Filed 2/17/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re EMILY D. et al., Persons Coming 

Under the Juvenile Court Law.

 B256783

 (Los Angeles County

 Super. Ct. No. DK03412)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff and Respondent,

v.

ELIZABETH D.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles County, Marilyn 

Mordetzky, Juvenile Court Referee. Affirmed.

Jesse McGowan, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Mark J. Saladino, County Counsel, and Peter Ferrera, Principal Deputy County 

Counsel, for Plaintiff and Respondent.

_______________________
2

Elizabeth D., the mother of Emily D., Michael D. and Heather C., appeals from 

the juvenile court’s May 21, 2014 jurisdiction findings and disposition orders declaring 

the children dependents of the juvenile court, removing them from Elizabeth’s care and 

custody and placing them with their respective fathers under the supervision of the Los 

Angeles County Department of Children and Family Services (Department). Elizabeth 

contends the juvenile court deprived her of her due process right to a fair trial by 

assuming the function of an advocate rather than an impartial tribunal; violated Welfare 

and Institutions Code section 3521by continuing the jurisdiction/disposition hearing 

without good cause; and violated section 350, subdivision (c), by improperly considering 

evidence submitted after the Department had presented its case-in-chief. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Detention of the Children

On November 27, 2013 the Department filed a dependency petition on behalf of 

Elizabeth’s three children, ages 10, eight and six, alleging Elizabeth had a history of 

substance abuse and had tested positive for methamphetamines and marijuana; the father 

of Heather (Allan C.) had abused marijuana; and the home Allan shared with Elizabeth

and the children was filthy and unsanitary. (§ 300, subd. (b).)

The detention report indicated previous referrals had been received in 2004 and 

2006 alleging drug use by Elizabeth.2 The instant intervention was triggered by an 

October 28, 2013 referral alleging Elizabeth was abusing methamphetamine and alcohol 

and had engaged in verbal altercations with Allan in front of the children. The 

Department first interviewed Elizabeth’s mother, who confirmed she had heard from 

others that Elizabeth was using methamphetamine and marijuana. The children had been 

visiting their grandmother for about a week but did not show signs of neglect. On 

 

1

Statutory references are to the Welfare and Institutions Code unless otherwise 

indicated.

2

The April 2006 referral alleged general neglect and drug use by Elizabeth. When 

investigated, the home was dirty and messy but was cleaned at the worker’s request. 

Elizabeth tested positive for marijuana but no other drugs. After she moved to the home 

of a maternal aunt, the investigation was closed because the situation had stabilized.
3

October 31, 2013 a social worker visited Elizabeth’s residence. The house was messy, 

and Elizabeth appeared as if she had just been awakened. Elizabeth denied using 

methamphetamine but admitted using marijuana, even though her medical license had 

expired. She agreed to submit to a drug test. In a separate interview Allan admitted he 

used marijuana because of injuries he had received in a car accident some years earlier but 

insisted he does not smoke in front of the children. 

On November 7, 2013 the Department received drug testing results for Elizabeth 

and Allan. Elizabeth had tested positive for methamphetamine (at an extremely high 

level), amphetamine and marijuana. Allan tested positive for marijuana. When 

confronted with the test results, Elizabeth again denied methamphetamine use but 

confided to the worker she had been sleeping with a neighbor who used 

methamphetamine and that her positive test may have resulted from those encounters, a 

proposition the worker rejected as “doubtful.” Allan said he was not aware Elizabeth had 

been using methamphetamine but agreed not to leave the children alone with her. 

Byron D., father of Emily and Michael, acknowledged Elizabeth had used drugs 

frequently when they were younger (including cocaine and heroin) but said he did not 

know about her current use. His wife, who had attended high school with Byron and 

Elizabeth, suspected Elizabeth was using methamphetamine because her face sometimes 

had blisters, a possible side effect of methamphetamine use. Elizabeth did not respond to 

telephone calls from the worker.

On November 22, 2013 the Department obtained a warrant authorizing removal of 

the children. The social workers serving the warrant found the house messy, with trash 

covering the floor and dishes piled in the sink, and smelling of marijuana. Allan told the 

workers he and Elizabeth had been sick and unable to clean; his odd behavior caused the 

workers to become concerned for their personal safety. When served with the warrant, 

Elizabeth became upset and screamed at the workers, claiming the children would be 

molested if they were put in a foster home. She also denied using methamphetamine and 

suggested someone had tampered with her drug test. The worker observed several 

blisters on Elizabeth’s face. Elizabeth told the workers the children were living with their 
4

maternal aunt and uncle, who, when contacted, agreed to keep the children pending the 

detention hearing. The children showed no physical signs of abuse.

At the November 27, 2013 detention hearing the juvenile court found a prima facie 

showing had been made the children were persons described by section 300 and ordered 

the children detained in the home of the maternal aunt. The court found Byron to be the 

presumed father of Emily and Michael and Allan to be the presumed father of Heather; 

the court ordered the Department to investigate whether the children could be released to 

their respective fathers. Elizabeth was ordered to have monitored visits; all parents were 

ordered to submit to random drug testing.

2. The Jurisdiction/Disposition Hearing

The jurisdiction/disposition hearing was originally scheduled for February 13, 

2014. The Department had not completed its investigation, however, in part because 

Elizabeth had failed to return the telephone calls of the investigator. Monitored visits had 

proceeded well between the children and Allan and Elizabeth. Elizabeth had tested 

negative for drugs on December 18, 2013 and January 8, 2014 but claimed she had been 

unable to produce a sample at a January 23, 2014 test. At the hearing the court ordered 

Elizabeth to respond to the investigator and the Department to report further on drug 

testing and to interview the family for a supplemental report. The matter was continued 

to March 20, 2014 for a contested jurisdiction hearing.

As described in an addendum report filed for the March 20, 2014 hearing, 

Elizabeth told the investigator her positive methamphetamine test had resulted from a 

one-time outing with her girlfriends. She also stated she had used marijuana to ease her 

social anxiety. She believed she did not need to enroll in a rehabilitation program and

suggested it would be a waste to pay for gas to attend sessions. Asked what services she 

would undertake to regain custody of her children, she answered, “They can just keep 

testing me I guess.” She also claimed the home was not as messy or dirty as reported 

previously and blamed a new puppy for the trash strewn on the floor. The report stated 

the Department had received no testing results for Elizabeth since the previous hearing. 

The court ordered Elizabeth to receive reunification services and transportation assistance 
5

for drug testing and continued the contested jurisdiction/disposition hearing to May 1, 

2014.

For a progress hearing on April 10, 2014, the Department reported Elizabeth had 

tested negative on March 20, 2014 but no other test results had been received. The 

Department recommended Elizabeth submit to further drug tests and to enter a drug 

rehabilitation program if she missed any tests, attend Narcotics Anonymous and enroll in 

individual therapy. The court agreed and ordered the Department to continue to provide 

Elizabeth with reunification services.

Although the jurisdiction/disposition hearing was reconvened on May 1, 2014, for 

reasons discussed off the record the hearing was continued until May 12, 2014; and the 

court ordered the Department to provide complete test results for the parents and to 

reassess Elizabeth and Allan’s home. In the addendum report prepared for the continued 

hearing, the Department listed tests results from March and April 2014, showing that 

Elizabeth had tested negative on March 5th, March 20th and April 23rd but failed to 

appear for an April 1st test. 

At the May 12, 2014 hearing the Department moved its reports into evidence and 

indicated it did not intend to introduce further evidence. Elizabeth’s counsel, Margaret 

Burks, moved to dismiss the petition pursuant to section 350, subdivision (c), arguing the 

Department had failed to meet its burden at trial because the evidence it relied upon for the 

drug abuse allegation was stale. Ms. Burks acknowledged Elizabeth had missed the 

April 1, 2014 test but asserted there was no current indication Elizabeth was using drugs. 

The court, which had previously ordered the Department to provide a complete set of drug 

tests, asked about the results of those tests; and Ms. Burks explained the Department had 

failed to produce all of the test results. Ms. Burks stated she was ready to proceed and that 

it was the Department’s burden to produce the relevant drug tests. After a discussion with 

the Department’s counsel, the court noted the record did not include tests from January and 

February 2014 and concluded it could not rule on the petition or on the section 350, 

subdivision (c), motion without complete information. The hearing was recessed to 

“second call” and ultimately continued to May 15, 2014. 
6

In a last-minute information submitted at some point on May 12, 2014, the 

Department reported Elizabeth had failed to submit to scheduled drug testing on five 

occasions: January 14 and 23, February 5, April 1 and May 5, 2014; and had submitted six 

negative tests: December 18, 2013, January 8, February 18, March 5, 20 and April 23, 

2014. On May 13, 2014 the Department assessed Elizabeth and Allan’s home and reported 

it had observed no evidence of drug use; the house was cleaner; and requested exterior 

improvements had been largely completed. 

The jurisdiction/disposition hearing resumed on May 15, 2014. Before taking 

additional argument on the section 350, subdivision (c), motion, the court allowed the 

Department to move into evidence the last-minute information dated May 12, 2014 that 

contained a complete summary of Elizabeth’s drug test results. The court then denied the 

motion, observing, “When the 350(c) was presented to the court, there was an issue for 

mother’s testing and that resulted in a supplemental report.” Responding to Ms. Burks’s

objection to the court’s consideration of the additional information, the court stated: “It is 

the . . . job [of the courts] to make sure that they have all the evidence before them to in 

fact determine whether this child is safe or not. Being that there is no explanation for 

mother’s missed tests, I need to hear from her or [be] presented other evidence.” 

After the motion was denied, Ms. Burks called Elizabeth to testify. Elizabeth 

acknowledged she had missed about five drug tests because of transportation difficulties or 

illness. She also admitted occasional methamphetamine use with her friends but denied 

she was addicted. She stated she had not used drugs (other than an occasional puff of 

marijuana) since January 2014 when she learned she was pregnant. 

After the completion of testimony (including that of Byron and Allan), the court 

stated it found Elizabeth had not been credible. The court sustained the allegation under 

section 300, subdivision (b), that Elizabeth’s drug used endangered the children’s physical 

health and safety, created a detrimental home environment and placed the children at risk 

of physical harm. The court dismissed the allegations relating to Allan’s marijuana use and 

the condition of the home. Proceeding to disposition, the court declared the children 
7

dependents of the court and removed them from Elizabeth’s custody. Heather was released 

to Allan’s custody; Emily and Michael were released to Byron’s custody. 

DISCUSSION

1. The Juvenile Court Did Not Violate Elizabeth’s Due Process Rights by 

Directing the Department To Supplement Its Evidence

In contested juvenile court proceedings, the due process clause of the Fourteenth 

Amendment requires that “‘not only must there be actual fairness in the hearing but there 

must be the appearance of justice.’” (In re Jesse G. (2005) 128 Cal.App.4th 724, 729

(Jesse G.), citing Gloria M. v. Superior Court (1971) 21 Cal.App.3d 525, 527

(Gloria M.).) “Where the [dependency] petition is contested, 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 advocate.” (Lois R. v. 

Superior Court (1971) 19 Cal.App.3d 895, 903 (Lois R.).)

Elizabeth contends the court’s request the Department supply missing drug test 

results—after the Department had rested its case-in-chief—violated her right to due 

process because the juvenile court improperly assumed the role of prosecutor and acted 

simultaneously as an advocate for the Department and a juvenile court referee. She relies 

in particular on the decisions cited above, in which the appellate courts have reversed 

orders of the juvenile court following hearings in which the referees had assumed a 

prosecutorial role in the questioning of witnesses. (See Lois R., supra, 19 Cal.App.3d at 

pp. 897-898 [finding violation of due process because referee questioned and crossexamined witnesses, as well as made and ruled on objections and motions during 

contested jurisdiction hearing]; Gloria M., supra, 21 Cal.App.3d at pp. 527-528 [referee 

violated parent’s right to due process by examining and cross-examining witnesses in 

absence of counsel for petitioner Department and then adjudicating jurisdiction]; cf. Jesse 

G., supra, 128 Cal.App.4th at p. 729 [finding referee’s questioning of parent of truant, in 

absence of the deputy district attorney, violated juvenile’s due process rights].)

Nothing in the instant record, however, is inconsistent with the proper role of a 

trial court in contested juvenile dependency proceedings. At the time Ms. Burks made 
8

the section 350, subdivision (c), motion, she advised the court the Department had failed 

to make available a complete set of Elizabeth’s drug test results, thus prompting the court 

to order the results be provided as soon as possible. The court’s action was consistent 

with its statutory mandate: “When ruling in dependency proceedings, the welfare of the 

minor is the paramount concern of the court. [Citation.] The purpose of these 

proceedings is not to punish the parent, but to protect the child. [Citation.] As a person, 

the child’s future is as vitally affected as is that of the parties competing for his or her 

custody. [Citation.] Consequently, a trial court should not restrict or prevent testimony 

on formalistic grounds. On the contrary, the court should avail itself of all evidence 

which might bear on the child’s best interest.” (Guadalupe A. v. Superior Court (1991) 

234 Cal.App.3d 100, 106 (Guadalupe A.); accord, In re B.D. (2007) 156 Cal.App.4th 

975, 983.) 

More specifically, in a contested jurisdictional hearing the court is charged with 

determining whether the allegations of the petition are true (Cal. Rules of Court, rule

5.684(a))3and, notwithstanding the broad language in the authorities cited by Elizabeth,

is authorized to question witnesses in accordance with Evidence Code section 775 (rule

5.684(b)). Under this provision the dependency court may call witnesses on its own 

motion “and interrogate them the same as if they had been produced by a party to the 

action, and the parties may object to the questions asked and the evidence adduced the 

same as if such witness were called and examined by an adverse party. Such witness 

may be cross-examined by all parties to the action in such order as the court directs.” 

(Evid. Code, § 775; see In re S.C. (2006) 138 Cal.App.4th 396, 423 [“[i]t is well within 

the province of the judge to ask a witness questions, particularly when the judge is the 

fact finder”]; see also rule 5.690(b) [in adjudicating disposition “court may require 

production of other relevant evidence on its own motion”].)

Elizabeth counters the court’s right to ask questions under Evidence Code 

section 775 is solely for “clarification purposes,” and she asserts that limited right may 

 

3 References to rule or rules are to the California Rules of Court.
9

not be subverted to authorize augmentation of the Department’s case-in-chief. Her 

reading of this section is unjustifiably narrow: “‘[I]t has been repeatedly held that if a 

judge desires to be further informed on certain points mentioned in the testimony it is 

entirely proper for him to ask proper questions for the purpose of developing all the facts 

in regard to them. Considerable latitude is allowed the judge in this respect as long as a 

fair trial is indicated [to both parties]. Courts are established to discover where lies the 

truth when issues are contested, and the final responsibility to see that justice is done rests 

with the judge.’” (People v. Carlucci (1979) 23 Cal.3d 249, 255 [discussing Evid. Code, 

§ 775’s codification of “traditional case law”] (Carlucci); accord, Conservatorship of 

Pamela J. (2005) 133 Cal.App.4th 807, 827 (Pamela J.).) As the Court of Appeal in 

Pamela J. explained, “‘It apparently cannot be repeated too often for the guidance of a 

part of the legal profession that a judge is not a mere umpire presiding over a contest of 

wits between professional opponents, but a judicial officer entrusted with the grave task 

of determining where justice lies under the law and the facts between the parties who 

have sought the protection of our courts. Within reasonable limits, it is not only the right 

but the duty of a trial judge to clearly bring out the facts so that the important functions of 

his office may be fairly and justly performed.’” (Pamela J., at p. 827.)4

In short, nothing about the court’s actions or statements suggests prejudgment of 

the facts or preexisting bias against Elizabeth; nor was there an appearance of unfairness. 

The court became aware that relevant evidence had been omitted from the case presented 

 

4

In Pamela J., supra, 133 Cal.App.4th 807 a patient (the conservatee) appealed a 

trial court ruling made in her absence that authorized her father to determine whether she 

would be given electroconvulsive treatment. The Court of Appeal reversed, deciding the 

relevant provisions of the Lanterman-Petris-Short Act (§ 5000 et seq.) required the 

patient’s presence at the hearing. (Pamela J., at p. 825.) Discussing Evidence Code 

section 775, the court rejected the reasoning of Lois R. and Gloria M. on the ground those 

cases had been decided before the Supreme Court’s decision in Carlucci. (Pamela J., at 

p. 826.) Allowing focused questioning by a trial court “aids in a ‘simplified and 

expeditious’ resolution of a capacity hearing unconstrained by the more stringent 

procedural requirements of a major civil trial . . . [and] benefits the interests of the patient 

as well as medical professionals, court and public.” (Id. at p. 828.) These policies are 

equally at play in juvenile dependency proceedings.
10

by the Department and asked the Department to supplement the record with a list of drug 

test results to provide the court with a clearer understanding of Elizabeth’s capacity to 

parent her three children. On this record the court did not overstep its role in adjudicating 

the petition.

2. The Juvenile Court Did Not Abuse Its Discretion in Continuing the Hearing

The juvenile court has the power to “control all proceedings during the hearings 

with a view to the expeditious and effective ascertainment of the jurisdictional facts and 

the ascertainment of all information relative to the present condition and future welfare of 

the person upon whose behalf the petition is brought.” (§ 350, subd. (a)(1); see Renee S. 

v. Superior Court (1999) 76 Cal.App.4th 187, 193.) Although continuances are 

discouraged in dependency cases (In re Giovanni F. (2010) 184 Cal.App.4th 594, 604), 

the juvenile court may continue a dependency hearing upon a showing of good cause, 

provided the continuance is not contrary to the interest of the child. (See § 352, subd. (a) 

[“[N]o continuance shall be granted that is contrary to the interest of the minor. In 

considering the minor’s interests, the court shall give substantial weight to a minor’s need 

for prompt resolution of his or her custody status, the need to provide children with stable 

environments, and the damage to a minor of prolonged temporary placements.”]; 

In re A.M. (2008) 164 Cal.App.4th 914, 925.) We review an order denying or granting a 

continuance for abuse of discretion. (See Giovanni F., at p. 605 [reviewing order 

denying continuance]; In re Mary B. (2013) 218 Cal.App.4th 1474, 1481 [reviewing 

order granting continuance] (Mary B.).) “To show abuse of discretion, the appellant must 

demonstrate the juvenile court exercised its discretion in an arbitrary, capricious or 

patently absurd manner that resulted in a miscarriage of justice.” (In re Joey G. (2012) 

206 Cal.App.4th 343, 346.)

Elizabeth contends the court erred as a matter of law by failing to identify on the 

record good cause for the continuance. Tellingly, she does not argue—and could not in 

good faith—the continuance was contrary to the children’s best interests. After the 

court’s inquiry about the remaining drug test results, the record reveals the matter was set 

aside for second call because of the court’s crowded docket. The hearing was ultimately 
11

reconvened three days later on May 15, 2014. Notwithstanding the court’s failure to 

make an express finding of good cause for the continuance, the record adequately reflects 

the court’s conclusion the test results constituted significant information necessary for its

determination whether jurisdiction over the children was supported by substantial 

evidence. (See, e.g., In re Andrea G. (1990) 221 Cal.App.3d 547, 554 [“ample” evidence 

supported implied finding and result “obvious from the record”].) Moreover, the modest 

three-day continuance did not result in a violation of the time limits contained in 

section 352, subdivision (b).5

In any event, Elizabeth has failed to show she was prejudiced by the continuance; 

hence, any error by the court was harmless. (In re Celine R. (2003) 31 Cal.4th 45, 60-61 

[applying harmless error standard to allegation trial court erroneously failed to appoint 

separate counsel for minor]; In re Angelique C. (2003) 113 Cal.App.4th 509, 523 [parent 

failed to demonstrate prejudice resulting from continuance of disposition hearing in 

violation of § 352, subd. (b)].)

3. There Was No Violation of Section 350, Subdivision (c)

Section 350 addresses the control and conduct of proceedings under section 300. 

As discussed, the juvenile court has the power to “control all proceedings during the 

hearings with a view to the expeditious and effective ascertainment of the jurisdictional 

 

5

Section 352, subdivision (b), contains two time limitations: 1) the court is 

required to make a finding of “exceptional circumstances” if the dispositional hearing is 

held beyond 60 days from the time the minor is removed from the parents’ custody; and 

2) “In no event shall the court grant continuances that would cause the hearing . . . to be 

completed more than six months after [the detention] hearing . . . .” In this case, the 

children were removed on November 27, 2013, and the 60 days expired February 26, 

2014. Whether “exceptional circumstances” were noted at the time is not before us, 

although the record indicates the Department’s investigation was delayed during that 

period because of Elizabeth’s failure to respond to the investigator. As to the second 

limitation, the continuation of the hearing for three days did not place the hearing outside 

the six-month period. (See also § 352, subd. (c) [“[i]n any case in which the parent, 

guardian, or minor is represented by counsel and no objection is made to an order 

continuing any hearing beyond the time limit within which the hearing is otherwise 

required to be held, the absence of such an objection shall be deemed a consent to the 

continuance”].)
12

facts and the ascertainment of all information relative to the present condition and future 

welfare of the person upon whose behalf the petition is brought.” (§ 350, subd. (a)(1).) 

Section 350, subdivision (c), which authorizes the motion to dismiss at issue here, 

provides: “At any hearing in which the probation department bears the burden of proof, 

after the presentation of evidence on behalf of the probation department and the minor 

has been closed, the court, on motion of the minor, parent, or guardian, or on its own 

motion, shall order whatever action the law requires of it if the court, upon weighing all 

of the evidence then before it, finds that the burden of proof has not been met.” This 

section “allows a parent to test the sufficiency of the [a]gency’s evidence before 

presenting his or her case” and “permits the court to dismiss the dependency petition 

when, upon weighing the evidence on behalf of the agency and the minor then before it, it 

finds that the burden of proof has not been met.” (In re Eric H. (1997) 54 Cal.App.4th 

955, 968-969 [comparing motion under § 350, subd. (c), to motion for nonsuit] (Eric H.; 

see In re Roberto C. (2012) 209 Cal.App.4th 1241, 1253 [motion to dismiss under § 350, 

subd. (c), resembles motion under Code Civ. Proc. § 631.8, which authorizes motion for 

nonsuit in a nonjury case in which bench officer is ultimate trier of fact]; accord, 

Mary B., supra, 218 Cal.App.4th at pp. 1479-1480.)

Elizabeth contends the juvenile court violated section 350, subdivision (c), by 

failing to rule on the motion before receiving additional evidence from the Department

addressing Elizabeth’s missing drug test results. More specifically, the question 

Elizabeth raises is whether the juvenile court could properly insist the Department 

produce the evidence it had previously ordered—evidence necessary to understand the 

current status of Elizabeth’s substance abuse problem—after a motion under section 350, 

subdivision (c), had been made. Given the mandate of the juvenile court in dependency 

proceedings to protect the children before it and its obligation to “avail itself of all 

evidence which might bear on the child’s best interest” (Guadalupe A., supra, 

234 Cal.App.3d at p. 106), we have no doubt the court here acted well within its 

discretion. (See generally In re A.S. (2011) 202 Cal.App.4th 237, 245-246 [“[t]he 

purpose of dependency law ‘is to provide maximum safety and protection’ for currently 
13

abused and neglected children and to ensure the safety of children at risk of harm,” 

quoting § 300.2].) 

In Guadalupe A. the juvenile court refused to allow Guadalupe’s counsel to 

present evidence before ruling on the parent’s motion to dismiss under section 350, 

subdivision (c), which, at the time, did not contemplate the consideration of any evidence 

other than that produced by the petitioning child welfare agency. The Court of Appeal 

reversed, concluding “the literal application of section 350, subdivision (c) . . . was 

inconsistent with the mandate to fully protect the interests of the minor.” (Guadalupe A.,

supra, 234 Cal.App.3d at p. 107.) “For this reason we conclude that section 350, 

subdivision (c) should be interpreted as permitting pertinent evidence offered by another 

party to be presented before the motion is ruled on.” (Guadalupe A., at p. 107; accord, 

In re Lauren P. (1996) 44 Cal.App.4th 763, 769.) 

In 1994 the Legislature amended section 350, subdivision (c), to specify a motion 

to dismiss may be brought “after the presentation of evidence on behalf of [the agency] 

and the minor has been closed . . . .” (Italics added.) Considering this amendment, the 

Fifth District Court of Appeal concluded, based on the maxim of statutory construction 

expression unius est exclusio alterius, section 350, subdivision (c), permitted only the 

agency or the minor to submit evidence in support of the petition and did not authorize a 

parent to do so before the court ruled on a motion to dismiss. (Eric H., supra,

54 Cal.App.4th at p. 965.) The court rejected the argument the court should consider any 

and all evidence in support of a dependency petition on the ground “the overburdened 

juvenile justice system would fail under such a rule.” (Id. at p. 966.)

The decision in Eric H., however, was limited to a parent’s role in supporting a 

dependency petition and does not address whether the juvenile court itself may, before 

ruling on the motion to dismiss, seek additional evidence from the Department. In

Mary B., supra, 218 Cal.App.4th 1474, on the other hand, the appellate court analogized 

a father’s motion for a directed verdict after the close of testimony at a contested sixmonth review hearing to a motion under section 350, subdivision (c), and held the 

juvenile court had not abused its discretion in continuing the hearing to allow the child’s 
14

counsel to confer with her client and the child’s caregiver and thereafter reopening the 

case and admitting into evidence a supplemental report from the child welfare agency: 

“Generally, the better practice is to consider all information bearing on the best interests

of a child.” (Mary B., at p. 1481.) As the court explained, “[T]he overriding issue was 

ensuring [the child’s] physical and emotional well-being.” (Id. at p. 1482.) 

Whether we construe the admission of the corrected drug test results as the 

product of a motion to reopen the Department’s case-in-chief or as a permissible sua 

sponte inquiry by the juvenile court to ensure the information in the record was complete, 

on this record there was no abuse of discretion. 

DISPOSITION

The orders of the juvenile court are affirmed.

PERLUSS, P. J.

We concur:

WOODS, J.

ZELON, J.