found that the father had not placed the girl at risk of serious psychological or physical harm, but that his alleged coercion had caused her emotional harm. He awarded sole custody to the mother.

The appeals court reversed the jurisdictional finding and the dispositional orders, remanding the matter to the Superior Court.

Dismissal Was Necessary

Lavin wrote:

“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….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.”

He continued:

“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.”

Due Process Violated

The jurist declared:

“[A] juvenile court lacks the authority to, on its own motion, initiate dependency proceedings against a parent….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….This is especially true when the social services agency opposes the 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.”

He added:

“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…small comfort to father.”

The case is In re G.B., 2018 S.O.S. 5111.

 

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