In re Z.W. CA2/4

Filed 10/23/26 In re Z.W. CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR In re Z.W., Jr., a Person Coming B350059 Under the Juvenile Court Law. (Los Angeles County LOS ANGELES COUNTY Super. Ct. No. 17CCJP01669B) DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.P., Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Jennifer W. Baronoff, Judge. Affirmed. Panda Kroll, under appointment by the Court of Appeal, for Defendant and Appellant.  Dawyn R. Harrison, County Counsel, Jacklyn K. Louie, Assistant County Counsel, and Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent. ______________________________________________ Mother, D.P., appeals from jurisdiction and disposition orders concerning her son, Z.W., Jr. (age 9). Mother contends the juvenile court violated her due process rights by amending the operative petition to conform to proof at the jurisdictional hearing. Mother further argues the court erred in sustaining an allegation against her under Welfare and Institutions Code1 section 300, subdivision (a) (section 300(a)), which concerns the protection of children at risk of nonaccidental physical harm. We conclude the court did not violate mother’s due process rights, as the operative petition provided her with notice of the allegations upon which the amendment was based. We also affirm the jurisdictional finding made under section 300(a). FACTUAL AND PROCEDURAL BACKGROUND In 2017, when mother was 17 years old, the Los Angeles County Department of Children and Family Services (DCFS) received reports of mother having a “[Commercial Sexual Exploitation of Children] record” and frequently running away from foster care. There was concern that Z.W., Jr.’s father, nonparty Z.W., Sr. (father), was mother’s exploiter and pimp. Mother and father had a reported history of domestic violence in their relationship. Following a dependency case in San 1 All further undesignated statutory references are to the Welfare and Institutions Code. 2 Bernardino County in 2020, mother was awarded full custody of Z.W., Jr., and father was permitted to have supervised visits once a week. In late April 2025, Z.W., Jr. was living with his paternal grandfather. Paternal grandfather contacted DCFS and reported that he had agreed with mother and father to care for the child for a “few months” but the child had been in paternal grandfather’s care for the last three years. Paternal grandfather said the parents did not visit the child, and their whereabouts were unknown to paternal grandfather. According to paternal grandfather, he had relayed messages through his other children about Z.W., Jr. to father, but father responded he wanted nothing to do with Z.W., Jr. Paternal grandfather told a social worker that he ultimately “‘tricked’” mother into taking Z.W., Jr. by telling her he needed her to sign “guardianship documents” and leaving the child with her when he met her. Mother told paternal grandfather she could not care for Z.W., Jr. She did not have a place of her own and lived with friends. Paternal grandfather told mother to contact father so father could help take care of Z.W., Jr, as father had his own apartment. Mother did so, and she and Z.W., Jr. went to live with father. Paternal grandfather later told a social worker mother did not want Z.W., Jr. in her custody. He also expressed frustration with father and “knew something bad would happen” when the parents and child were together. About a week later, in early May 2025, mother called 911 because father was intoxicated and punched her. Mother told a social worker that father tried to have sex with her when she was going to sleep and became upset when she declined. Mother said 3 when father started hitting her, she defended herself and tried to get father off her. Z.W., Jr. witnessed the altercation and tried to “get in between them.” Mother reported father scratched the child while trying to move him. Police officers arrived and arrested father. They reportedly told mother that they could take Z.W., Jr. and her to a shelter, but she declined and went to stay with her mother until Z.W., Jr. was placed with his paternal aunt. Z.W., Jr. spoke with the social worker a week after the incident. He told the social worker that “he, mother, and father were laying down to go to bed.” Father got upset because mother did not want him to touch her. Z.W., Jr. said father punched mother and “mother was hitting father back. He stated he told them to stop and tried to get them to stop hitting each other.” The social worker tried calling father, but father refused to speak with the social worker after indicating he was unconcerned about the child’s welfare. In early July 2025, DCFS filed a petition pursuant to section 300(a) and 300(b). The petition alleged, “The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child’s parent or guardian” (count a-1). It also alleged, “The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness as a result of the failure or inability of his or her parent or legal guardian to supervise or protect the child adequately” (count b-1).2 2 As mother acknowledges, section 300(a) authorizes jurisdiction where the child has suffered or there is a substantial risk the child will suffer serious physical harm inflicted nonaccidentally by the child’s parent or guardian. Section 300(b), by contrast, provides that 4  The petition identified the same facts in support of counts a-1 and b-1: “On 05/02/2025, the child [Z.W.,] Jr.’s mother, [D.P.], and father, [Z.W.,] Sr, engaged in [a] violent altercation in the presence of the child. The father repeatedly struck the mother on the mother’s arm and ribs. The mother pushed and struck the father. The child intervened. The father grabbed the child’s arm, scratching the child. Such violent conduct on the part of the mother and father endangers the child’s physical health and safety . . . and places the child at risk of serious physical harm, damage, and danger.” The petition also alleged the parents’ unwillingness to care for Z.W., Jr. placed him at serious risk of harm (counts b-2 and b-3). In early August 2025, a dependency investigator “reviewed the language in count A1/B1 with [ ] mother,” and “she replied[,] ‘Yeah, that’s true.’” She said that domestic violence was ongoing during the parents’ relationship and that police were contacted about physical altercations between them on more than one occasion. Mother said that “sometimes she and [father] got along good but ‘a lot of times not, because [father] would always try to [ ] fight[ ]” her, at times in front of Z.W., Jr. In late August 2025, DCFS filed a first amended petition adding an allegation for father’s substance abuse, including alcohol consumption (count b-4). Counts a-1, b-1, b-2, and b-3 remained essentially the same. The original petition was dismissed. At the jurisdiction hearing, mother’s counsel requested the court strike her as an offending party from counts a-1 and b-1. Counsel argued that the counts alleged mother and father were jurisdiction may be assumed when there is a risk of even accidental harm. 5 “equal perpetrators of physical violence towards one another.” According to counsel, the evidence showed that while mother sometimes hit or pushed father, she acted in self-defense rather than initiating the violent conduct. The juvenile court announced it was amending counts a-1 and b-1 to conform to proof. The court stated it was “looking at the history,” including mother’s Commercial Sexual Exploitation of Children record, and found the wording of counts a-1 and b-1 did not accurately reflect that “this [was] truly a domestic violence relationship.” The court sustained counts a-1 and b-1 as amended by interlineation. At the beginning of the hearing, the petition alleged, “On 05/02/2025, the child [Z.W.,] Jr.’s mother, [D.P.], and father, [Z.W.,] Sr, engaged in a violent altercation in the presence of the child. The father repeatedly struck the mother on the mother’s arm and ribs. The mother pushed and struck the father and the child [Z.W.,] Jr. intervened. The father grabbed the child’s arm, scratching the child. Such violent conduct on the part of the mother and father endangers the child’s physical health and safety . . . .” The court did not alter the allegations describing the parents’ violence toward one another or the child: “On 05/02/2025, the child [Z.W.,] Jr.’s mother, [D.P.], and father, [Z.W.] Sr, engaged in a violent altercation in the presence of the child. The father repeatedly struck the mother on the mother’s arm and ribs. The mother pushed and struck the father and the child [Z.W.,] Jr. intervened. The father grabbed the child’s arm, scratching the child.” It modified the remainder of the allegation to say, “Such violent conduct on the part of the father against the mother, [and] the mother’s failure [and]/or inability to protect [Z.W., Jr.] from [father] endangers the child’s physical health and safety . . . .” 6 The court sustained counts b-3 and b-4 as pled and dismissed count b-2. The juvenile court declared Z.W., Jr. a dependent of the court, removed him from the parents’ custody, and ordered family reunification services. Mother appealed.3 DISCUSSION A. The Juvenile Court Did Not Err by Amending the Petition to Conform to Proof Mother argues the juvenile court violated her due process rights by amending counts a-1 and b-1 to conform to proof presented at the jurisdiction hearing. According to mother, the court erred when it modified the supporting facts to reflect father was the aggressor in the altercation in which Z.W., Jr. was injured. She argues she did not have sufficient time to respond to the allegation as amended. DCFS argues the operative petition gave mother notice “of the reasons why [it] believed Z.W.[, Jr.] was a child described by section 300” before and after the amendment according to proof. It further argues mother forfeited this issue, as she did not object or request a continuance to respond to the amendment in the juvenile court. Assuming the issue is not forfeited, mother’s contention lacks merit. 3 Mother acknowledges the findings establishing jurisdiction over Z.W., Jr. based on father’s conduct, which are not challenged on appeal, are sufficient to support dependency jurisdiction. Mother argues that we should review her claims because the findings based on her conduct are reportable for inclusion in the Child Abuse Central Index and serve as the basis for the dispositional orders against her. DCFS does not dispute mother’s claims. We exercise our discretion to reach the merits of mother’s appeal. (In re M.W. (2015) 238 Cal.App.4th 1444, 1452.) 7  “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.” (In re I.S. (2021) 67 Cal.App.5th 918, 927.) In fact, amendments to conform to proof are favored in dependency proceedings. (In re S.V. (2022) 86 Cal.App.5th 1036, 1048.) “However, ‘[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 . . . refuse any such amendment.’ [Citation.] Or, stated otherwise, amendments according to proof should not be denied ‘unless the pleading as drafted prior to the proposed amendment would have misled the adversarial party to its prejudice.’” (Ibid.) A juvenile court’s amendments to conform to proof are reviewed for abuse of discretion. (In re I.S., supra, 67 Cal.App.5th at p. 927.) We consider de novo whether mother’s due process rights were violated due to inadequate notice. (In re Mia M. (2022) 75 Cal.App.5th 792, 806.) Here, both DCFS’s original and first amended petition alleged mother failed to protect Z.W., Jr. during the May 2025 domestic violence incident. DCFS prepared each petition using Judicial Council form JV-121. In each petition, DCFS alleged the child came within the jurisdiction of the juvenile court under section 300(a) and 300(b)(1). Count b-1 in each petition alleged, “The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness as a result of the failure or inability of his or her parent or legal guardian to supervise or protect the child adequately.” The same facts—the description of the domestic violence incident—were set forth to support jurisdiction under both section 300(a) and 300(b)(1). Mother is therefore incorrect in asserting that before the 8 jurisdictional hearing “the petition did not allege failure to protect,” giving mother “no reason to develop a defense to it.” That the court amended the allegation to conform to proof that mother was less culpable than father in the domestic violence incident does not nullify the notice previously provided by the petitions. The variance between the pleading and proof was slight, and mother does not show she was misled by the amendment to her prejudice. Accordingly, the juvenile court did not err by amending counts a-1 and b-1 to conform to proof. B. Mother Does Not Show the Juvenile Court Erred in Making a Jurisdictional Finding Under Section 300(a) Mother argues that even if the failure to protect allegations support a jurisdictional finding against her under section 300(b)(1), they do not support a finding under section 300(a), which concerns putting a child at risk of nonaccidental physical harm. Mother did not make this argument in the juvenile court. She asserts that because she raises a “purely legal” issue, “it is cognizable on appeal regardless of any objection below.” Mother has forfeited this argument by failing to raise it adequately in the juvenile court. (In re Dakota S. (2000) 85 Cal.App.4th 494, 502.) Were we to consider it, mother does not provide sufficient authority to establish the juvenile court erred. The purpose of section 300 “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.” 9 (§ 300.2.) Section 300(a) “provides that jurisdiction may be assumed if the child has suffered, or there is a substantial risk the child will suffer, serious physical harm inflicted nonaccidentally by the child’s parent or guardian. ‘Nonaccidental’ generally means a parent or guardian ‘acted intentionally or willfully.’” (In re Cole L. (2021) 70 Cal.App.5th 591, 601 (Cole L.).) Exposing a child to domestic violence can risk the nonaccidental infliction of serious physical harm under section 300(a). (In re Giovanni F. (2010) 184 Cal.App.4th 594, 598–599.) Mother relies heavily upon Cole L. to argue that a section 300(a) finding cannot be made against a parent unless that parent perpetrates violence against the child. In Cole L., the parents engaged in one documented violent altercation while their two children slept in another room. The appellate court noted that under certain circumstances, domestic violence in the child’s immediate presence may support a jurisdictional finding under section 300(a). (In re Cole L., supra, 70 Cal.App.5th at p. 603.) “For example, if a father strikes an infant’s mother while she is holding the child or an older child intervenes during a fight to protect her mother from her father’s abuse, the risk of harm to the child may be properly viewed as nonaccidental.” (Ibid.) It also recognized a section 300(a) finding was appropriate where a father held the child while he choked the mother and the mother hit the father. (Ibid., citing In re M.M. (2015) 240 Cal.App.4th 703, 720.) In Cole L., however, the children were not immediately present when the parents fought. Thus, the court held there was no basis for section 300(a) jurisdiction. This case differs significantly from Cole L. Z.W., Jr. was not sleeping in another room while his parents engaged in a 10 single documented altercation. Like the child in the example described in Cole L. as supporting jurisdiction under section 300(a), Z.W., Jr. intervened during a fight between his parents. As Z.W., Jr. put it, he “told them to stop and tried to get them to stop hitting each other.” He became entangled in the altercation in which his parents hit one another. Further, the parents had an acknowledged history of fighting in Z.W., Jr.’s presence, and it is undisputed that Z.W., Jr. suffered injury. Cole L. does not compel the conclusion that the juvenile court erred in making the section 300(a) finding as a matter of law. We conclude the juvenile court had sufficient evidence to find mother placed Z.W., Jr. at risk of nonaccidental harm. (In re T.W. (2013) 214 Cal.App.4th 1154, 1161–1162 [we review jurisdictional findings for substantial evidence; in doing so, we view the evidence in the light most favorable to the juvenile court’s findings, drawing all inferences in favor of those findings, and disregard all contrary evidence].) 11  DISPOSITION The juvenile court’s order is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS MORI, J. We concur: ZUKIN, P. J. TAMZARIAN, J. 12