It's fairly rare for the California Supreme Court to order publication of an opinion of the Court of Appeal. As we all know, its orders typically go the other way: depublication. So when it orders an opinion published, I generally stand up and take notice.
And this one doesn't disappoint. Justice Reardon's opinion was indeed worthy of publication. It concerns an important and relatively pervasive practice: the delay of 12-month review hearings (in child guardianship cases) until the mandatory 18-month review deadline, as well as the associated change in the substantive and procedural standards applicable to that hearing. So it is an important issue. Moreover, it also expressed the Court of Appeal's critical view of another pervasive -- and deleterious -- practice in such cases: the reading by counsel of what a witness "would" say at a hearing, followed by the "adoption" of that summary by the witness ("Yep, that's what I'd say."), in lieu of actual testimony. Justice Reardon criticizes this allegedly "economical" practice -- which is fairly common in these types of cases -- as improper both as a matter of doctrine and as a means of getting to the truth. His opinion on this point is an independent reason for publication. Plus, I must say, the opinion is both well-written and cogently reasoned throughout. Definitely a valuable addition to the list of published opinions by the Court of Appeal.
So I was glad to see the California Supreme Court step in on this one and order publication. Indeed, my only critique of Justice Reardon -- who I don't believe I've ever heretofore discussed in this blog -- is that he needs to be less modest. If he's regularly leaving decisions like these unpublished, he needs to rethink his practice. We'd all benefit from more precedent like this, not less. So publish, publish, publish.
P.S. - The underlying facts of the case are also worth reading, though heartbreaking. Denny is the father of two girls, Jennifer (12) and Amanda (10). The girls were taken from their mother (presumably for good reasons) when they were 3 and 1, respectively, and placed with their father a couple of years later. The family then moved around a lot, eventually ending up in San Francisco, where the father was eventually arrested for public intoxication and the girls taken into protective custody. Because, the police report says, the father begged the officers to take them, saying that he was tired of caring for them. And the girls were dirty, smelled of urine, had not attended schools for months, and thought that all of this was their fault. The kind of stuff that makes you grimace at the occasional horror of being a child.
But there's stuff on the other side too. After the girls are taken away, the father makes real efforts to get things together, visits his daughters in Oregon, and really does seem to have an attachment to them. But the father is still an alcoholic, and homeless. With all the resulting complexities and impact on his children. So what is one to do? Let him have custody? Take away his kids forever? Keep the case in limbo? There's no real solution to the problem. None of the options really make me happy, nor do any of them make me at all confident that the children will receive the love and caring and attention that every child deserves. Another heartbreaking set of underlying facts, alongside the continuing problem of many cases in this area.
