Modification: In re J.D.

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

SAN FRANCISCO HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

R.T.,

Defendant and Appellant.

A161973

(San Francisco County Super. Court No. JD18-3156)

California Courts of Appeal

First Appellate District

Division Two

Filed October 27, 2021

ORDER MODIFIYING OPINION AND DENYING PETITION FOR REHEARING

[NO CHANGE IN JUDGMENT]

BY THE COURT:

It is ordered that the opinion filed herein on September 29, 2021, be modified as follows:

1. The first two full paragraphs on page 16, beginning "The agency had far less to say" and ending "exclusively during cross-examination," are deleted in their entirety and replaced with the following paragraphs:

With respect to the relationship between mother and son, the agency reported only the following: "[J.D.] has a good relationship with his mother. [J.D.] and [mother] have been having virtual visits since March of 2020. However, because [mother's] family reunification services were terminated back in August of 2020, the Agency will be recommending ongoing virtual visits, every other week, for 30 minutes. [C.J.] has agreed to supervise the virtual visits."

The section 366.26 hearing was conducted by video conference. Only the social worker, who had been assigned to the case for about the past year and a half, testified. Facts pertaining to the beneficial relationship exception were elicited exclusively during cross-examination.

2. The first full paragraph at page 24, beginning "Given the importance of this second stage of analysis," is deleted in its entirety and replaced with the following paragraph:

Given the importance of this second stage of analysis, "social worker assessments and evaluations should address whether or not the children have a substantial, positive, emotional attachment to the parents taking into consideration the child's age, the portion of the child's life spent in parental custody, the positive or negative impact of interaction with the parent, and the child's particular needs as required by Caden C." (B.D., supra, 66 Cal.App.5th at p. 1230, fn. 5; see also In re Autumn H. (1994) 27 Cal.App.4th 567, 575 ["the nature and extent of the particular [parent-child] relationship should be apparent" by the time of the section 366.26 hearing because "[s]ocial workers, interim caretakers and health professionals will have observed the parent and child interact and provided information to the court"].)

3. The second paragraph at page 32, beginning "Moreover, in evaluating the record" and which carries over to page 33, is deleted in its entirety and replaced with the following two paragraphs:

Moreover, in evaluating the record, we cannot overlook the fact the agency provided very little information in its prior reports during the case about the quality of mother's relationship with J.D. or even the nature of her interactions with him during visitation. That was not appropriate and did a disservice to not just mother and J.D. but also the juvenile court. Our colleagues in Division Four have aptly described the critical role that social workers play in our dependency scheme, and the objectivity they must bring to the task: " '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.' " [Citation.] 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. . . . [¶] 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. [Citations.] 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.' [Citation.] 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. [Citation.]" (In re B.D. (2019) 35 Cal.App.5th 803, 821.)

To be clear, it was not the agency's burden to disprove the existence of the beneficial relationship exception---the burden of proof on this issue was squarely on mother. (See Caden C., supra, 11 Cal.5th at p. 629.) Moreover, there is tension in the caselaw concerning the extent to which the agency must address facts pertinent to the beneficial relationship exception in the section 366.26 report itself. We express no opinion here about the adequacy of the agency's section 366.26 report. (See § 366.22, subd. (c)(1)(B) [report must review "the amount and nature of any contact between the child and his or her parents . . . since the time of placement"], § 366.21, subd. (i)(1)(B) [same]; compare B.D., supra, 66 Cal.App.5th at p. 1230, fn. 5 [post-Caden C. decision noting that "social worker assessments and evaluations should address whether or not the children have a substantial, positive, emotional attachment to the parents" to assist court in examining whether parent-child exception applies] with In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1344 [pre-Caden C. decision holding section 366.26 report need not "go beyond a general description of the post-placement contacts between parent and child and into a detailed evaluation about whether the continuance of the relationship manifested by such contacts would be beneficial to the child"].) Our point here is that by the time the juvenile court scheduled the section 366.26 hearing, the agency's prior reports should already have provided objective, disinterested information about the quality of J.D.'s attachment to his mother, which would have assisted the court in evaluating the beneficial relationship exception when mother asserted it. (See In re Autumn H., supra, 27 Cal.App.4th 567 at pp. 575-576; Brandon C., supra, 71 Cal.App.4th at p. 1538 [evidentiary analysis concerning beneficial relationship exception that faults social services agency for failing to provide information about the quality of mother's visitation; "[i]ts reports consistently described the regularity of the visits, with no evaluation of their success"]; see also B.D., supra, 66 Cal.App.5th at p. 1230, fn. 5.)

4. The first sentence of the first paragraph at page 33, beginning "As Caden C. reflects," is modified to replace "parental bond" with "substantial, positive, emotional attachment" so that the sentence now reads:

As Caden C. reflects, the existence of a substantial, positive, emotional attachment is contextual.

5. The first sentence of the second full paragraph at page 43, beginning "First, we are troubled by," is modified to add "the nature of J.D.'s relationship with mother reflected in the visitation logs and" after "given" so that the sentence now reads:

First, we are troubled by the agency's failure in the later stages of the case to consider guardianship as an alternative to adoption given the nature of J.D.'s relationship with mother reflected in the visitation logs and even C.J.'s desire that mother remain in J.D.'s life (an option the agency apparently was open to early on).

6. The next sentence of the same paragraph at page 43, beginning "The social worker simply deferred to C.J.'s preference for adoption," is modified to add ", and did not even bother to read the visitation logs fully when he recommended terminating mother's parental rights" after "without question" so that the sentence now reads:

The social worker simply deferred to C.J.'s preference for adoption over guardianship, without question, and did not even bother to read the visitation logs fully when he recommended terminating mother's parental rights.

7. Insert the following paragraph between the second and third full paragraphs on page 43, after the sentence "But it surely does not appear to have been the product of much deliberation.":

In making this observation, we are not instructing the juvenile court on remand to select guardianship for J.D. over adoption. We also recognize that adoption rather than legal guardianship is statutorily preferred (see Caden C., supra, 11 Cal.5th at p. 631; § 366.26, subd. (b)) and that the burden of proving the beneficial relationship exception rests with the parent. But nothing in the statutory scheme requires the agency to abdicate its duty to objectively assess the facts when fashioning a recommendation to the court. The agency is not required to take the position that the beneficial relationship exception does not apply. In the end, of course, that decision is for the juvenile court. Here, it does not appear the agency ever seriously considered the beneficial relationship exception (and thus, by extension, the prospect of legal guardianship) despite compelling facts in its possession suggesting its potential applicability. (See Amber M., supra, 103 Cal.App.4th at p. 690 [criticizing "perfunctory" evaluation of mother's relationship with children that "instead focus[ed] on her current inability to provide a home for them and on the suitability of the current placements, perhaps swayed by [relatives'] qualifications and willingness to adopt and their refusal to consider guardianship or any other permanent plan"].) We remand for the juvenile court to consider that issue anew in light of Caden C.

8. Insert "Second," at the beginning of the third full paragraph at page 43, beginning "We also note that," so that the paragraph's first sentence now reads:

Second, we also note that some of the agency's later criticisms of mother stemmed from the fact she sometimes mentioned her financial pressures to J.D.

These modifications do not effect a change of the judgment.

The petition for rehearing is denied.

Kline, P.J.