Filed 11/12/13 In re Julienne B. CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
In re Julienne B. et al., Persons Coming Under the Juvenile Court Law. B245265
(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, Ma rk 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, un der appointment by the Court of Appeal, for Defendant and Appellant, S.B.

_____________2 Alexis K.T. (Mother) and S.B. (Father), th e parents of 16-year-old Julienne B. and three other children, appeal fro m the juvenile court’s jurisd iction findings and disposition order declaring Julienne a dependent child of the court under Welf are and Institutions Code section 300, subdivision (c) (serious emotional damage), 1 removing the child from Father’s care and custody an d placing her with Mother u nder the supervision of the Los Angeles County Department of Children and Family Services (Department). The Department cross-appeals from the court’s dism issal of the sexual abuse allegations in the dependency petitio n under section 300, subdivisions (b) (failure to protect), (d) (sexual abuse) and (j) (abuse of sibling), and its dism issal of the petition as to Julienne’s 10-yearold sister J.B. We affirm the dismissal as to J.B., reverse the subdivision (c) jurisdiction findings and disposition order regarding Ju lienne and remand the matter for further proceedings in the juvenile court.
FACTUAL AND PROCED URAL BACKGROUND On February 3, 2012 the Department filed a depende ncy petition on behalf of Julienne, J.B. and their two brothers (one th en 16 years old, the other 15 months old), alleging Father had been se xually abusing Julienne since she was seven years old, including fondling her breasts, digitally penetr ating her vagina and forcibly raping her. The petition additionally allege d Mother knew of the sexual abuse and failed to protect Julienne. The Department alleged the ongoin g sexual abuse placed all four children at risk of serious harm under section 300, su bdivisions (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 he r older brother and
several of her friends and desc ribed 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 Welfar e and Institutions Code unless otherwise indicated.3 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 yo unger 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 abus e charges, explaining she was angry with Father, who was very strict a nd disapproved of her clothing, dating boys and use of social media late at night; she was also upset by the continuing argument s between Mother and Father about their increasingly desperate fina ncial situation following the failure of the family business (a donut shop). Mother repor ted 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 believe d Julienne was fabricating the sexual abuse allegations to force Father out of the home. Father described hims elf as a conservative, strict Asian parent and attributed Julienne’s fa lse 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 dete ntion report dated Febr uary 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 Co unty-University of Southern California Medical Center. The Department also submitte d 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 re port dated May 7, 2012, which attached a multidisciplinary assessment team (MAT) re port. 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.4 Julienne, called by Father, was the only witne ss at the hearing. She testified in chambers, yet again stating the abuse allegati ons were not true a nd insisting no one had coached her or encourag ed 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 gi rl who had been raped by her stepfather, which gave Julienne the idea of making the se xual abuse allegations that precipitated the dependency petitio n. She subsequently learned the co nsequences of her false allegations
were far more serious than she had an ticipated 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) count s. 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 ha d 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 Julienn e made during the forensic interview were not believable, noting her unem otional, 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 an d 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 seve re emotional damage, as evidenced by her5 severe anxiety and aggressive behavior toward Father, and that Father and Mother had failed to recognize the substan tial need for appropriate mental health care for Julienne. Accordingly, the court ordered the petition am ended to conform to proof to add a new section 300, subdivision (c), allegation and su stained the amended pe tition as to Julienne. The petition as to J.B. and the othe r two siblings was dismissed. At a contested disposition he aring 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 cas e 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 partic ipating in conjoint counseling with Julienne. Ju lienne’s counsel joined the Department’s recommendation
that Father not be allowed to return home at that time and th at family members engage in
both individual counseli ng and conjoint counse ling 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 Fa ther out of the house, it was “doing exactly what Julienne had planne d 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 conc erns that I think need to be addressed.” Accordingly, the court ordered Julienne re moved 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 addre ss case issues and conjoint counseling with Julienne. Father was ordered to particip ate in individual couns eling and conjoint counseling with Julienne, but not parenting class; his visitation with Julienne was to be monitored. The court additionally or dered family preservation services. 2

2 On October 8, 2013 the juvenile court te rminated the home-of-p arent-mother order and placed Julienne with both pa rents 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, subdiv ision (d), and 459.6 Father and Mother each filed timely notic es of appeal from the jurisdiction and disposition findings and orders under section 300, subdivision (c). The Department filed a cross-appeal challenging dismissal of th e 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 dependen cy petition as to J.B.
DISCUSSION
1. The Juvenile Court Acted Within Its Disc retion in Dismissing the Sexual Abuse Counts After Finding Julienne ’s Recantation Credible The Department’s reports and Dr. Jose ph-Hernandez’s forensic interview of Julienne, introduced into eviden ce 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 fr om the family home. As the Department argues, her statements regarding the alle ged sexual abuse were highly detailed and consistent over time whether she was speaking to friends, law enforcement officers, the social worker or forensic psychologist, a ll 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 explai ning why she had lied; the court found her recantation credible and accepted her testimony as true. It is not within our prov ince 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 th e dependency court r easonably could have assessed [the minor’s] credibility less favorably or that our c ourt 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 [appe llate 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 [revi ewing court neither reweighs
evidence nor reevaluates a witness’s cred ibility].) To be sure, if a witness’s testimony is ph ysically 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;7 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 im possibility that they are true, or their falsity must be appare nt without resorting to inferences or deductions’”’”]; see generally People v. Elliott (2012) 53 Cal.4th 5 35, 585 [“[u]nless it describes facts or events that are physica lly 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 sup port of the cross-appeal tends to impeach the credibility of Julienne’s denial of a ny 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 certainl y 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 dismi ss the sexual abuse counts was well within
its discretion. 3

3 The Department misstates somewhat the appropriate standard of review. The question before us is not whether substantia l 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 i ssue as a matter of law: When “‘the issue on appeal tu rns on a failure of proof at trial, the question for a reviewing court becomes whether the eviden ce compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the ques tion becomes whether the appellant’s evidence was (1) “uncontradict ed 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 whethe r 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 distinc tion within the substant ial evidence analysis depending on who has the burden of proof on a particular issue, which party prevailed on that issue and who appealed”].)8 2. The Juvenile Court Abused Its Disc retion by Amending the Petition To Conform to Proof Without Providing Mother and Fa ther Advance Notice and an Adequate Opportunity To Be Heard

a. Discussion regarding a secti on 300, subdivision (c), count Julienne completed her testimony on the seco nd day of the jurisdiction hearing. No party had any other evidence, and the court pronounced the evidence closed. Counsel for the Department urged the cour t to sustain the sexual abuse allegations notwithstanding Julienne’s co mplete recantation and insi stence that no abuse had occurred. Arguing next, Jennifer Lorson, co unsel 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 li es, then how do I prot ect 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. An d they get all detained again.” The solution Ms. Lorson proposed wa s to amend the petition to conform to proof to add a new subdivision (b) (failure to prot ect) or subdivision (c) (serious emotional damage) count. Responding to that suggesti on, the court asked how it would amend if it were to conclude from the videotaped forens ic interview and the MAT assessment that Julienne had “a serious emotional numbing a nd 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 parent s did not address the needs of Julienne adequately. 4 The court initially expressed skepticism, no ting “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 outco me, 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.)9 emphasizing she could not argue the sexual abus e counts should be sustained because her client’s position was to the contrary, agreed the family needed serv ices. “Julienne is adamant that it didn’t happen. I don’t thi nk anyone could say that they don’t need services and that there’s not something abus ive going on in this home, whether it’s sexual
abuse or some other kind of ab use. . . . 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 co urt 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 ch arge of sexual abuse to failure to address the emotional problems of the child required advance notic e to allow Father a nd Mother to present different evidence regarding what they did or did not do on that issue. After further argument, including the Depa rtment’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 allege d in the petition, the court tentatively concluded, “although not pled, the evidence amply shows that the parents failed to, in the wo rds of Welfare and Institutions Code section 300(c), to recognize that she was suffering from emotiona l injury eviden ced by anxiety and what I can only characterize as aggression toward ot hers, primarily her father, and that as a result of the parents failing to take steps to address that emotional damage, she was injured and so were her siblings.” 5 The court continued the jurisdiction hearing for 10 days to permit counsel to confer with thei r clients regarding its tentative decision.

5 Following the court’s tentative ruling, counsel for the Department reminded the court that a sustained section 300, subdivis ion (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 s ubstantial risk that the child10 At the continued jurisdiction hearing co unsel for Mother and Father argued the notice for the putative subdiv ision (c) count was inadequa te and the evidence as presented insufficient to demonstrate Ju lienne 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 confor m 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 clos e of evidence prejudiced Father and Mother by depriving them of fair notice and an opportunity to respond to the charge A juvenile court may ame nd a dependency petiti on to conform to the evidence received at the jurisdiction hearing to reme dy immaterial variances between the petition and proof. (§ 348; Code Civ. Proc., § 470.) However, materi al 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.4t h 683, 689.) “Given the haste with which petitions are sometimes drafted . . . , the ab ility to amend accordin g to proof plays an important role in the overall dependency sc heme. 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 allo w 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 favor ed, and should not be denied unless the pleading as drafted prior to the proposed am endment 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 th e proof offered at the jurisd ictional hearing is so great that the parent is denied constitutionally adeq uate 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.11 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 specifi c 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 substan tial 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, subdivi sion (a), that alleged the child had suffered serious physical harm inflicted nonaccidentall y by his mother could properly be amended to conform to the proof presented at the hear ing that the child faced a current substantial
risk of harm if returned to the mother’s custody. ( Id . at pp. 1644-1645.) 6 In Jessica C.,

supra, 93 Cal.App.4th 1027 the court held it was e rror for the juvenile court to refuse to permit an amendment that modified the desc ription of the sexual abuse by substituting the word “touching” fo r “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 th e dependency petiti on 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 Ca l.App.3d 475, 481 [“the juvenile court has discretion to pe rmit amendment of a juve nile 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 ha ve 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 he ld past infliction of serious physical harm was sufficient to establish juri sdiction under section 300, subdivision (a), whether or not there was also proof of a current ri sk of harm. (See In re David , at pp. 1641-1644.)12 Here, in contrast to the cited cases, it is impossible for us to reconcile the juvenile court’s radical change in the basis proffere d 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 petiti on was sustained. (See In re Wilford J . (2005) 131 Cal.App.4th 742, 751 [“a parent whos e 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 allega tions upon which the depr ivation 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.4t h 181, 188 [“[d]ue process requires that a parent is entitled to not ice that is reasonably calculated to apprise
him or her of the de pendency proceedi ngs 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 ju risdiction 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 ri ght to present evidence and to confront witnesses] .) Although Julienne’s mental health and possible emotional problems were discussed in the various re ports submitted by the Department, Mother and Father had no notice evidence should be presente d concerning (a) the nature and severity of any emotional damage she may be suffering; 7 (b) Father’s or Mother’s responsibility, if any, for the initial onset of such emotiona l damage; or (c) their responsibility, if any, for Julienne continuing to suffer emotional da mage because they minimized or denied the seriousness of it or refused to seek approp riate 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 emo tional damage, evidenced by severe anxiety, depression, withdrawal, or untow ard aggressive behavior toward self or others, as a result of the conduct of the parent or guardian . . . .”13 adjusted except for a deep f ear or dislike of one parent, the court lacks a basis for assuming jurisdiction under § 300, subd. (c), ev en 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 s ubdivision (c) seeks to protect against abusive
behavior that results in severe emotional da mage. We are not talking about run-of-themill flaws in our parenting styles—we are ta lking about abusive, neglectful and/or exploitive conduct toward a ch ild which causes any of the se rious 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 th e Department to support the juvenile court’s addition of a new subdivision (c) co unt after the close of evidence—condemned as a due process violation the very type of am endment to conform to proof at issue here: “[S]uppose a petition only alleges, under subdi vision (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 secti on 300, based on the idea that any child who would make such allegations, even if false, has obviousl y been subject to emotional abuse. Such a tactic would be nothing more than a cheap way to establish depe ndency without giving the parent adequate notice of dependency juri sdiction 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 serv ices to her and her parents, rather than a “cheap tactic.” Nonethel ess, 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 dir ected only to sexual abuse a llegations, should have been refused. Alternatively, the evidentiary portion of the heari ng should have been reopened to allow (after an appropriate continuance) Father and Mother to present evidence to refute the amended allegations.14 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.Ap p.4th 822, 833;
In re Janet T . (2001) 93 Cal.App.4th 377, 391.) Gi ven the procedural posture of the case—that is, the failure of the Department, Ju lienne or Mother and Fa ther 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 conclu sion 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 Julie nne’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 pende ncy 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 rema nd 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 Ju lienne are reversed and the ma tter remanded to the juvenile court for further proceedings not in consistent with this opinion.

PERLUSS, P. J.

We concur:

WOODS, J. ZELON, J.