35 Cal.App.5th 803
Cal. Ct. App.2019Background
- Minor B.D., age eight, had parental rights to Mother (G.D.) and Father (J.D.) terminated at a Welfare & Institutions Code § 366.26 hearing and the court adopted adoption as the permanent plan.
- The juvenile court’s adoptability finding relied on Foster Parents J.M. and C.P., who had cared for Minor for over two years and expressed commitment to adopt.
- Post-termination, the Bureau investigated and removed Minor from Foster Parents’ home after discovering physical abuse and previously undisclosed concerns from a June 2017 investigation suggesting sexual-abuse–related risk factors in the home.
- The Bureau failed to include material information from the 2017 investigative report (criminal and child-welfare histories of household members, safety plan, improper household composition) in its § 366.22(c)(1)(D) pre-§ 366.26 report to the court.
- The omission came to light at subsequent hearings before the same trial judge, who found the Bureau’s nondisclosure unconscionable and refused to return Minor to Foster Parents; parties later stipulated on appeal that postjudgment events undermined the adoptability finding.
- The Court of Appeal granted Mother’s request to receive postjudgment evidence, declined to accept stipulated reversal as dispositive, found the Bureau violated statutory reporting duties, and held the nondisclosure violated Minor’s due process rights; the § 366.26 order was reversed and remanded for a new hearing with an updated § 366.22 report.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate court may receive postjudgment evidence undermining adoptability finding | Mother: Elise K. exception permits admitting postjudgment evidence where it completely undermines the basis for termination | Bureau: Zeth S. general bar on postjudgment evidence; any remedy lies in § 366.26(i)(3) reinstatement procedure | Court: Granted CCP § 909 relief under Elise K. exception; postjudgment evidence considered because it fundamentally undermined adoptability finding |
| Whether stipulated reversal by parties suffices to dispose of appeal | Parties jointly asked for reversal and remand | Bureau urged affirmation absent new evidence; parties later stipulated | Court: Declined to reverse solely on stipulation under CCP § 128(a)(8); public interest and need to address constitutional error required opinion on merits |
| Whether Bureau violated statutory duty to include adoptive-home screening and criminal/abuse history in § 366.22(c)(1)(D) report | Mother/Minor: Bureau omitted mandated preliminary assessment and social-history screening material to court | Bureau: Omission was inadvertent; vetting occurred administratively and Foster Parents were resource-family–approved | Court: Bureau breached § 366.22(c)(1)(D); omission materially undermined adoptability determination |
| Whether the statutory breach amounted to a due process violation requiring reversal | Mother/Minor: Withholding was like Brady — deprived Minor of fully informed representation and a fair § 366.26 hearing | Bureau: Parents could have contested adoptability; error was not constitutional for parents | Court: No due process violation as to Parents (attenuated liberty interest), but yes as to Minor — constitutional error; remand for new § 366.26 hearing |
Key Cases Cited
- In re Zeth S., 31 Cal.4th 396 (rare exception to rule barring postjudgment evidence in dependency appeals)
- In re Elise K., 33 Cal.3d 138 (parties’ stipulation and changed circumstances justified accepting postjudgment evidence and reversing adoption-based termination)
- David H. v. Superior Court, 33 Cal.App.4th 368 (parent’s collateral challenge to termination based on post-termination placement misrepresentations generally disfavored; distinct concern for the child remains)
- In re Crystal J., 12 Cal.App.4th 407 (complete omission of required investigative material can implicate due process)
- In re Malinda S., 51 Cal.3d 368 (social worker reports must be objective, reliable, and serve as the evidentiary foundation in dependency proceedings)
- In re Carl R., 128 Cal.App.4th 1051 (distinction between general and specific adoptability inquiries)
- Brady v. Maryland, 373 U.S. 83 (prosecutor’s suppression of evidence favorable to defendant violates due process; analogous disclosure obligation applied to child-welfare agency)