In re Zeth S., S099557.

• Decision Date: 04 August 2003
• Docket Number: No. S099557.,S099557.
• Citation: 2 Cal.Rptr.3d 683,31 Cal.4th 396,73 P.3d 541
• Court: California Supreme Court
• Parties: In re ZETH S., a Person Coming Under the Juvenile Court Law. Orange County Social Services Agency, Plaintiff and Respondent, v. Stacy S., Defendant and Appellant.

2 Cal.Rptr.3d 683

73 P.3d 541

31 Cal.4th 396

In re ZETH S., a Person Coming Under the Juvenile Court Law.

Orange County Social Services Agency, Plaintiff and Respondent, v. Stacy S., Defendant and Appellant.

No. S099557.

Supreme Court of California.

August 4, 2003.

Rich Pfeiffer, Tustin, and Jennifer Mack, under appointments by the Supreme Court, for Defendant and Appellant.

Laurence M. Watson and Benjamin P. deMayo, County Counsel, Robert G. Overby, Julie J. Agin, Deborah M. Gmeiner and Rachel M. Bavis, Deputy County Counsel, for Plaintiff and Respondent.

Law Office of Harold LaFlamme, Craig E. Arthur and Karen Cianfrani, Orange, for Dependency Children in the County of Orange and Trial Attorneys for Zeth S. as Amici Curiae on behalf of Plaintiff and Respondent.

John J. Sansone, County Counsel (San Diego), Susan Strom, Chief Deputy County Counsel, Gary C. Seiser, Deputy County Counsel; and Ruth Sorensen, Alturas, for California State Association of Counties and County of San Diego as Amici Curiae on behalf of Plaintiff and Respondent.

Melissa A. Chaitin, Los Angeles, under appointment by the Supreme Court, for Minor.

William Wesley Patton, Costa Mesa, for Whittier Law School Legal Policy Clinic as Amicus Curiae.

Robert C. Fellmeth; Shannan Wilber, San Francisco; Janet G. Sherwood, Corte Madera, and Donna Furth, San Francisco, for Children's Advocacy Institute of the University of San Diego School of Law, Legal Services for Children and the Northern California Association of Counsel for Children as Amici Curiae.

Kenneth P. Sherman, Lisa E. Mandel and Anne E. Fraggasso for Dependency Court Legal Services, Inc., as Amicus Curiae.

BAXTER, J.

In a juvenile dependency appeal from an order terminating parental rights, may the Court of Appeal receive and consider post-judgment evidence that was never before the juvenile court, and rely on such evidence outside the record on appeal to reverse the judgment? The general answer is no, although in the rare and compelling case an exception may be warranted. In this case the Court of Appeal erred in receiving and considering such post-judgment evidence, presented for the first time through the unsworn statements of the minor's appointed appellate counsel in a letter brief, and in further relying on that evidence to reverse the juvenile court's order and judgment terminating parental rights. Accordingly, the judgment of the Court of Appeal must be reversed.

Factual and Procedural Background

Stacy S. (mother) appealed from an order and judgment of the Orange County Juvenile Court terminating her parental rights pursuant to Welfare and Institutions Code section 366.26.¹ The minor, Zeth S., was born in February 1997, and was first taken into protective custody by the Orange County Social Services Agency (agency) on July 2, 1998, at age 17 months. A juvenile dependency petition was thereafter filed by the agency, alleging that the minor's parents had failed to protect and provide support for the minor. (§ 300, subds. (b) and (g).) The grounds alleged in support of the petition included mother's and father's history of alcohol and drug abuse and related incarcerations, the unsanitary conditions of the paternal grandparents' home in which the minor had been left, and the likelihood that father was in violation of his parole. During the incident that culminated in the taking of the child into protective custody, both mother and father were arrested for delaying/obstructing a peace officer in the performance of his duty, with mother additionally charged with assault and battery on a peace officer. After a detention hearing the minor was released to the home and care of his maternal grandfather, Gregory S., pending adjudication and dispositional hearings. Maternal grandfather confirmed that minor's parents were using drugs and would not be permitted to reside in his home.

At the jurisdictional hearing held August 4, 1998, the allegations of the petition were found true and the minor was declared a dependent child of the Orange County Juvenile Court. The minor was ordered to remain in the custody of the maternal grandfather pending a six-month review hearing. (§ 366.21, subd. (e).) At that hearing it was ordered that the minor be continued as a dependent child of the court, that custody of the minor remain with the maternal grandfather, and that previously ordered reunification services continue to be offered to mother and father pending a 12-month review hearing. (§ 366.21, subd. (f).)

In March 1999, pursuant to a stipulation by the parties, the minor was released to mother's custody for a 60-day trial visit. The results were favorable, mother having obtained temporary employment and a subsidized apartment with the agency's assistance. In May 1999, the minor was returned to mother under a court-ordered plan of family maintenance.

In October 1999, however, the agency filed a section 387 supplemental petition for more restrictive placement, alleging that mother had left the minor in the paternal grandparents' unsanitary home for unmonitored visits, without mother present, and on at least one occasion without adequate provisions for the child's care, all in violation of the agency's directives. Supporting statements reflected that mother had entrusted the minor's care to other unauthorized persons at various times, and was hosting drunken parties at her apartment. During one such party a guest had passed out, leading to police intervention and mother's ultimate eviction from the apartment.

In a first amended supplemental petition it was further alleged that father, who had been released from prison, was living in the paternal grandparents' residence, had not completed his court-ordered case plan, and was being permitted unauthorized contacts with the minor by mother. Statements by the maternal grandfather in support of the supplemental petition reflected his belief that at times the minor was "terrified" to be with his mother, that the minor was experiencing a lot of stress, and that his mother was neglecting him.

At the conclusion of the detention hearing on the amended supplemental petition, the minor's out-of-home placement with maternal grandfather was continued, and he again confirmed that mother would not be living in his home while he cared for the minor. In early December 1999, mother moved into a sober living home; within one week she was discharged for infractions of the rules. On December 13, 1999, the allegations of the supplemental petition were found true and the minor continued as a dependent child of the court. A dispositional hearing was held January 13, 2000. The trial court denied further reunification services, found by clear and convincing evidence that return of custody of the minor to mother or father would be detrimental to the minor, and set the matter for a section 366.26 selection and implementation hearing, also sometimes referred to as a termination or permanency hearing (366.26 hearing). The agency report prepared for the 366.26 hearing reflects that from October 25, 1999, until February 28, 2000, mother visited the minor (in maternal grandfather's home) no more than once per week. During the period from February 28 through April 19, 2000, mother did not visit the minor at all. During those periods, mother also refused agency-provided counseling and refused to comply with biweekly drug testing per the court's order. Father remained incarcerated from August 1999 through February 13, 2000. On March 18, 2000, mother and father were arrested for possession of stolen property and illegal drugs. Father's parole agent observed "track marks" on both mother's and father's arms at the time of their arrest, and each admitted to recent heroin use. During those same periods, maternal grandfather reported that the minor was "flourishing" in his care; minor was receiving regular medical attention and had been successfully enrolled in preschool.

The agency's report recommended termination of parental rights and adoption as the permanency plan, indicating it was "very likely that the child will be adopted by his current caretaker Greg [S.]." Mr. S. was divorced from maternal grandmother, Janet F., herself a recovering alcoholic. He was in good health, had no criminal record, was stably employed, and resided with the minor in his two-bedroom apartment. He stated he loved his grandson very much, believed it important for him to adopt the child in order to ensure the child's safety and well-being, and did not believe this could be achieved with either parent, as there was no prospect that either mother or father would be able to care for the minor in the near future. The report further indicated, "[Gregory S.] has stated that he understands that by adopting the child he will be responsible for the child just as if the child was his biological child. The Homestudy worker on this case reports that the caretaker presents [himself] as a mature and responsible individual who clearly understands the responsibilities of adoption."

The agency's report was admitted into evidence without objection at the selection and implementation hearing held May 9, 2000. Father waived his right to be present at the hearing. Mother contested the agency's recommendation that her parental rights be terminated. She admitted her recent heroin use but testified she had a close bond with the minor and claimed she was his primary caretaker during weekend visits at the maternal grand-father's home. Mother testified that during those weekend visits she made lunches for the minor, bathed him, and played with him. Mother acknowledged that she had not visited the minor for significant portions of the preceding months. She further acknowledged that her father never refused to let her see the minor as long as she was sober, but did not permit her to be with the minor when she was under the influence. Mother herself agreed that she did not want to be in the minor's presence when she was...