35 Cal. App. 5th 803
Cal. Ct. App. 5th2019Background
- Minor (B.D.) was in foster care with J.M. and C.P. (Foster Parents). At a section 366.26 (.26) hearing the juvenile court terminated Parents' rights after the Bureau recommended adoption by Foster Parents.
- Within a month after termination Minor was removed from Foster Parents' home following reports of physical and later disclosed sexual-risk issues; subsequent hearings revealed earlier (June 2017) Bureau investigative material about Foster Parents that had not been included in the .26 report.
- The withheld 2017 investigative material indicated criminal and child-welfare histories (including incarceration and allegations involving relatives in the household) and a safety plan restricting who could be alone with Minor.
- The Bureau admitted its unit had kept confidential investigation files separate and that the social worker preparing the .26 report had not provided the juvenile court or counsel the full 2017 investigative report or related details necessary for the adoptability assessment.
- After post-termination hearings revealed the omitted material, the parties (including Minor) stipulated to reversal; the Court of Appeal instead considered the merits and concluded the Bureau violated statutory reporting duties and Minor’s due process rights, and ordered a new .26 hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate court may consider postjudgment evidence and grant relief | Mother argued Elise K. exception applies: postjudgment evidence completely undermines adoptability finding so appellate receipt of additional evidence is warranted | Bureau initially urged affirmation on record and later stipulated to reversal; argued statutory reinstatement mechanisms suffice for postjudgment change | Court granted C.C.P. §909 relief under the Elise K. line as this is a rare case where postjudgment events undermined the judgment and accepted additional evidence |
| Whether stipulated reversal by parties suffices to reverse under Code Civ. Proc. §128(a)(8) | Parties jointly sought stipulated reversal and remand to juvenile court | Bureau relied on stipulation and suggested statutory remedies available | Court declined to reverse solely on stipulation, citing public-interest concerns and §128(a)(8) standards; decided case on merits |
| Whether Bureau violated statutory duty to include adoptability/ caregiver history in §366.22(c)(1)(D) report | Mother and Minor argued Bureau omitted material information (criminal and child-welfare history, safety plan) required for preliminary assessment | Bureau contended omissions were not outcome-determinative and administrative resource-family approvals mitigated need for repetition in .26 report | Court held Bureau breached §366.22(c)(1)(D) by failing to include material preliminary assessment information in the .26 report |
| Whether that statutory breach rose to a federal due process violation requiring reversal | Mother/Minor argued suppression of material adoptability information deprived Minor of fair .26 hearing (Brady-analogue) | Bureau argued parents could have challenged adoptability and that omission was a good-faith mistake; also contended Parents’ rights were attenuated so no due process violation for them | Court held Parents did not suffer a constitutionally protected deprivation, but Minor did: the omission violated Minor’s due process right to a fair permanency hearing; reversal and new .26 hearing ordered |
Key Cases Cited
- Zeth S. v. Superior Court, 31 Cal.4th 396 (rare-and-compelling exception to rule forbidding postjudgment evidence in dependency appeals)
- Elise K. v. Superior Court, 33 Cal.3d 138 (acceptance of stipulated reversal where postjudgment change undermined adoptability finding)
- Crystal J. v. Superior Court, 12 Cal.App.4th 407 (due process implicated when mandatory investigative report is completely omitted)
- David H. v. Superior Court, 33 Cal.App.4th 368 (limits on parents relitigating permanency after misleading agency representations; distinguishes child’s separate interest)
- Autumn H. v. Superior Court, 27 Cal.App.4th 567 (beneficial parental relationship exception requires factbound weighing)
- Carl R. v. Superior Court, 128 Cal.App.4th 1051 (general vs specific adoptability distinctions)
- Sarah M. v. Superior Court, 22 Cal.App.4th 1642 (willing prospective adoptive parent relevant but not dispositive on adoptability)
- Brian P. v. Superior Court, 99 Cal.App.4th 616 (burden on agency to prove likely adoption by clear and convincing evidence)
- Ashley M. v. Superior Court, 114 Cal.App.4th 1 (social worker duties to prepare reports and recommendations for juvenile court)
- Brady v. Maryland, 373 U.S. 83 (prosecutorial suppression of material exculpatory evidence violates due process; invoked analogously for agency suppression of material adoptability information)