1

Filed 5/24/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

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.

 A155254

 

 (Contra Costa County

 Super. Ct. No. J1600108)

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.

 A155571

 (Contra Costa County

 Super. Ct. No. J1600108)

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

 

1 Further unspecified statutory references are to the Welfare and Institutions Code.
2

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 (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.) 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 
3

finding that Minor was likely to be adopted by Foster Parents J.M. and C.P.—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 

 

2

(See § 366.22, subd. (c)(1).) When we refer to the .26 Report, we mean the .26 

Report as originally filed in this case on May 9, 2018 and as updated in an Addendum 

filed on August 8, 2018, the day of the .26 hearing. 
4

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. 

 

3 The Bureau lodged the 2017 Investigation Report with Judge Hardie at an

October 19, 2018 hearing and, when the social worker testified on October 31, 2018, she 

brought with her and provided to Judge Hardie copies of excerpts of her case notes 

referring to the June 2017 Investigation. Thus, the court had before it detailed 

investigative information generated by the June 2017 Investigation as well as copies of 

the 2017 case notes that the social worker testified she produced in discovery. 

4 Because of the many indications that individuals who were either sex offenders 

or had been victims of sex offenses were or may have been spending time around Minor 

while J.M. and C.P. were caring for him, the composition of the residents in Foster 

Parents’ home was a major focus of the June 2017 Investigation. To address concerns 

raised by the issue of who, exactly, was living in Foster Parents’ home and the sleeping 

arrangements there, the safety plan implemented for Foster Parents in 2017 required them

to commit that they would not allow any other adult besides themselves, or anyone who 

was not specifically designated in their Resource Family Approval certificate, to live in 

their home, and prohibited Minor from sharing a bedroom with any adult. The safety 

plan also designated C.P. as the “responsible party” to provide care and supervision of 

Minor.
5

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 
6

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 wonder why there are headlines about the foster 

care system and about judges who make decisions and child welfare services. This is fuel 

for the fire. . . . [A] judge cannot make smart, appropriate orders and decisions about a 

child’s care without having all the information. And I don’t appreciate being treated like 

a rubber stamp” based on someone’s belief “that I don’t need [this type of] . . .

information and that I should make these orders because you say so. That’s not how it 

works.” 

At the conclusion of the December 5 hearing, Judge Hardie refused to return 

Minor to Foster Parents’ custody, and was even more definitive than she had been earlier, 

finding as follows: “I do find well beyond preponderance of the evidence, I find by clear 

and convincing evidence that removal is in [Minor’s] best interest[,] and therefore, I 

uphold the decision of the [Bureau] and deny the request for return of the child.” She 

closed the hearing with another pointed admonition directed to the Bureau: “[H]ow on 

Earth does [the Bureau] approve for placement a home in which a person’s own parental 

rights have been terminated, he’s been sentenced to state prison for [a] violent offense 

and has three children who are now adults who have sustained allegations of sexual abuse 

against other children? And the [Bureau] knows all this, I’m told. And they know that 

these adults come in and out of the home. . . . [For the Bureau to] utilize that household to 

place children who are in foster care . . . [is] outrageous to me.” Judge Hardie then 
7

turned to Minor’s trial counsel and asked, “Did you know any of this?” The response 

was unequivocal: “No, Your Honor. Not at all.” 

III. DISCUSSION

If we were to resolve these appeals on the record presented to the juvenile court at 

the .26 hearing, focusing solely on whether substantial evidence supports the juvenile 

court’s finding that the beneficial relationship exception under section 366.26, 

subdivision (c)(1)(B)(i) does not apply—the only issue raised in the main briefs—we 

would have no trouble affirming. But proper application of the beneficial parental 

relationship exception involves a fact-bound weighing process (In re Autumn H. (1994) 

27 Cal.App.4th 567, 575), and because Mother’s C.C.P. section 909 motion casts doubt 

on the integrity of the record the juvenile court relied upon both in making the predicate 

finding that Minor was adoptable and in undertaking the weighing process to apply the 

parental benefit exception, the additional evidence Mother proffers,5if we consider it, 

 

5 Mother’s C.C.P. section 909 motion attaches eight exhibits filed post-termination 

in Minor’s case, consisting of a minute order filed September 19, 2018 following a 

hearing on the Bureau’s petition for emergency removal of Minor from Foster Parents’ 

home (Exhibit A); a minute order filed October 19, 2018 following a hearing on Foster 

Parents’ objection to the removal of Minor from their home (Exhibit B); a Memorandum 

to Judge Hardie dated October 16, 2018, co-authored by the social worker’s supervisor 

and by the Bureau’s lead investigator for out-of-home investigations (Exhibit C); a 

minute order filed October 31, 2018 following a continued hearing on Foster Parents’ 

objection to the removal of Minor from their home (Exhibit D); a minute order filed 

November 14, 2018 following a continued hearing on Foster Parents’ objection to the 

removal of Minor from their home (Exhibit E); the Court Appointed Special Advocate’s 

(CASA) Post-Permanency Report and Recommendation to the Juvenile Court of Contra 

Costa County filed January 16, 2019 (Exhibit F); the Bureau’s Post-Permanency Status 

Review filed January 16, 2019 (Exhibit G); and a minute order filed January 16, 2019 

following the six-month post-permanency status review (Exhibit H). 

Mother was no longer allowed to participate in the proceedings in Minor’s 

dependency post-termination and thus did not have access to any transcripts of the 

hearings referenced in her Exhibits A through H, or any of the documentary evidence 

considered by the court at those hearings. As a result, while the exhibits she proffers 

highlight the major developments in the case post-termination, they give us limited 

information about why Judge Hardie entered the orders she did. To clarify that, on our 
8

fundamentally changes the character of what we must decide. To flesh out how things 

change, we directed the parties to address the following three issues in supplemental 

briefing and at oral argument.

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 J.M. and C.P.

(collectively, 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), 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 Code of Civil Procedure section 128, 

subdivision (a)(8) and reverse summarily, but that raises the question: Should we do so 

here? 

 

own motion we directed that the following supplemental materials be lodged with this 

court: (1) transcripts of hearings dated October 19, 2018, October 31, 2018, November 

14, 2018, December 5, 2018, January 16, 2019, and February 13, 2019, (2) the 2017 

Investigation Report that was provided to the juvenile court at the October 19, 2018 

hearing, and (3) the social worker’s case notes that were provided to the juvenile court at 

the October 31, 2018 hearing. (See fn. 3, ante.) 
9

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. 
10

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 court for its consideration.’ [Citation.] This rule reflects an 

‘essential distinction between the trial and the appellate court . . . that it is the province of 

the trial court to decide questions of fact and of the appellate court to decide questions of 

law . . . .’ [Citation.] The rule promotes the orderly settling of factual questions and 

disputes in the trial court, provides a meaningful record for review, and serves to avoid 

prolonged delays on appeal. ‘Although appellate courts are authorized to make findings 

of fact on appeal by Code of Civil Procedure section 909 and [rule 8.252] of the 

California Rules of Court, the authority should be exercised sparingly. [Citation.] 

Absent exceptional circumstances, no such findings should be made.’ ” (Zeth S., supra, 

31 Cal.4th at p. 405.)

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 Zeth’s

best interest. (Zeth S., supra, 31 Cal.4th at pp. 403–404.) Based on unsworn statements 

in that letter, it was argued, there had been a change in circumstances, warranting reversal 

of the termination order and remand for a new .26 hearing. (Id. at p. 404.) Addressing 

the question whether it is permissible in a dependency appeal from an order terminating 

parental rights to “consider postjudgment evidence that was never before the juvenile 

court, and [to] rely on such evidence outside the record on appeal to reverse the 

judgment,” our Supreme Court held that “the general answer is no,” although “in the rare 

and compelling case an exception may be warranted.” (Id. at pp. 399–400.)
11

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.) In 

that case, In re Elise K. (1982) 33 Cal.3d 138 (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, 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.) 

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 section 366.26, subdivision (i)(3), enacted by 

amendment in 2005,6 which provides that “[a] child who has not been adopted after the 

passage of at least three years from the date the court terminated parental rights and for 

whom the court has determined adoption is no longer the permanent plan may” seek 

reinstatement of parental rights by section 388 petition, thereby giving the child, 

according to the Bureau, an “avenue to review postjudgment changes in circumstances 

affecting [his] adoptability.” 

We do not agree that that is an adequate remedy for Minor. Perhaps it could be 

for a child who was determined to be generally adoptable, but it is not here. Whether a 

 

6 Statutes 2005, chapter 634, section 2. 
12

child is likely to be adopted is the “pivotal question” at a section 366.26 hearing (In re 

Tamneisha S. (1997) 58 Cal.App.4th 798, 804) and it is a question on which the child 

welfare agency carries the burden of proof (In re Brian P. (2002) 99 Cal.App.4th 616, 

623). Section 366.26, subdivision (c)(1) provides, in relevant part, that “[i]f the 

[juvenile] court determines based upon the [adoption] assessment . . . and any other 

relevant evidence, by a clear and convincing standard, that it is likely the child will be 

adopted, the [juvenile] court shall terminate parental rights and order the child placed for 

adoption.” In determining the child’s adoptability, the court must focus on the child —

“whether the child’s age, physical condition, and emotional state” lends him or her to 

finding an adoptive family. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061 (Carl R.).)

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.) 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 

(David H.); see In re Sarah M. (1994) 22 Cal.App.4th 1642, 1650 [“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; In re G.M. (2010) 181 Cal.App.4th 552, 562.) 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.) 

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 
13

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, and nonetheless were 

committed to adopting him. Thus, as Judge Hardie pointed out at the October 31, 2018 

hearing, she found Minor adoptable “because he was in a home with committed 

caregivers who wanted to adopt him.” (Italics added.) It is always critical to make an 

accurate determination of adoptability at a .26 hearing, but it is particularly critical in a 

specific adoptability case. 

Taking a “let’s wait-and-see” attitude towards Minor’s adoptability for three years 

may, in fact, serve to compound the error. We are told Minor has shown resilience and 

adjusted well in the emergency foster placement where he was sent after his removal 

from Foster Parents’ home, but his caregivers there have made clear they have no 

interest in adoption. As a result, there is some possibility here that the Bureau 

mistakenly put Minor “in the position of having neither a parent nor a prospect of 

gaining one through adoption” (Elise K., supra, 33 Cal.3d at p. 148 (conc. opn. of Bird, 

C.J.)), thus effectively rendering him a legal orphan, an outcome the law abhors.7 If 

Minor now has no realistic prospect for adoption—a matter that can only be determined 

at a new .26 hearing, on a fuller record—putting off a review of his adoptability for 

several years would be the opposite of the permanence and stability the statutory scheme 

seeks to bring about. 

Accordingly, we will grant Mother’s motion to receive additional evidence on 

appeal under the Elise K. exception to the rule handed down in Zeth S. In light of the 

parties’ stipulation that “subsequent events” after the .26 hearing in this case have

“undermined the juvenile court’s finding that [Minor] was likely to be adopted,” and their 

stipulation to reversal on that ground, we conclude that this is one of those “rare and 

 

7 Carl R., supra, 128 Cal.App.4th at page 1062, footnote 6; In re Jayson T. (2002) 

97 Cal.App.4th 75, 85, disapproved on other grounds in Zeth S., supra, 31 Cal.4th at 

pages 413–414.
14

compelling case[s]” (Zeth S., supra, 31 Cal.4th at p. 399) “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.)8 Having 

concluded the Elise K. exception to Zeth S. applies, we have no occasion to reach the 

further issue whether a writ of error coram vobis is warranted in this case. 

B. We Decline to Accept the Stipulated Reversal as the Basis For Resolving 

These Appeals

“[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 sentence the following language: ‘An appellate court 

shall not reverse or vacate a duly entered judgment upon an agreement or stipulation of 

the parties unless the court finds both of the following: [¶] (A) There is no reasonable 

possibility that the interests of nonparties or the public will be adversely affected by the 

reversal. [¶] (B) The reasons of the parties for requesting reversal outweigh the erosion 

of public trust that may result from the nullification of a judgment and the risk that the 

availability of stipulated reversal will reduce the incentive for pretrial settlement.’ (Stats.

1999, ch. 508, § 1.)” (Hardisty v. Hinton & Alfert (2004) 124 Cal.App.4th 999, 1005

(Hardisty).)

“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

 

8 Having granted Mother’s C.C.P. section 909 motion, we take judicial notice of 

the transcripts of the post-termination hearings that took place in this case on October 19, 

2018, October 31, 2018, December 5, 2018, January 16, 2019, and February 13, 2019. 

(Evid. Code, §§ 459, 452, subd. (d).) We also take judicial notice of the 2017 

Investigation Report and the social worker’s 2017 case notes, since they were presented 

to and considered by the juvenile court at those hearings (ibid.) and they “help complete 

the context of this case.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 306, fn. 2; see fn. 3, 

ante.) 
15

[] (Neary). (Muccianti v. Willow Creek Care Center (2003) 108 Cal.App.4th 13, 19 [ ].) 

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.) 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.)

“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 by promulgating [former] local rule 8 [(Ct. App. First. Dist., Local Rules, former 

rule 8, now codified as rule 4 (local rule 4); see also Ct. App. First. Dist., Proposed Local 

Rules, rule 10, scheduled to take effect in summer 2019)], which was designed to call the 

attention of counsel to the nature of the disclosure required of parties seeking stipulated 

reversal.” (Hardisty, supra, 124 Cal.App.4th at p. 1007.) Among other things, “Local 

rule [4] . . . make[s] explicit a requirement implicit in subdivision (a)(8) of section 128: 

the duty of counsel for parties to a joint motion for stipulated reversal to affirmatively 

demonstrate a basis for each of the three findings required to be made by the statute.” 

(Hardisty, at p. 1008.)

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 
16

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 rule 4 in a joint 

application. But we do not agree with the suggestion in the parties’ application that 

acceptance of a stipulated reversal “poses no risk that the public trust in the judiciary will 

be eroded[.]”

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 it—had 

obstructed her ability to discharge her judicial responsibilities. Not only do we share 

Judge Hardie’s concerns about the insidious effect of inaccurate and incomplete 

disclosure by child welfare agencies in the section 366.26 process, but we believe it is 

important to explain—using this case as an instructive example—how fundamentally 

inconsistent it is with the statutory scheme. 
17

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 (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.) 

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 

others at the agency, including counsel. (See Elene H. v. County of Los Angeles (1990) 

220 Cal.App.3d 1445, 1452; Seiser & Kumli, supra, § 2.63[1], p. 2–259.) But unlike 

counsel for the agency, social workers are not advocates in the adversarial sense. Social 

workers make recommendations, but because their professional role is best described as 

that of a “disinterested part[y],” their reports to the court must have the characteristics of 

“objectivity and expertise.” (In re Malinda S. (1990) 51 Cal.3d 368, 377, superseded by 

statute on another point as stated in People v. Otto (2001) 26 Cal.4th 200, 207.) In fact, 

it is the recognized professional objectivity of social workers, and the “trustworthiness” 

and “reliability” of their work, that justifies the admissibility of their reports in 

dependency proceedings, despite the layers of hearsay these reports typically contain. 
18

(Ibid.)

The need for objective reporting from the social welfare agency is nowhere more 

important than at the permanency planning hearing under section 366.26. “Whenever a 

court orders that a hearing pursuant to Section 366.26 . . . shall be held, it shall direct the 

agency supervising the child and the county adoption agency . . . to prepare an 

assessment that shall include” detailed and specific information bearing on the issue of 

adoptability. (§ 366.22, subd. (c)(1) [reports required for .26 hearings set at 18-month 

permanency review hearings].)9 Such a report must analyze “the likelihood that the 

child will be adopted if parental rights are terminated” (§ 366.22, subd. (c)(1)(F)) and 

provide a “preliminary assessment of the eligibility and commitment of any identified 

prospective adoptive parent or legal guardian, particularly the caretaker” (id., subd. 

(c)(1)(D)).10 Among the required information for a such a preliminary assessment is “a 

social history including screening for criminal records and prior referrals for child abuse 

or neglect[.]” (§ 366.22, subd. (c)(1)(D).)

Here, the task fell to the social worker to prepare and file a full, fair and evenhanded pre-adoption study prior to the .26 hearing revealing all information specified in 

section 366.22, subdivision (c)(1)(D). The Bureau makes no serious attempt to contend 

that what she filed complied with that obligation. While allowing it might be argued, at 

worst, that the .26 Report was “weak and did not fully meet all statutory reporting 

requirements,” the Bureau contends the omissions in the .26 Report were not material to 

the outcome. At the October 31, 2018 hearing, the Bureau argues, all Judge Hardie said 

was that in light of the newly revealed information bearing on adoptability she “would 

 

9 See sections 361.5, subdivision (g)(1) (reports required for .26 hearings set at 

disposition hearings after denial of reunification services), 366.21, subdivision (i)(1) 

(reports required for .26 hearings set at six-month review hearings or at 12-month 

permanency hearings) and 366.25, subdivision (b)(1) (reports required for .26 hearings

set at 24-month subsequent permanency review hearings). 

10 See sections 361.5, subdivision (g)(1)(D), 366.21, subdivision (i)(1)(D) and 

366.25, subdivision (b)(1)(D).
19

have had a more difficult time making certain findings about adoptability,” not that she 

would have reached a different result. We cannot agree that this shows the outcome 

would have been the same had the 2017 Investigation been revealed in the .26 Report. It 

is abundantly clear based on Judge Hardie’s more definitive comments on December 5—

after an evidentiary hearing spanning three hearing days—that she never would have 

found Minor to be specifically adoptable had she known the true facts.

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 that Father’s sister, Aunt T., filed two 

declarations making derogatory allegations against J.M. in an unsuccessful change-ofcustody application. According to the Bureau, all parties were aware of plenty of 

information that cast into doubt Foster Parents’ eligibility to adopt—some of it already 

known to the court—yet neither Parents nor Minor chose to pursue the issue.

11 This is, in 

 

11 The Bureau argues that “[w]hile the . . . social worker should have included the 

information regarding the prospective adoptive parents’ criminal and child welfare 

history[,] . . . it should also be noted the underlying purpose of requiring this history in 

the preliminary assessment was met as the prospective adoptive parents had been 

approved as [a resource family] after a vigorous application process.” In support of this 

contention, the Bureau advances a somewhat convoluted explanation, premised on the 

idea that “the preliminary assessment report was intended as a precursor to an approved 

homestudy report which was the vehicle for adoption prior to the changes that took place 

effective January 1, 2017 that dramatically changed the approval process for ‘resource 

families[]’ ” under section 16519.5, subdivision (d). According to the Bureau, “section 

16519.5(d) defines the resource family as an individual or family that has successfully 

met both the home environment assessment standards and the permanency assessment 

criteria.” Quoting from the Seiser & Kumli treatise, the Bureau then tells us “ ‘[t]he 

permanency assessment will replace the adoption homestudy.’ ” It is indeed true that 

section 16519.5, subdivision (d), introduced a new, streamlined process for approval of 

resource families. (See Seiser & Kumli, supra, § 2.127[9], p. 2–476 [“The goal of this 

revised approval process is to offer a unified, family friendly, and child-centered approval 

process for all families seeking to care for children including those homes seeking 

guardianship or adoption [citation]. . . . Previously, the approval process was different for 

each type of placement.”].) But these changes in the administrative vetting process for 

resource families do not relieve child welfare agencies of the obligation to comply with 

their statutory reporting obligations to the juvenile court, as the Bureau implicitly 
20

effect, a waiver argument. (In re Dakota S. (2000) 85 Cal.App.4th 494, 502.) But while

it is typically true that “ ‘points not urged in the trial court cannot be raised on appeal[,]

[citation] [t]he contention that a judgment is not supported by substantial evidence . . . is 

an obvious exception to the rule.’ ” (In re Brian P., supra, 99 Cal.App.4th at p. 623.) 

Without the social worker’s flawed .26 Report, we see no substantial record evidence to 

support an adoptability finding, whether viewed as an express finding of special 

adoptability or an implied finding of general adoptability. By affirming, we would be 

relieving the Bureau of its burden of proof and allowing an order unsupported by 

substantial evidence to stand. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561.)

In general, “[w]here an investigative report is required prior to the making of a 

dependency decision, and it is completely omitted, due process may be implicated 

because a cornerstone of the evidentiary structure upon which both the court and parents 

are entitled to rely has been omitted.” (In re Crystal J. (1993) 12 Cal.App.4th 407, 413, 

original italics (Crystal J.).) Conversely, “[w]here . . . the assessment report is prepared, 

is available to the parties in advance of the noticed hearing, and does address the 

principal questions at issue in the particular proceeding, errors or omissions in the report 

cannot be characterized in terms of denial of due process.” (Ibid., original italics.) Given 

the complete omission of a mandatory component of the .26 Report under section 366.22, 

subdivision (c)(1)(D), we conclude there was a statutory violation here, at least. 

Normally, for pure state law error, we evaluate prejudice under People v. Watson (1956) 

46 Cal.2d 818, 836 (Watson), which places the burden on an appellant to show a 

reasonable probability she would have achieved a more favorable outcome absent the 

error. Although we can say for sure that the issue of special adoptability would have 

been decided differently absent the error here, we cannot know what would have 

happened had the issue of general adoptability been adjudicated. Because the outcome 

 

concedes in acknowledging that “the social worker should have included” information 

required by section 366.22, subdivision (c)(1)(D) in the .26 Report. It is simply not the 

case that the “underlying purpose” of this reporting obligation “was met” simply because 

the appropriate administrative vetting for Foster Parents as a resource family had been 

done. 
21

there is wholly within the realm of speculation, the correct prejudice analysis comes 

down to who bears the risk of error on appeal. And to decide that, we must determine 

whether we are dealing with error of federal constitutional magnitude. 

2. Due Process Violation

Was the Bureau’s violation of section 366.22, subdivision (c)(1)(D) so egregious 

as to rise to the level of a denial of due process? Parents, joined by Minor, say that it 

was. We answer the question no as to Parents, but yes as to Minor.12

Starting with Parents first, their parental unfitness had already been adjudicated by 

the time the case reached the permanency plan selection stage. Thus, going into the .26 

hearing, their fundamental liberty interest in the care, custody and control of Minor was 

attenuated. Their only chance at preserving a legal bond to Minor at that point turned on 

the beneficial parental relationship exception, an issue on which they bore the burden of 

proof. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372–1373.) Moreover, Parents 

were in an adverse position to the Bureau, as they had been throughout the proceeding, 

and they contested the Bureau’s proposed recommendations and findings at the .26 

hearing. Nothing stopped them from cross-examining Foster Parents or the social 

worker, or from putting on any evidence they wished to present. 

The Bureau contends that, at the .26 hearing, it did nothing to prevent Parents 

from having a fair opportunity to litigate adoptability or any other issue, had they chosen 

to do so. Instead, they elected to submit on the .26 Report. While the information in the 

social worker’s case notes may have been limited and Aunt T.’s declarations may have 

been conclusory and unsubstantiated, the Bureau points out that “even without the 

complete history it is clear that the parties possessed enough evidence of [J.M.’s] 

criminal and child welfare history to mount a possible legal impediment challenge, not 

only regarding this history but also to the marital status of the prospective adoptive 

 

12 Minor’s appointed appellate counsel, in addition to joining the parties’ 

stipulation to reversal of the order terminating parental rights, filed a brief urging reversal 

and remand for a new .26 hearing on the ground the juvenile court’s adoptability finding 

has been undermined. We construe this brief as a joinder in Parents’ appeal to the extent 

it seeks reversal of the .26 order. 
22

parents.” “At the very least,” the Bureau argues, “the parties had enough evidence to 

request additional discovery[.]” (See Cal. Rules of Court, rule 5.546(c), (d) [agency’s 

discovery obligations in § 300 proceedings], and (f) [motions to compel discovery].)

David H., supra, 33 Cal.App.4th 368, 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.) On appeal of the order terminating his parental 

rights, the father argued, among other things, extrinsic fraud (id. at p. 384), 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 [“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,
23

[citation] or for any other reason, including intentional misrepresentations concerning the 

potential placement.” (David H., supra, 33 Cal.App.4th at pp. 384–385.)

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.) “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.) 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. (In re Cristella 

C., supra, 6 Cal.App.4th at p. 1370.) “Instead of a bleak future in foster care limbo on 

the one hand, and return to a possibly abusive household on the other, the likelihood of 

adoption effectively realigns the consequences of an erroneous decision in termination 

proceedings: The alternatives are now life with a stable family who have already 

sacrificed for the sake of the child’s well-being versus life with . . . parent[s] to whom 

return of the child has been repeatedly shown to be detrimental.” (Ibid.)

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, 
24

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) and to place complete faith in 

its expert analysis of his adoptability. Thus, going into the .26 hearing, Minor, unlike 

Parents, had no incentive to probe or challenge the Bureau’s litigating position, and at the 

hearing he elected not to contest any of the Bureau’s proposed recommendations or 

findings.

Mindful of Minor’s vulnerable position going into the .26 hearing, we apply

Crystal J., supra, 12 Cal.App.4th at page 413—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 

(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.) 
25

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

it is unclear whether the prejudice test is that of harmlessness beyond a reasonable doubt 

(Chapman v. California (1967) 386 U.S. 18, 24; see In re Mark A. (2007) 156

Cal.App.4th 1124, 1144–1146) or by clear and convincing proof (see Denny H. v. 

Superior Court (2005) 131 Cal.App.4th 1501, 1514–1515; In re Meranda P. (1997) 56 

Cal.App.4th 1143, 1157, fn. 9). We need not wade into this nuanced debate over the

standard of review, for under either approach, unlike under Watson, the burden is on the 

Bureau to show harmlessness, and on this record that burden has not been met. We 

cannot be sure beyond a reasonable doubt, or by clear and convincing proof, that Judge 

Hardie would have found Minor adoptable had the Bureau filed a fully compliant section 

366.22, subdivision (c)(1) report. Given the preference for adoption, perhaps she would 

have done so by finding Minor generally adoptable. Or perhaps she would have opted for 

a permanent plan other than adoption. 

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. She observed: “Could 

you say, generally, that [Minor] is, by clear and convincing evidence, likely to be 

adopted? [¶] I don’t know. I’m not so sure. [¶] . . . [T]he Court may have viewed his 

safety and situation differently than the [Bureau]. And I think the Court should have 

been given that opportunity to make that assessment. [¶] I think his Attorney should 

have been given the information to make whatever arguments that she might have wanted 

to make on his behalf.” With those comments, Judge Hardie captured the nub of it. The 

.26 hearing in this case took place nearly 10 months ago, which was 31 months after 

Minor’s original detention. By withholding evidence material to the determination of 

adoptability, the Bureau, in effect, added what will likely be another year onto the 

timetable before Minor’s permanency is decided. That is regrettable, but it is also 

unavoidable. 

IV. CONCLUSION AND DISPOSITION

The .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 
26

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.
27

_________________________

STREETER, ACTING P.J.

We concur:

_________________________

TUCHER, J.

_________________________

BROWN, J.

A155254, A155571
28

A155254, A155571/In re B.D.

Trial Court: Contra Costa County Superior Court

Trial Judge: Hon. Rebecca C. Hardie

Counsel:

Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and 

Appellant J.D.

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