In re I.T. CA2/1 ( 2022 )

Filed 8/5/22 In re I.T. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re I.T., a Person Coming B316344
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 18CCJP02535)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
JOSE T.,
Defendant and Appellant.
APPEAL from an order terminating parental rights
of the Superior Court of Los Angeles County, Rudolph A. Diaz,
Judge. Affirmed.
John L. Dodd, under appointment by the Court of Appeal,
for Defendant and Appellant.
Marissa Coffey, under appointment by the Court of Appeal,
for Respondent.
Dawyn R. Harrison, Acting County Counsel and William D.
Thetford, Principal Deputy County Counsel, for Plaintiff and
Respondent.
____________________
Father Jose T. challenges the termination of his parental
rights over I.T., then 16 years old, and requests that this court
reverse the order terminating parental rights. The dispositive
issue on appeal is whether this court can consider events
occurring after the juvenile court issued its order terminating
parental rights. All parties agree that the prospective adoptive
placement identified at the time parental rights were terminated
subsequently failed. We conclude that, under controlling
Supreme Court authority, we cannot consider events occurring
after the termination of father’s parental rights. Because
substantial evidence supported the juvenile court’s finding that
I.T. was adoptable at the time the juvenile court made that
finding, we affirm the order terminating father’s parental rights.
The dependency statutory scheme, however, allows I.T., but not
father, to petition the juvenile court to modify the order
terminating parental rights, if I.T. elects to do so.
2
BACKGROUND
I.T. was born in May 2005. Father is I.T.’s presumed
father. Mother and father divorced in 2014.
1 In April 2018, at the time the dependency proceedings
commenced, I.T. lived with mother, and father lived in Florida.
Mother reported that father moved to Florida after she obtained
a restraining order. In April 2018, father reported that he had no
information concerning I.T.’s wellbeing.
As later sustained following mother’s and father’s no
contest pleas, the petition alleged mother has mental and
emotional problems rendering her incapable of providing I.T.
with regular care and supervision. Twice mother was
hospitalized and mother failed to participate in psychiatric
services or take prescribed medication. Father knew of mother’s
mental and emotional problems and was unable to protect I.T.
After the juvenile court sustained jurisdiction, the court
ordered conjoint counseling with father when I.T.’s therapist
deemed it appropriate and permitted father monitored visits
twice a month. The court also ordered father participate in a
program with the National Alliance on Mental Illness (NAMI)
and parenting classes. In May 2018, father attempted to enroll
in a program, but it was full and father indicated he would enroll
at a later date. In June 2018, father did not have time to enroll
in a parenting class because of his work and school schedule.
Father was unable to travel to Los Angeles and requested phone
calls instead of visits. In November 2018, father enrolled in a
parenting program. In a report filed February 2019, DCFS
1 Mother suffers from major depression with psychotic
features and is not a party to this appeal.
3
indicated father started a NAMI program. In May 2019, DCFS
reported that father attended five sessions of a NAMI program.
In October 2019, DCFS reported that father completed his
parenting program.
Social workers described I.T. as suffering from chronic
posttraumatic stress disorder, major depressive disorder, and
generalized anxiety disorder. I.T.’s therapist reported that I.T.
was addressing these issues, made progress, and had no
behavioral issues. I.T. was in psychiatric care for the
posttraumatic stress disorder and took medication daily. I.T.
reported that the medication did not cause him side effects.
Social workers also described I.T. as “a very bright and talented
artist who loves to draw.” In May 2019, DCFS reported that I.T.
was doing well academically and was timely completing
homework. I.T. had an individualized educational plan to
address emotional disturbance.
I.T. was born female and identifies as male. The juvenile
court ordered I.T. receive all medical treatments including
testosterone therapy. During the dependency proceedings, I.T.
was transitioning from female to male. I.T. describes himself as
“assigned female at birth” and having “gender nonconformity
since childhood.”
Although father denied it, there was evidence he abused
I.T. when I.T. was a child. In 2017, mother and I.T. reported
father physically abused I.T. In May 2018, I.T. reported, “ ‘I don’t
want to see or live with my dad. He is evil.’ ” I.T. reported father
withheld food, locked him in a room, and threw him against a
4
wall.2 I.T. also described father as hitting his head with books
and dragging him by his hair.
In June 2018, I.T.’s therapist did not recommend conjoint
counseling with father because I.T. did not want to have any
communication with father. In June 2018, DCFS reported that
I.T. refused to have any contact with father. When father
attempted to call, I.T. refused to speak to him. In
November 2018, I.T. still wanted no contact with father.
In a report filed in February 2019, DCFS indicated that I.T.
started to have contact with father. In May 2019, DCFS reported
that father and I.T. had weekly calls. In October 2019, I.T.’s
therapist reported that the conjoint therapy sessions with father
were problematic because father “appears very distracted and
disengaged during the sessions and father is usually in a
classroom or in a cafeteria where there is a lot of background
noise or father is continuously speaking to other people and
causing a lot of interruptions to the sessions.” Father had an
interruption in every session, and I.T. was not interested in
continuing with the conjoint counseling. I.T. no longer wanted to
speak to father on the phone. I.T. said he “would die if he was
forced to go live with father.”
At the beginning of the dependency proceedings and for a
substantial time period, I.T. lived with the F.’s, family friends.
I.T. thrived in their care and they provided a supportive home
but did not want to adopt I.T. In July 2021, I.T. began living
with his prospective adoptive parents Mr. and Mrs. M.
2 I.T.’s adult half sister also reported being afraid of father.
I.T.’s half sister observed father drag I.T. by his hair up the stairs
and kick mother’s throat.
5
1. Welfare and Institutions Code3 section 366.26 reports
Section 366.26 governs the selection and implementation of
a permanent plan for a child unable to reunify with his or her
parents. The section 366.26 hearing was continued several times,
and DCFS filed multiple reports in advance of the hearing.
In March 2020, in advance of the originally scheduled
section 366.26 hearing, DCFS reported I.T. continued to reside
with the F.’s. I.T. refused to speak to father, who called every
other week. DCFS reported no prospective adoptive parent had
been identified.
In January 2021, DCFS reported that I.T. looked forward to
college, enjoys art and marine biology, and volunteered in an
aquarium. I.T. did not want contact with father, who attempted
to contact I.T. about every other week. DCFS reported that long
term foster care “would probably be in the best interest for” I.T.
In a section 366.26 report dated January 2021, DCFS
reported that I.T. was a bright and talented artist. I.T. refused to
speak to father and “does not want to have anything to do with
him.” At that time, DCFS had not found a prospective adoptive
family for I.T.
In July 2021, I.T. met with prospective adoptive parents,
the M.’s, and reported liking them. I.T. and the M.’s were
building a bond and looked forward to adoption. DCFS stated
I.T. “has shown tremendous growth as an individual and has
been able to open up to prospective adoptive parents. . . . He has
been able to be resilient . . . .” DCFS recommended adoption as
I.T.’s permanent plan.
3 Undesignated statutory citations are to the Welfare and
Institutions Code.
6
In a third section 366.26 report dated October 2021, DCFS
reported I.T. was living with prospective adoptive parents
Mr. and Mrs. M. Mr. and Ms. M. provided for I.T. and were
supportive of his future plans. DCFS reported that Mr. and Mrs.
M. provided I.T. with basic necessities and respond to his
medical, emotional, and educational needs. I.T. wanted Mr. and
Mrs. M. to adopt him. I.T. wanted no contact with father.
In an addendum report, DCFS reported that Mr. and
Mrs. M. received certification from the resource family approval
program. DCFS indicated that it had not completed an in-person
visit with the prospective adoptive parents because when a social
worker called to schedule a visit, Mrs. M. was expecting to give
birth imminently and was unable to accommodate the requested
visit.
Following a hearing at which no person testified, the
juvenile court found by clear and convincing evidence that I.T.
was adoptable. The court rejected father’s counsel’s argument
that DCFS had “not done the home visits yet, and I don’t see any
where [sic] D.C.F.S. has filed a supplemental 26 indicating they
have the face-to-face visits at the prospective adoptive home.” At
the hearing, the juvenile court stated that I.T. could not be
returned to mother or father’s custody and no exception to
termination of parental rights applied in this case. On
November 15, 2021, the court terminated mother and father’s
parental rights. Later that day, father filed a timely notice of
appeal.
7
2. Events subsequent to the termination of parental
rights4
In December 2021, DCFS reported that I.T. continued to
live with Mr. and Mrs. M. I.T. did “not feel like ‘part of the
family’ and spen[t] a majority of his time in his bedroom playing
video games and interacting with his friends online.” I.T.
was not sure he wanted to be adopted by Mr. and Mrs. M. In
January 2022, Mr. and Mrs. M. indicated they no longer wanted
to adopt I.T. I.T. no longer wanted to live with Mr. and Mrs. M.
DCFS had not identified a new prospective adoptive home for
him.
DISCUSSION
Father argues we must reverse the order terminating his
parental rights; DCFS filed a letter indicating it did not oppose
reversal of the order terminating parental rights. I.T. filed a
respondent’s brief requesting this court affirm the order
terminating parental rights. We agree with I.T. because
substantial evidence supported the juvenile court’s order and
because under controlling Supreme Court authority, we may not
consider postjudgment evidence in deciding this appeal on its
merits.
4 We provisionally granted father’s request to take judicial
notice of documents evidencing these subsequent events.
8
A. The Evidence at the Time of the Permanency
Planning Hearing Supported Adoption as I.T.’s
Permanent Plan
“ ‘ “At the selection and implementation hearing held
pursuant to section 366.26, a juvenile court must make one of
four possible alternative permanent plans for a minor child. . . .
The permanent plan preferred by the Legislature is adoption.” ’
[Citation.] ‘In order for the court to select and implement
adoption as the permanent plan, it must find, by clear and
convincing evidence, the minor will likely be adopted if parental
rights are terminated.’ [Citations.]” (In re Brandon T. (2008)
164 Cal.App.4th 1400, 1408 (Brandon T.).)
“Usually, the issue of adoptability focuses on the minor,
‘e.g., whether the minor’s age, physical condition, and emotional
state make it difficult to find a person willing to adopt the minor.’
[Citation.] However, ‘in some cases a minor who ordinarily might
be considered unadoptable due to age, poor physical health,
physical disability, or emotional instability is nonetheless likely
to be adopted because a prospective adoptive family has been
identified as willing to adopt the child.’ [Citation.]” (Brandon T.,
supra, 164 Cal.App.4th at p. 1408.) A finding of adoptability is
supported by clear and convincing evidence, when a child is
deemed adoptable because a particular care taker is willing to
adopt and there is no legal impediment to the prospective
adoptive parent’s adoption or the prospective adoptive parents’
ability to meet the needs of the child. (In re Helen W. (2007)
150 Cal.App.4th 71, 80 (Helen W.).)
In general, this court reviews the correctness of the juvenile
court’s order terminating parental rights at the time it was made.
(In re Zeth S. (2003) 31 Cal.4th 396, 405 (Zeth S.).) Mindful of
9
the clear and convincing evidence standard in the juvenile court,
substantial evidence supported the finding that I.T. was
adoptable at the time the juvenile court made that finding.
(Guardianship of O.B. (2020) 9 Cal.5th 989, 1005 [“when
presented with a challenge to the sufficiency of the evidence
associated with a finding requiring clear and convincing evidence,
the court must determine whether the record, viewed as a whole,
contains substantial evidence from which a reasonable trier of
fact could have made the finding of high probability demanded by
this standard of proof”].)
At the time of the section 366.26 hearing, I.T. was placed in
a prospective adoptive home. I.T. was likely to be adopted
because a prospective adoptive family was identified who wanted
to adopt I.T., and I.T. wanted to be adopted by them. The
juvenile court was required to consider I.T.’s wishes, and at the
relevant time, he unequivocally wanted Mr. and Mrs. M. to adopt
him. (§ 366.26, subd. (h)(1) [“the court shall consider the wishes
of the child and shall act in the best interests of the child”].) The
foregoing constitutes substantial evidence that I.T. was
adoptable. (In re Mary C. (2020) 48 Cal.App.5th 793, 803
(Mary C.) [usually fact that prospective adoptive parent wants to
adopt child is evidence of adoptability]; Helen W., supra,
150 Cal.App.4th at p. 80 [“a prospective adoptive parent serves as
evidence a child is likely to be adopted within a reasonable time
either by the prospective adoptive parent or some other home”].)
“The court was not required to find [I.T.] ‘generally’ or
‘specifically’ adoptable. [Citation.] It was required only to find by
clear and convincing evidence that [I.T. was] ‘likely’ to be adopted
within a reasonable time [citations] . . . .” (Mary C., supra,
48 Cal.App.5th at p. 802, fn. omitted.)
10
To the extent father seeks reversal of the order terminating
parental rights on the newly-minted argument that the
October 2021 section 366.26 report lacked all required
information, he forfeited his claim by failing to assert any such
defect5 in the juvenile court. (Mary C., supra, 48 Cal.App.5th at
5 Section 366.21, subdivision (i) provides in part:
“(i)(1) Whenever a court orders that a hearing pursuant to
Section 366.26, including, when, in consultation with the child’s
tribe, tribal customary adoption is recommended, shall be held, it
shall direct the agency supervising the child and the county
adoption agency, or the State Department of Social Services when
it is acting as an adoption agency, to prepare an assessment that
shall include:
“(A) Current search efforts for an absent parent or parents
or legal guardians.
“(B) A review of the amount of and nature of any contact
between the child and his or her parents or legal guardians and
other members of his or her extended family since the time of
placement. Although the extended family of each child shall be
reviewed on a case-by-case basis, ‘extended family’ for the
purpose of this subparagraph shall include, but not be limited to,
the child’s siblings, grandparents, aunts, and uncles.
“(C) (i) An evaluation of the child’s medical,
developmental, scholastic, mental, and emotional status.
“(ii) The evaluation pursuant to clause (i) shall
include, but is not limited to, providing a copy of the
complete health and education summary as required under
Section 16010, including the name and contact information
of the person or persons currently holding the right to make
educational decisions for the child.
“(iii) In instances where it is determined that
disclosure pursuant to clause (ii) of the contact information
11
of the person or persons currently holding the right to make
educational decisions for the child poses a threat to the
health and safety of that individual or those individuals,
that contact information shall be redacted or withheld from
the evaluation.
“(D) A preliminary assessment of the eligibility and
commitment of any identified prospective adoptive parent or legal
guardian, including the prospective tribal customary adoptive
parent, particularly the caretaker, to include a social history
including screening for criminal records and prior referrals for
child abuse or neglect, the capability to meet the child’s needs,
and the understanding of the legal and financial rights and
responsibilities of adoption and guardianship. If a proposed
guardian is a relative of the minor, the assessment shall also
consider, but need not be limited to, all of the factors specified in
subdivision (a) of Section 361.3 and in Section 361.4.
“(E) The relationship of the child to any identified
prospective adoptive parent or legal guardian, the duration and
character of the relationship, the degree of attachment of the
child to the prospective relative guardian or adoptive parent, the
relative’s or adoptive parent’s strong commitment to caring
permanently for the child, the motivation for seeking adoption or
guardianship, a statement from the child concerning placement
and the adoption or guardianship, and whether the child, if over
12 years of age, has been consulted about the proposed relative
guardianship arrangements, unless the child’s age or physical,
emotional, or other condition precludes his or her meaningful
response, and if so, a description of the condition.
“(F) A description of efforts to be made to identify a
prospective adoptive parent or legal guardian, including, but not
limited to, child-specific recruitment and listing on an adoption
exchange within the state or out of the state.
12
p. 801; In re Crystal J. (1993) 12 Cal.App.4th 407, 411–413.)
Although, in theory, a deficiency in DCFS’s reporting potentially
could undermine a finding of substantial evidence to support
adoptability (In re Brian P. (2002) 99 Cal.App.4th 616, 622–623),
that did not occur in this case. On appeal, father identifies no
evidence at the time of the permanency planning hearing, that
was concealed or unreported that would have supported the
conclusion that I.T. was not adoptable. Even assuming DCFS
should have provided additional details about I.T.’s prospective
adoptive family in the section 366.26 report, substantial evidence
supported the adoptability finding. (Brandon T., supra,
164 Cal.App.4th at p. 1410 [“[W]here there is no evidence of any
specific legal impediments to completing the adoption process,
parental rights may be terminated to a specifically adoptable
child regardless of whether a home study has been completed.”].)
Father’s argument that the juvenile court misunderstood
the law because, at the section 366.26 hearing, the court
indicated I.T. could not be returned to parents’ custody lacks
merit. Our Supreme Court recently held that in the context of
considering the parental-benefit exception to the termination of
parental rights, a juvenile court cannot rely exclusively on the
fact that the child cannot be returned to parental custody. (In re
Caden C. (2021) 11 Cal.5th 614, 630, 637.) In contrast to Caden
C., this appeal does not involve a challenge to the court’s denial of
the parental-benefit exception simply because a child could not be
returned to the parents’ care. The record does not support
father’s argument that the juvenile court relied on an improper
“(G) An analysis of the likelihood that the child will be
adopted if parental rights are terminated.”
13
factor when it considered adoptability. To the contrary, the
record indicates the juvenile court rejected father’s only
argument that social workers “have not done the home visits
yet . . . .”6
Notwithstanding his arguments, father essentially
concedes that based on the available evidence at the time of the
permanency planning hearing, the juvenile court properly
terminated his parental rights. Father expressly acknowledges:
“father did not challenge I.’s adoptability in the juvenile court
directly ([citation]); because I. was in a preadoptive placement,
there was little or no legal basis to do so.” We agree father
did not challenge I.T.’s adoptability in the juvenile court and, at
the relevant time, there was no basis for any such challenge
because I.T. was placed in a home with prospective adoptive
parents and he wanted to be adopted by them.
B. Father Does Not Show This Court May Consider
Events Occurring After the Termination of Parental
Rights
Father also argues that this court may reverse the order
terminating parental rights based on events occurring after the
order terminating rights. Father’s argument is inconsistent with
our high court’s jurisprudence.
In a now disapproved case, In re Jayson T. (2002)
97 Cal.App.4th 75, our sister court considered evidence
subsequent to the termination of parental rights that an adoption
fell through and, on that basis, reversed an order terminating
6 Father also incorrectly states that his counsel requested
a continuance to allow social workers to visit the home. Counsel
asked only that the court “note father’s objection.”
14
parental rights. In Zeth S., the Supreme Court rejected the
following rationale from Jayson T. (97 Cal.App.4th at p. 78): “A
child should not be condemned to legal orphanage merely because
possible problems with his or her adoptability were . . . not
discovered or glossed over by the trial court. As long as the order
terminating parental rights is not yet final, a court should be able
to examine whether the child is still likely to be adopted.”
(Zeth S., supra, 31 Cal.4th at p. 414, see also ibid. [disapproving
Jayson T.].)
Zeth S. explained: “The chief problem with the Court of
Appeal’s approach, however well intentioned it was, is that it
effectively substitutes the reviewing court’s own post hoc
determination of whether termination of parental rights remains
in the minor’s best interests for the legislatively mandated
determination that follows when the comprehensive juvenile
dependency statutory scheme is dutifully adhered to in the trial
court. The Legislature, however, has determined that what is in
the child’s best interests is best realized through implementation
of the procedures, presumptions, and timelines written into the
dependency statutes. The statutory scheme does not authorize a
reviewing court to substitute its own judgment as to what is in
the child’s best interests for the trial court’s determination in
that regard, reached pursuant to the statutory scheme’s
comprehensive and controlling provisions.” (Zeth S., supra,
31 Cal.4th at pp. 409–410, fn. omitted.)
Zeth S. further held that an appellate court generally
cannot reverse a juvenile court’s judgment when “the juvenile
court itself has committed no legal error in terminating parental
15
rights on the record evidence before it.”7 (Zeth S., supra,31 Cal.4th at p. 412.) As relevant here, Zeth S. cautioned that
“consideration of postjudgment evidence of changed
circumstances in an appeal of an order terminating parental
rights, and the liberal use of such evidence to reverse juvenile
court judgments and remand cases for new hearings, would
violate both the generally applicable rules of appellate procedure,
and the express provisions of section 366.26 which strictly
circumscribe the timing and scope of review of termination
orders, for the very purpose of expediting the proceedings and
promoting the finality of the juvenile court’s orders and
judgment.” (Id. at p. 413.)
In sum, Zeth S. held in the same procedural setting as
here—an asserted postjudgment failure of an adoption and a
valid juvenile court adoptability finding when made—that sound
appellate practice and legislatively mandated goals of the
dependency system counsel against allowing postjudgment
evidence to upset an otherwise valid adoptability order. The
concurring opinion seeks to cabin Zeth S.’s reach by asserting
that in Zeth S., the postjudgment evidence was an unsworn
statement of counsel and any such evidence does not constitute
“the kind of exceptional circumstances or the rare and compelling
case that would warrant consideration of postjudgment evidence
7 The Supreme Court subsequently described Zeth S. as
follows: “[A]n appellate court should not consider postjudgment
evidence going to the merits of an appeal and introduced for the
purposes of attacking the trial court’s judgment.” (In re Josiah Z.
(2005) 36 Cal.4th 664, 676.) Josiah Z. held that courts of appeal
could consider postjudgment evidence in the context of a motion
to dismiss.
16
or making factual findings by the Court of Appeal.” (Conc. opn.
post, p. 2.) As set forth above, our high court’s rationale in
Zeth S. was not based on the quality, or lack thereof, of the
evidence before it.
Zeth S. recognized an exception not applicable to the case
before us: Where all parties stipulate that postjudgment
evidence showing that a child is no longer adoptable requires the
reversal of an order terminating parental rights, an appellate
court may accept that stipulation and reverse the order
terminating parental rights. (Zeth S., supra, 31 Cal.4th at p. 413,
fn. 11, citing In re Elise K. (1982) 33 Cal.3d 138; see also In re
Angel L. (2008) 159 Cal.App.4th 1127, 1141.) Clearly, where the
parties stipulate that the appellate court may consider
postjudgment evidence and reverse the termination of parental
rights, the Zeth S. court’s concern, that “[t]he statutory scheme
does not authorize a reviewing court to substitute its own
judgment as to what is in the child’s best interests for the trial
court’s determination” is not implicated. (See Zeth S., at p. 410.)
In In re B.D. (2019) 35 Cal.App.5th 803, 814 (B.D.), the
court applied the Zeth S. exception to remedy a failure to provide
information to the juvenile court that deprived the minor of due
process. The B.D. court granted the mother’s motion to “receive
additional evidence” on appeal not presented in the juvenile court
because the parties stipulated that “ ‘subsequent events’ after the
section 366.26 hearing in this case have ‘undermined the juvenile
court’s finding that [Minor] was likely to be adopted . . . .’ ” (Id.
at p. 818.) After receiving the additional evidence, the B.D. court
held that the agency’s failure to disclose that the prospective
adoptive parent’s history of sexual abuse or the fact that the
parent’s adult sons who also lived in the home had a history of
17
committing sexual offenses against other juveniles constituted a
violation of due process as to the child, but not as to the parents.
(Id. at pp. 811, 824.) The failure to provide adequate information
deprived the child of the opportunity to challenge the adoptability
finding. (Id. at p. 827.)
Here, in contrast to B.D., no party stipulated to a reversal,
and I.T. does not seek to challenge the juvenile court’s
adoptability finding. This case is further distinguishable from
B.D. in that father identifies no critical information withheld
from the parties and the court at the section 366.26 hearing, let
alone any defect raising due process concerns. Instead, the
events occurring after the termination order demonstrate only a
change of circumstance. To reiterate, Zeth S. instructs that this
court should not reverse a juvenile court’s judgment when “the
juvenile court itself has committed no legal error in terminating
parental rights on the record evidence before it.” (Zeth S., supra,
31 Cal.4th at p. 412.)
Resisting this conclusion, father requests this court treat
his appeal as a petition for writ of coram vobis and remand the
case for a new section 366.26 hearing. Coram vobis is a “rarely
invoked appellate remedy reserved for cases involving corruption
of the trial court record by ‘extrinsic fraud.’ ” (B.D., supra,
35 Cal.App.5th at p. 814; see also In re Rachel M. (2003)
113 Cal.App.4th 1289, 1295–1296.) Father identifies no extrinsic
fraud.8 Father shows only that circumstances changed since the
8 “The extrinsic/intrinsic fraud rule is a doctrine developed
in courts of equity governing the basis for successful collateral
attack on a final judgment by way of an independent proceeding.
The rule is that fraud internal to the adversary proceeding, such
as perjury committed during trial or error or mistake during the
18
juvenile court terminated his parental rights. Father’s premise
that this court may reverse the order terminating parental rights
to protect I.T. is identical to that in the now disapproved case,
In re Jayson T.
The relevant statute governing permanency planning
hearings allows I.T., not father, to petition the court to modify the
order terminating parental rights.9 It is I.T.’s choice whether to
file such a petition. The Legislature did not give father the same
option. Father thus has demonstrated no basis for this court to
consider the evidence that the adoption fell through after the
juvenile court terminated parental rights in assessing the
propriety of the juvenile court’s order terminating father’s
parental rights.
trial, is intrinsic and is not a basis for relief; but fraud that
prevented the trial of a claim or prevented the defrauded party
from getting into court at all, is extrinsic to the proceeding and is
a basis for relief.” (Los Angeles Airways, Inc. v. Hughes Tool Co.
(1979) 95 Cal.App.3d 1, 7.)
9 Section 366.26, subdivision (C)(i)(3) provides in pertinent
part: “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 that adoption is no
longer the permanent plan may petition the juvenile court to
reinstate parental rights pursuant to the procedure prescribed by
Section 388. The child may file the petition prior to the
expiration of this three-year period if the State Department of
Social Services, county adoption agency, or licensed adoption
agency that is responsible for custody and supervision of the child
as described in subdivision (j) and the child stipulate that the
child is no longer likely to be adopted. . . . If it appears that the
best interests of the child may be promoted by reinstatement of
parental rights, the court shall order that a hearing be held . . . .”
19
In conclusion, we recognize that I.T. desires “becom[ing]
part of a loving family.” I.T. has demonstrated amazing
resilience. He overcame a devastating and difficult childhood
where father physically abused mother and I.T., and during all
this, I.T. managed a hormonal transition that by itself would be
challenging even with a supportive family background. I.T. is
quite remarkable. Regardless of the next steps I.T. chooses to
follow, this court’s obligation is to follow our Supreme Court
authority (Auto Equity Sales, Inc. v. Superior Court (1962)
57 Cal.2d 450, 455), which requires us to affirm the order
terminating parental rights notwithstanding the posttermination
evidence.
DISPOSITION
The order terminating parental rights over I.T. is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
I concur:
KELLEY, J.*
* Judge of the Los Angeles County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
20
ROTHSCHILD, P. J., Concurring.
I.
I concur in the judgment affirming the order terminating
parental rights. I write separately to point out that, under In re
Zeth S. (2003) 31 Cal.4th 396 (Zeth S.), Courts of Appeal may
consider postjudgment evidence in “rare and compelling case[s]”
(id. at p. 399) and make factual findings when “exceptional
circumstances” exist. (Id. at p. 405, italics omitted.) Although
the application of the general rule and the exception to that rule
in this case is a close question, I agree with the majority that the
postjudgment evidence proffered in this case does not warrant
reversal of the juvenile court’s orders.
II.
In Zeth S., the social services agency identified the
child’s grandfather as the child’s prospective adoptive parent.
At a hearing held pursuant to Welfare and Institutions Code 1
section 366.26, the juvenile court found the child adoptable
and terminated the parents’ parental rights. (Zeth S., supra,31 Cal.4th at pp. 402−403.) After the mother appealed, her
counsel filed in the Court of Appeal an unsworn letter brief
stating “that ‘[a]ccording to the grandfather, he felt pressure
to adopt [the minor] and preferred to become [the minor’s] legal
guardian.’ ” (Id. at p. 403.) The Court of Appeal remanded the
matter to the juvenile court for “an ‘updated review hearing in
1 Undesignated statutory citations are to the Welfare and
Institutions Code.
the form of a retrial’ ” of the section 366.26 hearing. (Zeth S.,
supra, at p. 404.)
In reversing the Court of Appeal, the Supreme Court held
that, generally, Courts of Appeal may not “receive and consider
postjudgment evidence that was never before the juvenile court,
and rely on such evidence outside the record on appeal to reverse
the judgment.” (Zeth S., supra, 31 Cal.4th at p. 399.) This
general rule is subject to an exception for “rare and compelling
case[s].” (Ibid.) Appellate courts are also authorized to make
factual findings under Code of Civil Procedure section 909, albeit
such “authority should be exercised sparingly” (Zeth S., supra, at
p. 405), and only under “ ‘exceptional circumstances.’ ” (Ibid.)
In Zeth S., the unsworn statement submitted by appellant’s
counsel did not constitute “evidence” and “did not even directly
relate to, much less undermine, the juvenile court’s finding of the
adoptability of the minor.” (Zeth S., supra, 31 Cal.4th at p. 414,
fn. 11.) Thus, the facts in Zeth S., did not present the kind of
exceptional circumstances or the rare and compelling case that
would warrant consideration of postjudgment evidence or making
factual findings by the Court of Appeal.
Although Zeth S. explained that development of the rare
and compelling case exception “must await a case in which the
facts squarely present the issue” (Zeth S., supra, 31 Cal.4th at
p. 414, fn. 11), the court noted that the exception applied in In re
Elise K. (1982) 33 Cal.3d 138. In that case, the parties stipulated
that, “due to changed circumstances and the minor’s advanced
age, the minor in that case was no longer adoptable . . . , thereby
undermining the foundational basis of the trial court’s order
terminating [the] mother’s custody and control over the minor.”
(Zeth S., supra, 31 Cal.4th at p. 413, fn. 11.)
2
It is not clear from Zeth S. and its discussion of Elise K.
what weight, if any, a Court of Appeal should give to the fact
that parties stipulate to facts that undermine the foundation of
the juvenile court’s order. Reason, however, suggests that where
the facts undermining that foundation are indisputable, the fact
that a party refuses to stipulate should not stand in the way of
accomplishing justice. I would conclude, therefore, that “where
postjudgment evidence stands to completely undermine the
legal underpinnings of the juvenile court’s judgment under
review” (Zeth S., supra, 31 Cal.4th at p. 414, fn. 11), the power
of the appellate court to consider such evidence and reverse the
judgment does not depend upon the existence of a stipulation
among the parties.
III.
In light of Zeth S., the issue in cases in which a party
seeks consideration of postjudgment evidence will ordinarily
be, as the appellant frames the question in this case, whether
the case comes within the “rare and compelling case” exception
to the general rule that postjudgment evidence is not considered
on appeal. I consider this to be a close question. As of May 2022,
I.T. is 17 years old and the postjudgment evidence suggests that
he may have difficulty bonding with any prospective parent. 2
2 In a report filed in January 2022, I.T.’s the then-
prospective adoptive parents reported that I.T. “has shown a
complete lack of willingness to meet very minimal responsibilities
such as attending school and cleaning his room. The [former
prospective adoptive parents] feel that [I.T.] believes that he is
entitled to live with them on his terms—essentially that he will
complete no responsibilities, but he will have unlimited
gaming /electronics time and privileges. [They] express concern
3
Still, the evidence does not necessarily establish that I.T. is not
adoptable. Indeed, according to a postjudgment “Last Minute
Information for the Court,” I.T. “stated he still wants to be
adopted,” and nothing in the proffered evidence indicates that
social workers have determined that I.T. is no longer adoptable
or that they have abandoned efforts to find a pre-adoptive
placement for him. Therefore, I agree with the majority that
the juvenile court’s orders should be affirmed.
ROTHSCHILD, P. J.
that [I.T.] spends nearly all of his free time gaming or interacting
with online friends and as a result, lives in an alternate reality
and has very little ability to function in the real world. [I.T.]
regularly resorts to dishonesty and manipulation to achieve his
wants. He often feigns or grossly exaggerates physical ailments
and mental health episodes in order to get out of things he does
not want to do such as school and chores. He will claim that he
is too physically or mentally unwell to attend school or complete
a task but within minutes be fully engaged while gaming or
interacting with his online friends.”
4