**Just a note amending to proof refers to if the proven facts on the record can sustain another claim that is not currently in the record the court can allow an amendment to proof to add another claim.
In re Ginger T.
This case deals with the issue of whether amendment to proof is factually necessitated and whether a petition for amendment to proof runs the risk of prejudicing the opposing party's case. Ginger T is an unpublished case but discusses amending to proof well. In re Marcus C is a case that deals with the specificity of amending to proof and the need for factually backing an amendment to proof.
The only allegation in Ginger T was a failure to thrive count. There was only one uncorroborated statement from a shelter worker that the child had a small stature. The worker at the time did not have any evidence beyond their statement. Parent’s counsel at the time had the option of asking for a continuance or going forward with the petition that day. Should parent’s counsel proceed that day, the department did not have a substantial case. The shelter worker did not have her credentials entered into the record. There were no formal medical records or doctor’s statements. At this point there are not enough records to sustain the petition or at least warrant removal. Should counsel decide to ask for a continuance, this allows the department to conduct a more in depth investigation which may reveal more information. In regards whether to file a 355 motion, the counsel for parent needs to be aware of the facts in record. In this case, the worker did not have her background in the record. Had she had been questioned, the worker may have opined that she did have several degrees and years of experience. Parent’s counsel went forward with the petition. Parent’s counsel needs to remember that DCFS has the burden of proof of proving up their case. The court did sustain the petition but did not remove the child be detained. On appeal the appellate court reversed the order citing that there was not enough evidence.
When parents are not there at detention and are not assigned counsel, county counsel often does not prepare as strong as a case. Depending on the facts of the case if the charges are relatively simple and do not include more in depth counts such as e counts or f counts, it may be wise to go forward with the petition. In the middle of trial, county counsel realized that their case was weak and asked the court to amend to proof. Parent’s counsel objected to amending to proof and raised the issue of due process and that parents need to be on notice on what the specific allegations are. The appellate court stated that the juvenile court may amend to proof the 300 petition to conform to the evidence received at the jurisdiction hearing to remedy immaterial variances between the 300 petition and proof. In re civ pro. The trial court did not amend the petition to proof and even if it had it was bound to reverse because the basis on which the petition was sustained was fundamentally different than the parental misconduct alleged. The allegation was failure to thrive but the other evidence proffered such as homelessness, purported DV, and a positive toxicology report were not central to the failure to thrive allegation. Parent’s counsel made the argument that it was not enough to warrant amendment to proof. Even if the judge is biased toward the department’s recommendations, it is important that the parent’s counsel make their objections and preserve them in the record. In this case the court of appeal noted the objections in a footnote.
In re Marcus C
This case is different from Ginger T as it deals with the appellate court reversing and remanding a dismissed petition over failure to amend to proof. In this case the minor had fallen from a window and sustained injuries. The court granted a stay of its decision and ordered that the minor be returned home. Minor’s counsel and county counsel raised objections asking the appellate court for a writ of supersedeas.
The appellate court on appeal stated that the trial court should have amended to proof. Because dependency issues are taken seriously with the protection of the child being the goal, amending to proof should be taken with the same serious intent.
There were a lot of concerns beyond the incident with Marcus C. The child was reported to have been obese, running into the street, and presenting with other serious concerns. This case is an example of needing to look at the facts and seeing whether the child was neglected or well taken care of. When considering amendments to proof the facts of the case need to be carefully examined. In re Ginger T would have been different if the child has been suffering from serious conditions or showing signs of serious neglect. There was also a lot of statements from collaterals. The trial court dismissed the petition on the grounds the only allegations were the marijuana allegations and the most recent drug tests were negative. The court of appeal voiced its concern in that the trial court failed to failed to acknowledge the fact that the record was replete with facts well known to the parents and recognizing the circumstance by granting the amendment to proof would not have misled parents to prejudice. By granting the amendment to proof would have given weight to the policy that favours such amendments when the adverse party would not be prejudiced. The record also contained additional information that the parents were on notice to before the hearing.
The fundamental issue with this case is whether a proposed amendment to proof would mislead the parent to their prejudice. In the case of Ginger T where the allegation was a failure to thrive count, but there were new allegations about mental health and DV this is problematic should experts need to be subpoenaed. These new facts had nothing to do with the original count of failure to thrive. However, in the case of Marcus C, the allegations would have been sustained regardless. Marcus C had serious issues that were linked to his overall well being. The drug use in his case led to the serious issue of his health and not being supervised. In Marcus C the parents were on notice in regards to the evidence and issues.
When considering these cases, it is important to consider is the child well cared for child. Does the evidence as a whole demonstrate that? Several key facts to note is was there due process? Were the parents misled by the petition? Have they been prejudiced? Is the amendment immaterial? The courts are not required to amend to proof but they are required to act to protect the child. It would help to say that “the court are required to protect child but the evidence shows that THIS child requires no protection. There is no evidence of abuse or neglect.” Use the record to build a foundation for that statement.
Juvenile Dependency and