Contra Costa Cnty. Children v. J.D. (In re B.D.)

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

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

"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 [ 10 Cal.Rptr.2d 859 , 834 P.2d 119 ] [ ] ( Neary ). ( Muccianti v. Willow Creek Care Center (2003) 108 Cal.App.4th 13 , 19 [ 133 Cal.Rptr.2d 1 ] [ ].) 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 [ 10 Cal.Rptr.2d 859 , 834 P.2d 119 ].) 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, 21 Cal.Rptr.3d 835 .)

"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

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

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

David H. , supra , 33 Cal.App.4th 368 , 39 Cal.Rptr.2d 313 , 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, 39 Cal.Rptr.2d 313 .) On appeal of the order terminating his parental rights, the father argued, among other things, extrinsic fraud ( id. at p. 384, 39 Cal.Rptr.2d 313 ), 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, 156 Cal.Rptr. 805 ["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, [citation] or for any other reason, including

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, 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, 171 Cal.Rptr. 637 , 623 P.2d 198 ) and to place complete faith in its expert analysis of his adoptability. Thus, going into the .26 hearing, Minor, unlike

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.

n these consolidated appeals, G.D. (Mother) and J.D. (Father) (collectively,

B

arely a month after juvenile court Judge Rebecca Hardie permanently severed the relationship between Minor and Parents in reliance on the Bureau's recommended finding that Minor was likely to be adopted by foster parents J.M. and C.P. (collectively, Foster Parents)-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),

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 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

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-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, 7 Cal.Rptr.3d 153 ), 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

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.

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

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, 2 Cal.Rptr.3d 683 , 73 P.3d 541 .) In that case, In re Elise K. (1982) 33 Cal.3d 138 , 187 Cal.Rptr. 483 , 654 P.2d 253 ( 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, 2 Cal.Rptr.3d 683 , 73 P.3d 541 , 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, 187 Cal.Rptr. 483 , 654 P.2d 253 .)

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

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, 27 Cal.Rptr.3d 612 .) 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, 39 Cal.Rptr.2d 313 ( David H. ); see In re Sarah M. (1994) 22 Cal.App.4th 1642 , 1650, 28 Cal.Rptr.2d 82 ["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, 28 Cal.Rptr.2d 82 ; In re G.M. (2010) 181 Cal.App.4th 552 , 562, 105 Cal.Rptr.3d 32 .) 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, 57 Cal.Rptr.3d 914 .)

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 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,

"[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

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 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

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, 7 Cal.Rptr.3d 237 ( 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, 7 Cal.Rptr.3d 237 .)

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 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, 39 Cal.Rptr.2d 313 .) "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, 33 Cal.Rptr.2d 85 , 878 P.2d 1297 .) 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. (

Mindful of Minor's vulnerable position going into the .26 hearing, we apply Crystal J., supra , 12 Cal.App.4th at page 413, 15 Cal.Rptr.2d 613 -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 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 ( 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, 83 S.Ct. 1194 .)

When we deal with error of federal constitutional dimension in dependency cases,

T

he .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 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.

We concur:

TUCHER, J.

BROWN, J.