In re B.D. ( 2019 )

Filed 6/24/19 (unmodified opinion attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re B.D., a Person Coming Under the
Juvenile Court Law.
CONTRA COSTA CHILDREN AND
FAMILY SERVICES BUREAU,
Plaintiff and Respondent, A155254
v.
(Contra Costa County
J.D., Super. Ct. No. J1600108)
Defendant and Appellant.
In re B.D., a Person Coming Under the
Juvenile Court Law.
CONTRA COSTA CHILDREN AND
FAMILY SERVICES BUREAU,
Plaintiff and Respondent, A155571
v.
(Contra Costa County
G.D., Super. Ct. No. J1600108)
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed herein on May 24, 2019, be modified as follows:
1
1. In the first sentence of the first paragraph that continues in mid-sentence at
the top of page 3, the language reading “Minor was likely to be adopted by
Foster Parents J.M. and C.P.” shall be deleted and replaced with “Minor
was likely to be adopted by foster parents J.M. and C.P. (collectively,
Foster Parents)”;
2. In the first sentence of the first full paragraph on page 8, the language
reading “Minor was adoptable by foster parents J.M. and C.P (collectively,
Foster Parents)” shall be deleted and replaced with “Minor was adoptable
by Foster Parents”;
3. In the first sentence of footnote 8 on page 14, the language “Having granted
Mother’s C.C.P. section 909 motion, we” shall be deleted and replaced with
“We therefore”.
The modifications effect no change in the judgment.
Dated: June 24, 2019 _______________________________ Acting P. J.
A155254, A155571/In re B.D.
2
A155254, A155571/In re B.D.
Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Rebecca C. Hardie
Counsel:
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and
Appellant J.D.
First District Appellate Project, Jonathan Soglin and Louise E. Collari, under
appointment by the Court of Appeal, for Defendant and Appellant G.D.
Sharon L. Anderson, County Counsel, Lisa M. O’Connor, Deputy County Counsel for
Plaintiff and Respondent.
Leslie A. Barry, under appointment by the Court of Appeal, for Minor.
3
Filed 5/24/19 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re B.D., a Person Coming Under the
Juvenile Court Law.
CONTRA COSTA COUNTY
CHILDREN AND FAMILY SERVICES
BUREAU, A155254
Plaintiff and Respondent,
v. (Contra Costa County
J.D., Super. Ct. No. J1600108)
Defendant and Appellant.
In re B.D., a Person Coming Under the
Juvenile Court Law.
CONTRA COSTA COUNTY
CHILDREN AND FAMILY SERVICES
BUREAU, A155571
Plaintiff and Respondent,
(Contra Costa County
v. Super. Ct. No. J1600108)
G.D.,
Defendant and Appellant.
I. INTRODUCTION
In these consolidated appeals, G.D. (Mother) and J.D. (Father) (collectively,
Parents) appeal from an order and findings entered at a Welfare and Institutions Code1
1
Further unspecified statutory references are to the Welfare and Institutions Code.
1
section 366.26 hearing (.26 hearing) terminating their parental rights to eight-year-old
B.D. (Minor), adopting a permanent plan of adoption, and determining that Parents failed
to meet their burden of establishing the applicability of the beneficial parental
relationship exception under section 366.26, subdivision (c)(1)(B)(i). Also before us are
two motions, one from Mother asking us to take additional evidence on appeal pursuant
to Code of Civil Procedure section 909 (C.C.P. section 909 motion), and one from the
Contra Costa Children and Family Services Bureau (Bureau) asking us to strike Mother’s
C.C.P. section 909 motion. After the appeals and the accompanying motions were fully
briefed, the parties stipulated to reversal, jointly recognizing that, following the
termination of parental rights, “subsequent events [have] undermined the juvenile court’s
finding that [Minor] was likely to be adopted.”
We grant Mother’s C.C.P. section 909 motion, deny the Bureau’s motion to strike,
and reverse, holding as follows. First, this is one of those “rare and compelling case[s]”
(In re Zeth S. (2003) 31 Cal. 4th 396, 399 (Zeth S.)) “where postjudgment evidence stands
to completely undermine the legal underpinnings of the juvenile court’s judgment under
review, and all parties recognize as much[.]” (Id. at p. 413, fn. 11.) Second, although the
parties stipulate to reversal under Code of Civil Procedure section 128, subdivision (a)(8),
we decline to reverse on that basis. Because summary reversal by agreement of the
parties would mask an error of federal constitutional magnitude that warrants attention in
a reasoned opinion, we decide the case on the merits. Third, the Bureau violated section
366.22, subdivision (c)(1)(D), by withholding from the court information material to the
“preliminary assessment of the eligibility and commitment of any identified prospective
adoptive parent or legal guardian, particularly the caretaker[.]” We conclude that, for
Minor—who has joined Mother and Father in requesting reversal—this breach rises to
the level of a due process violation. We therefore will remand with directions that the
juvenile court conduct a new .26 hearing.
II. BACKGROUND
Barely a month after juvenile court Judge Rebecca Hardie permanently severed
the relationship between Minor and Parents in reliance on the Bureau’s recommended
2
finding that Minor was likely to be adopted by Foster Parents J.M. and C.P.—in whose
care the Bureau had consistently reported he was happy and thriving—Minor was
removed from Foster Parents’ home. During a neglect investigation concerning another
foster child in the home, the Bureau discovered that Minor had recently suffered physical
abuse. An investigator saw a bruise on Minor’s lip, and upon inquiry, learned that it had
been caused when J.M. threw an eraser at him, striking him hard enough to draw blood.
J.M.’s explanation of the incident was implausible, and Minor’s absence from school that
day suggested that Foster Parents kept him home to hide the injury.
But that was only a hint of things to come. In the course of a series of hearings on
Foster Parents’ objection to Minor’s detention, Judge Hardie learned that, in June 2017,
more than a year earlier, the Bureau had conducted a prior investigation of possible
sexual abuse of Minor in Foster Parents’ home (June 2017 Investigation), yet had failed
to disclose it to her prior to the .26 hearing. The social worker assigned to Minor’s case
at the time of both investigations testified that no sexual abuse of Minor was ever
confirmed, and that the basis for the June 2017 Investigation—a report “from someone
who knew [J.M.] from the past” alleging that he was a convicted rapist—was never
substantiated. When she prepared the required section 366.26 report (.26 Report),2 the
social worker testified, the Bureau had concluded there was “no danger” to Minor in
Foster Parents’ home and she considered the 2017 allegation of sexual abuse to be “old
news.”
According to the social worker, she never received a copy of the investigator’s
report and was told only that the investigation ended inconclusively. Beyond that, all she
knew about the inquiry was the end result: A safety plan was put in place designating
C.P. as the sole caregiver authorized to be alone in the home with Minor. When pressed
about why she never mentioned anything in the .26 Report about the June 2017
Investigation of possible abuse of minor in Foster Parents’ home or the safety plan, the
2
(See § 366.22, subd. (c)(1).) When we refer to the .26 Report, we mean the .26
Report as originally filed in this case on May 9, 2018 and as updated in an Addendum
filed on August 8, 2018, the day of the .26 hearing.
3
social worker testified that she had produced her case notes to all parties in discovery,
and that those case notes referenced both the investigation and the safety plan.
But never mentioned in the case notes or in the .26 Report was evidence of the
following, based on detailed interview summaries in the Penal Code section 11166
investigation report that the Bureau prepared in 2017 (2017 Investigation Report)3:
(1) J.M. had spent seven years in state prison for a home invasion burglary; (2) J.M. has
three adult sons, J.M. Jr., N.M., and T.M., and as juveniles the sons had not only been
victims of sexual abuse, but each was alleged to have committed sexual offenses against
other juveniles; (3) all three were declared to be wards and placed in a group home for
rehabilitation; (4) according to Minor, at least one of the three sons, T.M., was living in
Foster Parents’ home while Minor was in their care; and (5) R.S., J.M.’s adult nephew,
had been sharing a bedroom with Minor.4 Additional details emerged in the testimony,
including the fact that while he was incarcerated, J.M.’s parental rights to his sons were
terminated. In addition, the social worker admitted that, going as far back as 2016, she
was aware of J.M.’s criminal and child welfare history, but saw no need to mention these
things because J.M. and C.P. were licensed foster care providers.
3
The Bureau lodged the 2017 Investigation Report with Judge Hardie at an
October 19, 2018 hearing and, when the social worker testified on October 31, 2018, she
brought with her and provided to Judge Hardie copies of excerpts of her case notes
referring to the June 2017 Investigation. Thus, the court had before it detailed
investigative information generated by the June 2017 Investigation as well as copies of
the 2017 case notes that the social worker testified she produced in discovery.
4
Because of the many indications that individuals who were either sex offenders
or had been victims of sex offenses were or may have been spending time around Minor
while J.M. and C.P. were caring for him, the composition of the residents in Foster
Parents’ home was a major focus of the June 2017 Investigation. To address concerns
raised by the issue of who, exactly, was living in Foster Parents’ home and the sleeping
arrangements there, the safety plan implemented for Foster Parents in 2017 required them
to commit that they would not allow any other adult besides themselves, or anyone who
was not specifically designated in their Resource Family Approval certificate, to live in
their home, and prohibited Minor from sharing a bedroom with any adult. The safety
plan also designated C.P. as the “responsible party” to provide care and supervision of
Minor.
4
At the hearing on October 19, 2018, Judge Hardie reviewed a summary memo
from the Bureau describing the June 2017 Investigation, along with copies of detailed
investigative narratives and juvenile delinquency records relating to J.M.’s three sons.
She was furious, and let it be known: “I have to say folks, that I am truly shocked by
what [is] set forth in this memo for today, and, quite frankly, . . . there’s going to be some
followup proceedings with the [Bureau] for the failure to advise the Court and Counsel of
the prior investigation prior to termination of parental rights. [¶] It’s in my view
unconscionable that that information was not provided to the Court and to Counsel.”
Judge Hardie asked for the identities of every individual at the Bureau all the way up the
supervisory chain above the social worker on Minor’s case, continued the hearing, and
directed that “I’d like all those individuals and representatives present in court at the next
hearing.”
Extensive testimony taken at hearings on October 31 and December 5, 2018
confirmed that, as of September 2018, Foster Parents were not only violating their safety
plan—and thus putting Minor at risk of sexual abuse—but also that physical abuse of him
by others in the home had been ongoing for some time. Judge Hardie summed up her
evaluation of the situation as follows: “I proceeded in [Minor’s] case with termination of
parental rights because he was in a home with committed caregivers who wanted to adopt
him. . . . [¶] . . . [¶] [But] in looking at the whole picture [now], . . . it is very concerning
to me . . . [¶] It’s clear to me that both [C.P.] and [J.M.] were well aware of the sexually
acting out behaviors of the three, now young men, boys at the time, and yet permitted
them to be in the household. It’s also concerning to me that . . . [the nephew, R.S.,] was
allowed to share the room with [Minor], because [R.S.] says he was sexually abused as a
child. . . . [¶] If you look at [Minor’s] reports, he also goes on to say that he was hit by
several people in the household and he was afraid of them.”
The Bureau apologized and accepted responsibility for the incomplete .26 Report,
explaining to Judge Hardie that its “normal practice” for inquiring into allegations of
abuse in an out-of-home foster placement was to keep the confidential investigative
material siloed within the investigatory unit so as not to “cross-contaminate” the foster
5
placement—a policy it acknowledged was flawed, as evidenced here, because the
investigation report itself “was never given to the case carrying social worker or
supervisor.” The Bureau offered reassurances that this policy was being changed, that
there would be specific instructions that social workers must include in .26 reports going
forward any reports of prior abuse investigations concerning prospective adoptive
parents, and that the situation here would never occur again.
Ultimately, Judge Hardie accepted the Bureau’s explanation of what happened, but
she did not mince words about the situation in which it placed the court. The June 2017
Investigation “should have been reported to the Court and it should have been reported to
minor’s counsel,” she said. “[P]eople wonder why there are headlines about the foster
care system and about judges who make decisions and child welfare services. This is fuel
for the fire. . . . [A] judge cannot make smart, appropriate orders and decisions about a
child’s care without having all the information. And I don’t appreciate being treated like
a rubber stamp” based on someone’s belief “that I don’t need [this type of] . . .
information and that I should make these orders because you say so. That’s not how it
works.”
At the conclusion of the December 5 hearing, Judge Hardie refused to return
Minor to Foster Parents’ custody, and was even more definitive than she had been earlier,
finding as follows: “I do find well beyond preponderance of the evidence, I find by clear
and convincing evidence that removal is in [Minor’s] best interest[,] and therefore, I
uphold the decision of the [Bureau] and deny the request for return of the child.” She
closed the hearing with another pointed admonition directed to the Bureau: “[H]ow on
Earth does [the Bureau] approve for placement a home in which a person’s own parental
rights have been terminated, he’s been sentenced to state prison for [a] violent offense
and has three children who are now adults who have sustained allegations of sexual abuse
against other children? And the [Bureau] knows all this, I’m told. And they know that
these adults come in and out of the home. . . . [For the Bureau to] utilize that household to
place children who are in foster care . . . [is] outrageous to me.” Judge Hardie then
6
turned to Minor’s trial counsel and asked, “Did you know any of this?” The response
was unequivocal: “No, Your Honor. Not at all.”
III. DISCUSSION
If we were to resolve these appeals on the record presented to the juvenile court at
the .26 hearing, focusing solely on whether substantial evidence supports the juvenile
court’s finding that the beneficial relationship exception under section 366.26,
subdivision (c)(1)(B)(i) does not apply—the only issue raised in the main briefs—we
would have no trouble affirming. But proper application of the beneficial parental
relationship exception involves a fact-bound weighing process (In re Autumn H. (1994)
27 Cal. App. 4th 567, 575), and because Mother’s C.C.P. section 909 motion casts doubt
on the integrity of the record the juvenile court relied upon both in making the predicate
finding that Minor was adoptable and in undertaking the weighing process to apply the
parental benefit exception, the additional evidence Mother proffers,5 if we consider it,
5
Mother’s C.C.P. section 909 motion attaches eight exhibits filed post-termination
in Minor’s case, consisting of a minute order filed September 19, 2018 following a
hearing on the Bureau’s petition for emergency removal of Minor from Foster Parents’
home (Exhibit A); a minute order filed October 19, 2018 following a hearing on Foster
Parents’ objection to the removal of Minor from their home (Exhibit B); a Memorandum
to Judge Hardie dated October 16, 2018, co-authored by the social worker’s supervisor
and by the Bureau’s lead investigator for out-of-home investigations (Exhibit C); a
minute order filed October 31, 2018 following a continued hearing on Foster Parents’
objection to the removal of Minor from their home (Exhibit D); a minute order filed
November 14, 2018 following a continued hearing on Foster Parents’ objection to the
removal of Minor from their home (Exhibit E); the Court Appointed Special Advocate’s
(CASA) Post-Permanency Report and Recommendation to the Juvenile Court of Contra
Costa County filed January 16, 2019 (Exhibit F); the Bureau’s Post-Permanency Status
Review filed January 16, 2019 (Exhibit G); and a minute order filed January 16, 2019
following the six-month post-permanency status review (Exhibit H).
Mother was no longer allowed to participate in the proceedings in Minor’s
dependency post-termination and thus did not have access to any transcripts of the
hearings referenced in her Exhibits A through H, or any of the documentary evidence
considered by the court at those hearings. As a result, while the exhibits she proffers
highlight the major developments in the case post-termination, they give us limited
information about why Judge Hardie entered the orders she did. To clarify that, on our
7
fundamentally changes the character of what we must decide. To flesh out how things
change, we directed the parties to address the following three issues in supplemental
briefing and at oral argument.
First, Mother’s C.C.P. section 909 motion charges the Bureau with failing to
disclose evidence material to the issue of adoptability in the .26 Report, which led the
juvenile court to find that Minor was adoptable by foster parents J.M. and C.P.
(collectively, Foster Parents)—a finding that the transcripts of post-termination
proceedings make abundantly clear would never have been made had the court known all
the pertinent facts. In light of this allegation, we directed the parties to address whether
the criteria for issuance of a writ of error coram vobis, a rarely invoked appellate remedy
reserved for cases involving corruption of the trial court record by “extrinsic fraud” (see
In re Rachel M. (2003) 113 Cal. App. 4th 1289, 1295–1296), are satisfied in this case.
Second, after we directed the parties to submit supplemental briefing on the coram
vobis issue, the Bureau—which had initially staked out a position urging us to affirm
without taking into account any postjudgment evidence probative of its withholding of
information at the .26 hearing—stipulated to reversal. In a joint application for reversal
and remand by stipulation, the Bureau, Mother, Father, and Minor (for whom we
appointed counsel on appeal), together, now propose that we return the case to the
juvenile court for a new .26 hearing. The joint application is vague as to the legal basis
for reversing, other than the parties’ agreement to our doing so. We are, of course,
empowered to accept a stipulation under Code of Civil Procedure section 128,
subdivision (a)(8) and reverse summarily, but that raises the question: Should we do so
here?
own motion we directed that the following supplemental materials be lodged with this
court: (1) transcripts of hearings dated October 19, 2018, October 31, 2018, November
14, 2018, December 5, 2018, January 16, 2019, and February 13, 2019, (2) the 2017
Investigation Report that was provided to the juvenile court at the October 19, 2018
hearing, and (3) the social worker’s case notes that were provided to the juvenile court at
the October 31, 2018 hearing. (See fn. 3, ante.)
8
Third, prior to the .26 hearing, under section 366.22, subdivision (c)(1)(D), the
Bureau was required to file a report with the juvenile court analyzing the likelihood that
Minor would be adopted, including in that report a “preliminary assessment of the
eligibility and commitment of any identified prospective adoptive parent or guardian,
particularly the caretaker[.]” And in its preliminary assessment of identified prospective
adoptive parents, the Bureau was specifically obligated under section 366.22,
subdivision (c)(1)(D) to supply “a social history including screening for criminal records
and prior referrals for child abuse or neglect[.]” This statutory reporting obligation raises
the third and final issue we asked the parties to address: Did the Bureau breach its
obligation to provide a preliminary assessment of adoptability here, and if so, was the
breach so egregious as to rise to the level of a due process violation, justifying reversal on
that basis?
We address these three issues in turn.
9
A. We Grant Mother’s Motion to Receive Additional Evidence on Appeal,
Deny the Bureau’s Motion to Strike, and Find it Unnecessary to Reach
the Coram Vobis Issue in Light of the Stipulation to Reversal
“It has long been the general rule and understanding that ‘an appeal reviews the
correctness of a judgment as of the time of its rendition, upon a record of matters which
were before the trial court for its consideration.’ [Citation.] This rule reflects an
‘essential distinction between the trial and the appellate court . . . that it is the province of
the trial court to decide questions of fact and of the appellate court to decide questions of
law . . . .’ [Citation.] The rule promotes the orderly settling of factual questions and
disputes in the trial court, provides a meaningful record for review, and serves to avoid
prolonged delays on appeal. ‘Although appellate courts are authorized to make findings
of fact on appeal by Code of Civil Procedure section 909 and [rule 8.252] of the
California Rules of Court, the authority should be exercised sparingly. [Citation.]
Absent exceptional circumstances, no such findings should be made.’ ” (Zeth S., supra,
31 Cal.4th at p. 405.)
Zeth S. involved a situation much like this case. There, after a termination of
parental rights, and during the pendency of an appeal of the termination on grounds the
juvenile court erred in failing to apply the parental benefit exception, appointed appellate
counsel for the minor (Zeth) wrote a letter seeking to bring to the attention of the Court of
Appeal information that allegedly showed termination of parental rights was not in Zeth’s
best interest. (Zeth S., supra, 31 Cal.4th at pp. 403–404.) Based on unsworn statements
in that letter, it was argued, there had been a change in circumstances, warranting reversal
of the termination order and remand for a new .26 hearing. (Id. at p. 404.) Addressing
the question whether it is permissible in a dependency appeal from an order terminating
parental rights to “consider postjudgment evidence that was never before the juvenile
court, and [to] rely on such evidence outside the record on appeal to reverse the
judgment,” our Supreme Court held that “the general answer is no,” although “in the rare
and compelling case an exception may be warranted.” (Id. at pp. 399–400.)
10
Beyond the facts presented there, Zeth S. had “no occasion to further address the
question whether any particular circumstances may give rise to an exception to the
general rule that postjudgment evidence is inadmissible in a juvenile dependency appeal
from an order terminating parental rights,” but it did acknowledge a case where “one
such exception” had been recognized. (Zeth S., supra, 31 Cal.4th at p. 413, fn. 11.) In
that case, In re Elise K. (1982) 33 Cal. 3d 138 (Elise K.), one of its own, “all of the parties
were in agreement, and offered to stipulate, that due to changed circumstances and the
minor’s advanced age, the minor in that case was no longer adoptable within the
meaning of former Civil Code section 232, subdivision (a)(7), thereby undermining the
foundational basis of the trial court’s order terminating mother’s custody and control over
the minor.” (Zeth S., supra, 31 Cal.4th at p. 413, fn. 11, original italics.) In a brief per
curiam opinion, the Supreme Court “determined that it was appropriate to accept that
stipulation, and on that basis the judgment of the superior court was reversed.” (Ibid; see
33 Cal.3d at p. 139.)
In its motion to strike Mother’s C.C.P. section 909 motion, the Bureau contends
that Elise K. has been superseded by legislation in the years since Zeth S. was decided.
In cases like Elise K., the Bureau suggests, where postjudgment developments have
fundamentally changed a child’s prospects for adoption, the Legislature has now
provided a remedy. The Bureau points to section 366.26, subdivision (i)(3), enacted by
amendment in 2005,6 which provides that “[a] child who has not been adopted after the
passage of at least three years from the date the court terminated parental rights and for
whom the court has determined adoption is no longer the permanent plan may” seek
reinstatement of parental rights by section 388 petition, thereby giving the child,
according to the Bureau, an “avenue to review postjudgment changes in circumstances
affecting [his] adoptability.”
We do not agree that that is an adequate remedy for Minor. Perhaps it could be
for a child who was determined to be generally adoptable, but it is not here. Whether a
6
Statutes 2005, chapter 634, section 2.
11
child is likely to be adopted is the “pivotal question” at a section 366.26 hearing (In re
Tamneisha S. (1997) 58 Cal. App. 4th 798, 804) and it is a question on which the child
welfare agency carries the burden of proof (In re Brian P. (2002) 99 Cal. App. 4th 616,
623). Section 366.26, subdivision (c)(1) provides, in relevant part, that “[i]f the
[juvenile] court determines based upon the [adoption] assessment . . . and any other
relevant evidence, by a clear and convincing standard, that it is likely the child will be
adopted, the [juvenile] court shall terminate parental rights and order the child placed for
adoption.” In determining the child’s adoptability, the court must focus on the child —
“whether the child’s age, physical condition, and emotional state” lends him or her to
finding an adoptive family. (In re Carl R. (2005) 128 Cal. App. 4th 1051, 1061 (Carl R.).)
Because the issue focuses on the child, adoptability generally falls into two
categories: General adoptability, and specific adoptability. (Carl R., supra, 128
Cal.App.4th at p. 1061.) The existence of a committed prospective adoptive parent is
relevant, but is not determinative. (In re David H. (1995) 33 Cal. App. 4th 368, 378
(David H.); see In re Sarah M. (1994) 22 Cal. App. 4th 1642, 1650 [“a prospective
adoptive parent’s willingness to adopt generally indicates the minor is likely to be
adopted within a reasonable time either by the prospective adoptive parent or by some
other family”], original italics.) A child who is happy, healthy and young, with no
discernable developmental problems, can be found to be generally adoptable even if no
prospective adoptive family is “ ‘waiting in the wings,’ ” ready to adopt. (Sarah M.,
supra, 22 Cal.App.4th at p. 1649; In re G.M. (2010) 181 Cal. App. 4th 552, 562.) For a
specifically adoptable child, on the other hand, the court’s inquiry is different. The court
must determine whether there are any legal impediments to adoption and whether there is
a prospective adoptive parent who is able to meet the needs of the child. (In re Helen W.
(2007) 150 Cal. App. 4th 71, 80.)
General adoptability was not addressed in this case, at least not explicitly. Minor
is a high-needs child who, despite his tender years, has a history of mental instability that
must be managed with a regimen of psychotropic medication and intensive therapy, and
he has struggled to progress in school. Not surprisingly, the sole focus of the Bureau’s
12
adoptability assessment at the .26 hearing was on Minor’s prospects for adoption with
Foster Parents, who, for all the problems that later surfaced concerning their suitability to
be adoptive parents, demonstrated over the course of Minor’s more than two years in
their care, that they understood his challenging circumstances, and nonetheless were
committed to adopting him. Thus, as Judge Hardie pointed out at the October 31, 2018
hearing, she found Minor adoptable “because he was in a home with committed
caregivers who wanted to adopt him.” (Italics added.) It is always critical to make an
accurate determination of adoptability at a .26 hearing, but it is particularly critical in a
specific adoptability case.
Taking a “let’s wait-and-see” attitude towards Minor’s adoptability for three years
may, in fact, serve to compound the error. We are told Minor has shown resilience and
adjusted well in the emergency foster placement where he was sent after his removal
from Foster Parents’ home, but his caregivers there have made clear they have no
interest in adoption. As a result, there is some possibility here that the Bureau
mistakenly put Minor “in the position of having neither a parent nor a prospect of
gaining one through adoption” (Elise K., supra, 33 Cal.3d at p. 148 (conc. opn. of Bird,
C.J.)), thus effectively rendering him a legal orphan, an outcome the law abhors.7 If
Minor now has no realistic prospect for adoption—a matter that can only be determined
at a new .26 hearing, on a fuller record—putting off a review of his adoptability for
several years would be the opposite of the permanence and stability the statutory scheme
seeks to bring about.
Accordingly, we will grant Mother’s motion to receive additional evidence on
appeal under the Elise K. exception to the rule handed down in Zeth S. In light of the
parties’ stipulation that “subsequent events” after the .26 hearing in this case have
“undermined the juvenile court’s finding that [Minor] was likely to be adopted,” and their
stipulation to reversal on that ground, we conclude that this is one of those “rare and
7
Carl R., supra, 128 Cal.App.4th at page 1062, footnote 6; In re Jayson T. (2002)
97 Cal. App. 4th 75, 85, disapproved on other grounds in Zeth S., supra, 31 Cal.4th at
pages 413–414.
13
compelling case[s]” (Zeth S., supra, 31 Cal.4th at p. 399) “where postjudgment evidence
stands to completely undermine the legal underpinnings of the juvenile court’s judgment
under review, and all parties recognize as much[.]” (Id. at p. 413, fn. 11.)8 Having
concluded the Elise K. exception to Zeth S. applies, we have no occasion to reach the
further issue whether a writ of error coram vobis is warranted in this case.
B. We Decline to Accept the Stipulated Reversal as the Basis For Resolving
These Appeals
“[M]otions to reverse or vacate duly entered judgments are governed by [Code of
Civil Procedure] section 128, subdivision (a)(8). Subdivision (a) enumerates the powers
of the courts of this state. Prior to 1999, the last enumerated power, set forth in
subdivision (a)(8), simply provided that every court shall have the power ‘(8) to amend
and control its process and orders so as to make them conform to law and justice.’
Legislation in 1999 added to that sentence the following language: ‘An appellate court
shall not reverse or vacate a duly entered judgment upon an agreement or stipulation of
the parties unless the court finds both of the following: [¶] (A) There is no reasonable
possibility that the interests of nonparties or the public will be adversely affected by the
reversal. [¶] (B) The reasons of the parties for requesting reversal outweigh the erosion
of public trust that may result from the nullification of a judgment and the risk that the
availability of stipulated reversal will reduce the incentive for pretrial settlement.’ (Stats.
1999, ch. 508, § 1.)” (Hardisty v. Hinton & Alfert (2004) 124 Cal. App. 4th 999, 1005
(Hardisty).)
“The 1999 amendment was designed to supersede the opinion of the California
Supreme Court in Neary v. Regents of the University of California (1992) 3 Cal. 4th 273
8
Having granted Mother’s C.C.P. section 909 motion, we take judicial notice of
the transcripts of the post-termination hearings that took place in this case on October 19,
2018, October 31, 2018, December 5, 2018, January 16, 2019, and February 13, 2019.
(Evid. Code, §§ 459, 452, subd. (d).) We also take judicial notice of the 2017
Investigation Report and the social worker’s 2017 case notes, since they were presented
to and considered by the juvenile court at those hearings (ibid.) and they “help complete
the context of this case.” (Flatley v. Mauro (2006) 39 Cal. 4th 299, 306, fn. 2; see fn. 3,
ante.)
14
[] (Neary). (Muccianti v. Willow Creek Care Center (2003) 108 Cal. App. 4th 13, 19 [ ].)
Neary stood for the proposition that ‘when the parties to an action agree to settle their
dispute and as part of their settlement stipulate to a reversal of the trial court judgment,
the Court of Appeal should grant their request for the stipulated reversal absent a showing
of extraordinary circumstances that warrant an exception to this general rule.’ (Neary, at
p. 284.) The Neary rule amounted to a presumption that motions for stipulated reversal
should ordinarily be granted. The 1999 amendment reverses Neary’s presumption in
favor of accepting stipulated reversals and instead creates a presumption against
stipulated reversals. (Martin & Shatz, Reverse Course: CCP Section 128(a)(8) Has
Succeeded in Reversing the Presumption in Favor of Stipulated Reversals (Feb. 2003) 25
L.A. Lawyer 24.)” (Hardisty, supra, 124 Cal.App.4th at pp. 1005–1006.)
“Prudent rulings on motions for stipulated reversal have always required
information that is usually not in the record or readily apparent. (See 9 Witkin, Cal
Procedure [(4th ed. 1997)] Appeal, § 783, pp. 817–818.) The parties ordinarily possess
or can obtain such information, but if the information would justify denial of their request
for reversal they may not be motivated to seek it or, if they have the information, to
disclose it. In 1994, shortly after Neary was decided, this appellate district addressed the
problem by promulgating [former] local rule 8 [(Ct. App. First. Dist., Local Rules, former
rule 8, now codified as rule 4 (local rule 4); see also Ct. App. First. Dist., Proposed Local
Rules, rule 10, scheduled to take effect in summer 2019)], which was designed to call the
attention of counsel to the nature of the disclosure required of parties seeking stipulated
reversal.” (Hardisty, supra, 124 Cal.App.4th at p. 1007.) Among other things, “Local
rule [4] . . . make[s] explicit a requirement implicit in subdivision (a)(8) of section 128:
the duty of counsel for parties to a joint motion for stipulated reversal to affirmatively
demonstrate a basis for each of the three findings required to be made by the statute.”
(Hardisty, at p. 1008.)
We are not persuaded that the joint application submitted by the parties offers
reasons for stipulated reversal that overcome the presumption against accepting stipulated
reversals on appeal. We applaud the professionalism shown by counsel for the parties in
15
settling once it became clear there was a serious problem with the record here, followed
by their diligent efforts to make the necessary showing under Code of Civil Procedure
section 128, subdivision (a)(8), addressing each required item under local rule 4 in a joint
application. But we do not agree with the suggestion in the parties’ application that
acceptance of a stipulated reversal “poses no risk that the public trust in the judiciary will
be eroded[.]”
We are concerned about the broader public interest, beyond the interests of the
parties involved in this specific case. Based on a joint declaration signed by all counsel,
including Minor’s trial counsel, the parties inform us that an “error occurred in this case
because 1) the agency did not directly apprise the parties and the juvenile court of
problems in [Minor’s] prospective adoptive home, although the social worker entered
information about [the June 2017 Investigation] . . . into her case notes; 2) those problems
were unknown to the juvenile court and no party challenged [Minor’s] adoptability;
3) the problems in the adoptive home led to [Minor’s] removal from that home and
placement in a temporary foster home; and 4) these circumstances undermine the juvenile
court’s finding that [Minor] is likely to be adopted within a reasonable time, which forms
the basis for the order terminating parental rights.”
Left vague in this recitation is any reference to the legal basis for reversing, other
than the parties desire that we do so. Our concern is exactly what Judge Hardie
highlighted at the end of the October 31, 2018 hearing: Public trust in the judiciary is
uniquely at stake when the basis for termination of parental rights is called into question.
While she ultimately accepted the Bureau’s explanation for what happened in this case,
she left little doubt that the withholding of information material to her assessment of
Foster Parents’ fitness as prospective adoptive parents—whatever the reasons for it—had
obstructed her ability to discharge her judicial responsibilities. Not only do we share
Judge Hardie’s concerns about the insidious effect of inaccurate and incomplete
disclosure by child welfare agencies in the section 366.26 process, but we believe it is
important to explain—using this case as an instructive example—how fundamentally
inconsistent it is with the statutory scheme.
16
C. The Bureau Breached Its Statutory Obligation to Provide A Full, Fair
and Even-Handed Preliminary Assessment of Adoptability, and that
Breach Violated Minor’s Due Process Rights
1. Violation of Statutory Reporting Obligation Under Section 366.22,
Subdivision (c)
“In addition to providing child welfare services to the family involved in a
dependency proceeding, the . . . social services agency provides essential information to
the court. At each stage of the dependency proceeding, the social services agency is
statutorily mandated to prepare social study reports and make recommendations to assist
the court.” (In re Ashley M. (2003) 114 Cal. App. 4th 1, 7 (Ashley M.).) The required
reports in dependency proceedings vary by hearing, but in general they are all designed
to make sure the court has the evidence before it to make the necessary findings at each
stage of the proceeding. (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure
(2019) § 2.63[2][g][iii], p. 2–265 (Seiser & Kumli).) Operationally, “[t]he duties to
furnish child welfare services and to provide reports and recommendations to the
juvenile court are actually placed by statute upon ‘the social worker.’ ” (Ashley M.,
supra, 114 Cal.App.4th at p. 8.)
In carrying out these functions the social worker has been likened to a prosecutor
and thus is serving as an arm of the state in this regard, working in collaboration with
others at the agency, including counsel. (See Elene H. v. County of Los Angeles (1990)
220 Cal. App. 3d 1445, 1452; Seiser & Kumli, supra, § 2.63[1], p. 2–259.) But unlike
counsel for the agency, social workers are not advocates in the adversarial sense. Social
workers make recommendations, but because their professional role is best described as
that of a “disinterested part[y],” their reports to the court must have the characteristics of
“objectivity and expertise.” (In re Malinda S. (1990) 51 Cal. 3d 368, 377, superseded by
statute on another point as stated in People v. Otto (2001) 26 Cal. 4th 200, 207.) In fact,
it is the recognized professional objectivity of social workers, and the “trustworthiness”
and “reliability” of their work, that justifies the admissibility of their reports in
dependency proceedings, despite the layers of hearsay these reports typically contain.
17
(Ibid.)
The need for objective reporting from the social welfare agency is nowhere more
important than at the permanency planning hearing under section 366.26. “Whenever a
court orders that a hearing pursuant to Section 366.26 . . . shall be held, it shall direct the
agency supervising the child and the county adoption agency . . . to prepare an
assessment that shall include” detailed and specific information bearing on the issue of
adoptability. (§ 366.22, subd. (c)(1) [reports required for .26 hearings set at 18-month
permanency review hearings].)9 Such a report must analyze “the likelihood that the
child will be adopted if parental rights are terminated” (§ 366.22, subd. (c)(1)(F)) and
provide a “preliminary assessment of the eligibility and commitment of any identified
prospective adoptive parent or legal guardian, particularly the caretaker” (id., subd.
(c)(1)(D)).10 Among the required information for a such a preliminary assessment is “a
social history including screening for criminal records and prior referrals for child abuse
or neglect[.]” (§ 366.22, subd. (c)(1)(D).)
Here, the task fell to the social worker to prepare and file a full, fair and even-
handed pre-adoption study prior to the .26 hearing revealing all information specified in
section 366.22, subdivision (c)(1)(D). The Bureau makes no serious attempt to contend
that what she filed complied with that obligation. While allowing it might be argued, at
worst, that the .26 Report was “weak and did not fully meet all statutory reporting
requirements,” the Bureau contends the omissions in the .26 Report were not material to
the outcome. At the October 31, 2018 hearing, the Bureau argues, all Judge Hardie said
was that in light of the newly revealed information bearing on adoptability she “would
9
See sections 361.5, subdivision (g)(1) (reports required for .26 hearings set at
disposition hearings after denial of reunification services), 366.21, subdivision (i)(1)
(reports required for .26 hearings set at six-month review hearings or at 12-month
permanency hearings) and 366.25, subdivision (b)(1) (reports required for .26 hearings
set at 24-month subsequent permanency review hearings).
10
See sections 361.5, subdivision (g)(1)(D), 366.21, subdivision (i)(1)(D) and
366.25, subdivision (b)(1)(D).
18
have had a more difficult time making certain findings about adoptability,” not that she
would have reached a different result. We cannot agree that this shows the outcome
would have been the same had the 2017 Investigation been revealed in the .26 Report. It
is abundantly clear based on Judge Hardie’s more definitive comments on December 5—
after an evidentiary hearing spanning three hearing days—that she never would have
found Minor to be specifically adoptable had she known the true facts.
Emphasizing the issue of general adoptability could have been litigated, but was
never pressed, the Bureau points out that prior to the .26 hearing the social worker
produced her case notes in discovery, and that Father’s sister, Aunt T., filed two
declarations making derogatory allegations against J.M. in an unsuccessful change-of-
custody application. According to the Bureau, all parties were aware of plenty of
information that cast into doubt Foster Parents’ eligibility to adopt—some of it already
known to the court—yet neither Parents nor Minor chose to pursue the issue.11 This is, in
11
The Bureau argues that “[w]hile the . . . social worker should have included the
information regarding the prospective adoptive parents’ criminal and child welfare
history[,] . . . it should also be noted the underlying purpose of requiring this history in
the preliminary assessment was met as the prospective adoptive parents had been
approved as [a resource family] after a vigorous application process.” In support of this
contention, the Bureau advances a somewhat convoluted explanation, premised on the
idea that “the preliminary assessment report was intended as a precursor to an approved
homestudy report which was the vehicle for adoption prior to the changes that took place
effective January 1, 2017 that dramatically changed the approval process for ‘resource
families[]’ ” under section 16519.5, subdivision (d). According to the Bureau, “section
16519.5(d) defines the resource family as an individual or family that has successfully
met both the home environment assessment standards and the permanency assessment
criteria.” Quoting from the Seiser & Kumli treatise, the Bureau then tells us “ ‘[t]he
permanency assessment will replace the adoption homestudy.’ ” It is indeed true that
section 16519.5, subdivision (d), introduced a new, streamlined process for approval of
resource families. (See Seiser & Kumli, supra, § 2.127[9], p. 2–476 [“The goal of this
revised approval process is to offer a unified, family friendly, and child-centered approval
process for all families seeking to care for children including those homes seeking
guardianship or adoption [citation]. . . . Previously, the approval process was different for
each type of placement.”].) But these changes in the administrative vetting process for
resource families do not relieve child welfare agencies of the obligation to comply with
their statutory reporting obligations to the juvenile court, as the Bureau implicitly
19
effect, a waiver argument. (In re Dakota S. (2000) 85 Cal. App. 4th 494, 502.) But while
it is typically true that “ ‘points not urged in the trial court cannot be raised on appeal[,]
[citation] [t]he contention that a judgment is not supported by substantial evidence . . . is
an obvious exception to the rule.’ ” (In re Brian P., supra, 99 Cal.App.4th at p. 623.)
Without the social worker’s flawed .26 Report, we see no substantial record evidence to
support an adoptability finding, whether viewed as an express finding of special
adoptability or an implied finding of general adoptability. By affirming, we would be
relieving the Bureau of its burden of proof and allowing an order unsupported by
substantial evidence to stand. (In re Gregory A. (2005) 126 Cal. App. 4th 1554, 1561.)
In general, “[w]here an investigative report is required prior to the making of a
dependency decision, and it is completely omitted, due process may be implicated
because a cornerstone of the evidentiary structure upon which both the court and parents
are entitled to rely has been omitted.” (In re Crystal J. (1993) 12 Cal. App. 4th 407, 413,
original italics (Crystal J.).) Conversely, “[w]here . . . the assessment report is prepared,
is available to the parties in advance of the noticed hearing, and does address the
principal questions at issue in the particular proceeding, errors or omissions in the report
cannot be characterized in terms of denial of due process.” (Ibid., original italics.) Given
the complete omission of a mandatory component of the .26 Report under section 366.22,
subdivision (c)(1)(D), we conclude there was a statutory violation here, at least.
Normally, for pure state law error, we evaluate prejudice under People v. Watson (1956)
46 Cal. 2d 818, 836 (Watson), which places the burden on an appellant to show a
reasonable probability she would have achieved a more favorable outcome absent the
error. Although we can say for sure that the issue of special adoptability would have
been decided differently absent the error here, we cannot know what would have
happened had the issue of general adoptability been adjudicated. Because the outcome
concedes in acknowledging that “the social worker should have included” information
required by section 366.22, subdivision (c)(1)(D) in the .26 Report. It is simply not the
case that the “underlying purpose” of this reporting obligation “was met” simply because
the appropriate administrative vetting for Foster Parents as a resource family had been
done.
20
there is wholly within the realm of speculation, the correct prejudice analysis comes
down to who bears the risk of error on appeal. And to decide that, we must determine
whether we are dealing with error of federal constitutional magnitude.
2. Due Process Violation
Was the Bureau’s violation of section 366.22, subdivision (c)(1)(D) so egregious
as to rise to the level of a denial of due process? Parents, joined by Minor, say that it
was. We answer the question no as to Parents, but yes as to Minor.12
Starting with Parents first, their parental unfitness had already been adjudicated by
the time the case reached the permanency plan selection stage. Thus, going into the .26
hearing, their fundamental liberty interest in the care, custody and control of Minor was
attenuated. Their only chance at preserving a legal bond to Minor at that point turned on
the beneficial parental relationship exception, an issue on which they bore the burden of
proof. (In re Cristella C. (1992) 6 Cal. App. 4th 1363, 1372–1373.) Moreover, Parents
were in an adverse position to the Bureau, as they had been throughout the proceeding,
and they contested the Bureau’s proposed recommendations and findings at the .26
hearing. Nothing stopped them from cross-examining Foster Parents or the social
worker, or from putting on any evidence they wished to present.
The Bureau contends that, at the .26 hearing, it did nothing to prevent Parents
from having a fair opportunity to litigate adoptability or any other issue, had they chosen
to do so. Instead, they elected to submit on the .26 Report. While the information in the
social worker’s case notes may have been limited and Aunt T.’s declarations may have
been conclusory and unsubstantiated, the Bureau points out that “even without the
complete history it is clear that the parties possessed enough evidence of [J.M.’s]
criminal and child welfare history to mount a possible legal impediment challenge, not
only regarding this history but also to the marital status of the prospective adoptive
12
Minor’s appointed appellate counsel, in addition to joining the parties’
stipulation to reversal of the order terminating parental rights, filed a brief urging reversal
and remand for a new .26 hearing on the ground the juvenile court’s adoptability finding
has been undermined. We construe this brief as a joinder in Parents’ appeal to the extent
it seeks reversal of the .26 order.
21
parents.” “At the very least,” the Bureau argues, “the parties had enough evidence to
request additional discovery[.]” (See Cal. Rules of Court, rule 5.546(c), (d) [agency’s
discovery obligations in § 300 proceedings], and (f) [motions to compel discovery].)
David H., supra, 33 Cal. App. 4th 368, a case cited by the Bureau in its
supplemental reply brief addressing the issue of coram vobis, is useful by way of
analogy. At issue there was a claim by a father whose parental rights had been
terminated that he declined to contest adoptability at the .26 hearing because the child
welfare agency misrepresented to him that his son, David, had a set of committed
prospective adoptive parents waiting for him. That was not just misleading. It was
outright false. (Id. at pp. 374–375.) On appeal of the order terminating his parental
rights, the father argued, among other things, extrinsic fraud (id. at p. 384), which some
courts have described as tantamount to a due process violation. (See Los Angeles
Airways, Inc. v. Hughes Tool Co. (1979) 95 Cal. App. 3d 1, 7 [“in any attempted collateral
attack based on lately discovered evidence, it is crucial to be able to demonstrate what
amounts to due process deprivation: that the issue in question was really never litigated
in any meaningful fashion”].)
In rejecting that claim, the appellate panel in David H. said this: “Parental rights
are terminated because (1) the parents have been found so derelict in their duties to their
children, or so unable to fulfill those duties, that it would be harmful to return the child to
their custody [citation], and (2) the child has a chance of finding a caring, stable and
nurturing home elsewhere [citation]. In David’s case, he was freed from inadequate
parents, but his prospective adoptive home proved to be a mirage and a hoax. It would be
a tragic anomaly if the derelict parents could now further impede David’s chances of
finding a secure home by forcing relitigation of the permanent plan on the ground of
injuries they feel were done to them. [¶] As a general matter, it would be inimical to the
policies underlying the juvenile court law to allow parents to raise a collateral challenge
to an order terminating parental rights on the ground that the child’s post-termination
placement did not meet with the parents’ expectations. Such relief is not available,
whether the parents’ expectations were not met because of an uncontrollable turn of fate,
22
[citation] or for any other reason, including intentional misrepresentations concerning the
potential placement.” (David H., supra, 33 Cal.App.4th at pp. 384–385.)
With respect to Parents, the analysis in David H. is apt. But notably, the David H.
opinion was careful to point out that its holding did not apply to David, the minor in that
case. “Whether there was fraud or other wrongdoing as to David himself is another
question, which we do not address,” the court observed. (David H., supra, 33
Cal.App.4th at p. 381, fn. 7.) “David, of course, was left parentless without the certainty
of a new and secure home which he would, with reasonable probability, have had, absent
the misrepresentations.” (Ibid.) So, too, with Minor in this case. In juvenile dependency
proceedings, children “have fundamental interests of their own that may diverge from the
interests of the parent.” (In re Jasmon O. (1994) 8 Cal. 4th 398, 419.) The centrality of
the issue of adoptability at a .26 hearing heightens “the relative severity of the
consequences of an erroneous decision on the child. With the likelihood of adoption, the
child is subject to a dramatically different set of outcomes as a result of the termination
hearing” compared to what is at stake for him earlier in the proceeding. (In re Cristella
C., supra, 6 Cal.App.4th at p. 1370.) “Instead of a bleak future in foster care limbo on
the one hand, and return to a possibly abusive household on the other, the likelihood of
adoption effectively realigns the consequences of an erroneous decision in termination
proceedings: The alternatives are now life with a stable family who have already
sacrificed for the sake of the child’s well-being versus life with . . . parent[s] to whom
return of the child has been repeatedly shown to be detrimental.” (Ibid.)
Given the stakes for the Minor at the .26 hearing, he had a fundamental liberty
interest in accurate determination of the issue of adoptability on a full and complete
record. Section 366.26, subdivision (c)(1) protects that interest by holding the child
welfare agency to the standard of clear and convincing proof. But quantum of proof is
not the only protection minor-dependents have at .26 hearings. The Legislature has also
been quite clear that the child welfare agency’s pre-adoption study supplies the
evidentiary foundation on which the juvenile court’s adoptability determination must rest.
(See § 366.26, subd. (b) [“At the hearing, . . . the court, in order to provide stable,
23
permanent homes for these [dependent] children, shall review the report as specified in
Section 361.5, 366.21, 366.22, or 366.25 [and] shall indicate that the court has read and
considered it . . . .”].) It is also important to keep in mind the unique obligation of trust
and confidence that the child welfare agency has in the permanency selection phase of a
dependency proceeding. The minor-dependent is entitled to view the agency as his
“champion” (In re Angelia P. (1981) 28 Cal. 3d 908, 919) and to place complete faith in
its expert analysis of his adoptability. Thus, going into the .26 hearing, Minor, unlike
Parents, had no incentive to probe or challenge the Bureau’s litigating position, and at the
hearing he elected not to contest any of the Bureau’s proposed recommendations or
findings.
Mindful of Minor’s vulnerable position going into the .26 hearing, we apply
Crystal J., supra, 12 Cal.App.4th at page 413—based on complete omission of one of the
mandatory components of a section 366.22, subdivision (c)(1) report—but we add a
corollary to the rule laid down there: The party most likely to suffer a due process
violation when a child welfare agency submits a wholly inadequate report, and the only
party who suffered it here, is the minor-dependent. By failing to provide the information
required by section 366.22, subdivision (c)(1)(D), the Bureau not only destroyed the
evidentiary foundation for an accurate determination of Minor’s adoptability, but
deprived him of the assistance of fully informed counsel. Minor could have mounted a
challenge to whether the Bureau met its burden of proof, but his counsel never knew she
had a basis to do so. Under these circumstances, we conclude that, just as the
suppression of information material to guilt or innocence in a criminal trial violates the
due process right of the defendant to a fair trial (Brady v. Maryland (1963) 373 U.S. 83
(Brady)), the Bureau violated Minor’s due process right to a fair permanency selection
and planning hearing. The Bureau insists, as it did before Judge Hardie, that the social
worker’s failure to disclose all of the information that was finally revealed in October
2018 was a good faith mistake. Perhaps it was. But just as with Brady, the obligation to
disclose is operative “irrespective of the good faith or bad faith of the prosecution.” (Id.
at p. 87.)
24
When we deal with error of federal constitutional dimension in dependency cases,
it is unclear whether the prejudice test is that of harmlessness beyond a reasonable doubt
(Chapman v. California (1967) 386 U.S. 18, 24; see In re Mark A. (2007) 156
Cal. App. 4th 1124, 1144–1146) or by clear and convincing proof (see Denny H. v.
Superior Court (2005) 131 Cal. App. 4th 1501, 1514–1515; In re Meranda P. (1997) 56
Cal. App. 4th 1143, 1157, fn. 9). We need not wade into this nuanced debate over the
standard of review, for under either approach, unlike under Watson, the burden is on the
Bureau to show harmlessness, and on this record that burden has not been met. We
cannot be sure beyond a reasonable doubt, or by clear and convincing proof, that Judge
Hardie would have found Minor adoptable had the Bureau filed a fully compliant section
366.22, subdivision (c)(1) report. Given the preference for adoption, perhaps she would
have done so by finding Minor generally adoptable. Or perhaps she would have opted for
a permanent plan other than adoption.
Here again, Judge Hardie went to the heart of the matter, articulating the prejudice
analysis well, albeit without framing it as a matter of due process. She observed: “Could
you say, generally, that [Minor] is, by clear and convincing evidence, likely to be
adopted? [¶] I don’t know. I’m not so sure. [¶] . . . [T]he Court may have viewed his
safety and situation differently than the [Bureau]. And I think the Court should have
been given that opportunity to make that assessment. [¶] I think his Attorney should
have been given the information to make whatever arguments that she might have wanted
to make on his behalf.” With those comments, Judge Hardie captured the nub of it. The
.26 hearing in this case took place nearly 10 months ago, which was 31 months after
Minor’s original detention. By withholding evidence material to the determination of
adoptability, the Bureau, in effect, added what will likely be another year onto the
timetable before Minor’s permanency is decided. That is regrettable, but it is also
unavoidable.
IV. CONCLUSION AND DISPOSITION
The .26 order and findings are reversed. Without intimating any view as to what
permanency option might be best in this case, or whether the parental relationship benefit
25
exception might apply, the case is remanded with directions that the Bureau prepare an
updated section 366.22, subdivision (c)(1) report specifically assessing whether Minor is
likely to be adopted within a reasonable time. The juvenile court shall then conduct a
new section 366.26 hearing.
26
_________________________
STREETER, ACTING P.J.
We concur:
_________________________
TUCHER, J.
_________________________
BROWN, J.
A155254, A155571
27
A155254, A155571/In re B.D.
Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Rebecca C. Hardie
Counsel:
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and
Appellant J.D.
First District Appellate Project, Jonathan Soglin and Louise E. Collari, under
appointment by the Court of Appeal, for Defendant and Appellant G.D.
Sharon L. Anderson, County Counsel, Lisa M. O’Connor, Deputy County Counsel for
Plaintiff and Respondent.
Leslie A. Barry, under appointment by the Court of Appeal, for Minor.
28