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

• Decision Date: 24 May 2019
• Docket Number: A155254,A155571
• Citation: 35 Cal.App.5th 803,247 Cal.Rptr.3d 740
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE B.D., a Person Coming Under the Juvenile Court Law. Contra Costa County Children and Family Services Bureau, Plaintiff and Respondent, v. J.D., Defendant and Appellant. In re B.D., a Person Coming Under the Juvenile Court Law. Contra Costa County Children and Family Services Bureau, Plaintiff and Respondent, v. G.D., Defendant and Appellant.

35 Cal.App.5th 803

247 Cal.Rptr.3d 740

IN RE B.D., a Person Coming Under the Juvenile Court Law.

Contra Costa County Children and Family Services Bureau, Plaintiff and Respondent,

v.J.D., Defendant and Appellant.

In re B.D., a Person Coming Under the Juvenile Court Law.

Contra Costa County Children and Family Services Bureau, Plaintiff and Respondent,

v.G.D., Defendant and Appellant.

A155254

A155571

Court of Appeal, First District, Division 4, California.

Filed May 24, 2019

As Modified June 24, 2019

Joseph T. Tavano, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant J.D.

First District Appellate Project, Jonathan Soglin, San Francisco, and Louise E. Collari, Danville, 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, Huntington Beach, under appointment by the Court of Appeal, for Minor.

STREETER, ACTING P.J.

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 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, 2 Cal.Rptr.3d 683, 73 P.3d 541 ( 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, 2 Cal.Rptr.3d 683, 73 P.3d 541.) 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 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), 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 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.

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 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...