C.C. v. Superior Court CA1/1

Filed 9/10/20 C.C. v. Superior Court CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

C.C.,
Petitioner,
A160270
v.
SUPERIOR COURT FOR THE CITY (San Francisco City & County
AND COUNTY OF SAN Super. Ct. No. JD153034)
FRANCISCO,
Respondent;

SAN FRANCISCO HUMAN
SERVICES AGENCY et al.,
Real Parties in Interest.

In this juvenile writ proceeding, C.C. (mother) seeks extraordinary
relief from the juvenile court order setting a second permanency planning
hearing for her son, Caden C., pursuant to section 366.26 of the Welfare and
Institutions Code.1 In February 2018, at the first permanency planning
hearing in this matter, the juvenile court found Caden adoptable but declined

All statutory references are to the Welfare and Institutions Code
1

unless otherwise specified. All rule references are to the California Rules of
Court.

1
to terminate parental rights, citing the beneficial relationship between Caden
and mother. At a postpermanency review hearing held in April 2019, the
juvenile court set a second hearing pursuant to sections 366.3 and 366.26 to
reconsider a permanent plan of adoption for the minor. Mother argues that
this was error because “nothing had really changed” in the intervening 14
months since a beneficial relationship had been found. We disagree and deny
the petition.
BACKGROUND
A detailed history of these extended juvenile dependency proceedings
can be found in our prior opinions in this matter, and we will not repeat it
here. (See In re Caden C. (2019) 34 Cal.App.5th 87, review granted July 24,
2019, S255839 (Caden C. I); In re Caden C. (May 22, 2020, A158063)
(Caden C. II) [nonpub. opn.]; C.C. v. Superior Court (Aug. 28, 2017, A151400)
(C.C.) [nonpub. opn.].)2 As stated above, the juvenile court declined to
terminate mother’s parental rights at the first permanency planning hearing
in February 2018, relying on the beneficial relationship exception to adoption.
The minor’s caregiver, Ms. H., was unwilling to proceed with legal
guardianship due to concerns that mother’s ongoing disruptive behaviors
would negatively impact both her family and Caden’s stability. Recognizing
Caden’s bond with Ms. H. and the importance of the placement to Caden’s
well-being, the Agency recommended an interim plan of long-term foster care,

2 We grant the July 2020 request from the San Francisco Human
Services Agency (Agency) that we take judicial notice of certain juvenile court
documents from the appellate record in Caden C. II. (See Evid. Code, §§ 452,
subds. (a) & (d)(1), 459, subd. (a).) For a more complete understanding of the
procedural posture of the case, we also grant the Agency’s request that we
take judicial notice of the juvenile court’s recent minute order of June 24,
2020. (See ibid.) Finally, on our own motion, we take judicial notice of our
prior opinions in this matter. (See ibid.; see also People v. Woodell (1998)
17 Cal.4th 448, 458–459.)

2
while pledging to pursue a more secure permanent plan for the minor in
Ms. H.’s home.
After the juvenile court adopted the Agency’s recommendation, both
Caden and the Agency appealed. In April 2019, we reversed the juvenile
court’s permanency planning orders, holding that the juvenile court had
abused its discretion in concluding, on this record, that the strength and
quality of Caden’s relationship with mother in a tenuous placement
outweighed the benefits of a permanent adoptive home. (Caden C. I, supra,
34 Cal.App.5th 87, 107–116.) The matter is currently pending before the
Supreme Court, which will consider the proper scope of the beneficial
parental relationship exception to adoption.
In the meantime, proceedings continued in the juvenile court. In
September 2018, the court held a six-month postpermanency review for
Caden. Caden was happy living with Ms. H. and was integrated into the
family. Ms. H. was reconsidering becoming Caden’s legal guardian. Mother
and Caden visited monthly in a supervised setting. While the visits were
reported to be generally positive, concerns arose regarding inappropriate and
excessive gift giving which caused conflict in Ms. H.’s household. The court
continued Caden in long-term foster care with a goal of legal guardianship.
In advance of the 12-month postpermanency review, the Agency filed a
report detailing a host of disruptive behaviors by mother, including refusing
to follow the rules with respect to gift giving, expressing disapproval to
Caden regarding his current medication and therapist, suggesting to Caden
that he should intervene in the court process on her behalf, sending
demanding and hostile texts to Ms. H. about attending a soccer game, and
calling Ms. H. on a blocked number to lobby for guardianship over adoption.
Given this ongoing conflict, Ms. H. was no longer open to guardianship but

3
indicated her desire to adopt Caden and make him an official member of the
family. The Agency expressed concern to the court that, although Ms. H.
clearly loved Caden, mother’s behavior toward the caregiver could disrupt the
minor’s permanency in her home. Noting that Caden had been in foster care
for many years and was thriving in his current placement, the Agency
recommended that another section 366.26 hearing be set so that the juvenile
court could again consider adoption as Caden’s permanent plan.
At the 12-month postpermanency hearing in March 2019, mother’s
attorney questioned the authority of the juvenile court to set a second
permanency planning hearing under the circumstances of the case, and the
court continued the matter to allow briefing on the issue. At the continued
hearing on April 9, mother’s attorney argued the juvenile court’s previous
finding rejecting adoption based on the beneficial relationship exception
made conducting a new permanency planning hearing improper under
theories of collateral estoppel and res judicata. He further asserted that the
record failed to disclose changed circumstances sufficient to support setting
such a hearing.
Rejecting mother’s arguments, the juvenile court set a new permanency
planning hearing for July 31, 2019. That same day, we issued our opinion in
Caden C. I, reversing the juvenile court’s February 2018 decision to forgo
adoption for Caden and directing that a new permanency planning hearing
be held. (See Caden C. I, supra, 34 Cal.App.5th at pp. 115–116.) On
April 12, mother filed a notice of intent to file a writ petition challenging the
juvenile court’s April 9 setting order. However, for reasons that are unclear,
the notice was not forwarded to this court for 14 months, and it appears that
no action was taken by the superior court clerk to prepare the record or notify
counsel of the filing. (See rule 8.450(g) & (h).)

4
 On June 13, 2019, the juvenile court held a hearing on the status of the
remittitur in Caden C. I at which it “confirmed and maintained” the
previously set permanency planning hearing date of July 31. The Agency
filed reports in advance of the scheduled hearing recommending a permanent
plan of adoption. In addition, the Agency noted mother’s ongoing difficulty
with following the visitation rules, which caused stress for the foster family
and Caden around visits. At one visit, mother gave Caden her email address
and explained how he could find her on Facebook, even though such
unsupervised contact was not permitted. For his birthday the following
month, mother gave the minor a Chromebook, a bicycle, and other items.
The Chromebook caused conflict in the foster home due to house rules
restricting internet access. Both professionals consulted by the Agency,
including the minor’s therapist, recommended that visits be reduced to lessen
their impact on Caden.
On July 24, 2019, the Supreme Court granted review in Caden C. I. At
the permanency planning hearing on July 31, 2019, the juvenile court
continued the permanency issue for a progress report in light of the Supreme
Court’s grant of review. However, it ordered a reduction in visitation with
Caden from monthly to once every other month due to mother’s destabilizing
behaviors. In doing so, the court concluded that “ ‘it is highly unlikely that
Mother is going to be able to follow the rules no matter what they are and
however she is admonished by the Court.’ ”3
Progress reviews were held in October and December 2019 at which
everything remained stayed, and the permanency planning hearing was
continued to March 2020. In advance of the March hearing, the Agency filed

3 Mother appealed from this reduction in visitation, and in May 2020,
we affirmed the juvenile court’s order. (See Caden C. II, supra, A158063.) .

5
an addendum report, noting that mother continued to push the boundaries at
visits by bringing unapproved gifts, asserting that Caden continued to receive
excellent care in his foster placement, and renewing its request that parental
rights be terminated so that Caden could be adopted. On March 19, the
matter was continued to April 22 with the agreement of the parties in light of
the public health emergency caused by the COVID-19 pandemic. (See
generally Gov. Code, § 68115.) The Agency was given discretion to facilitate
a supervised phone/Skype visit between mother and Caden so long as mother
did not promise gifts or discuss court proceedings.
At the hearing on April 22, 2020, the juvenile court rejected mother’s
continuing objection to Caden’s medication, finding it beneficial in that there
were no side effects and it helped the minor focus. It set the permanency
planning hearing for May 27, 2020 and otherwise continued the matter to
April 29 for Title IV-E review findings. (See In re Joshua S. (2007)
41 Cal.4th 261, 267, fn. 3 [“Title IV-E of the Social Security Act (42 U.S.C.
§ 670 et seq.) establishes a cooperative assistance program under which
counties provide payments to foster care providers on behalf of qualified
children in foster care, using a combination of federal, state, and county
funds.”].) At the April 29 hearing, the court found Caden’s placement
appropriate, concluded the Agency had complied with the case plan, noted
the second permanency planning hearing had been continued several times
due to the pending appeal, and opined that the likely date for finalizing the
minor’s permanent plan was at the May 27 hearing.4
On May 8, 2020, mother filed a petition for writ of supersedeas in the
Supreme Court seeking a stay of the permanency planning hearing, which

4 Mother’s appeal from the juvenile court’s orders of April 22 and 29,
2020, is currently pending before this court. (In re C.C., A160213.)

6
the high court denied on May 22. On that same day, we issued our decision
in Caden C. II, affirming the juvenile court’s July 2019 reduction in mother’s
visitation. (Caden C. II, supra, A158063.) At the continued permanency
planning hearing on May 27, 2020, mother requested a contested hearing and
indicated she would be seeking a bonding study and requesting a stay of the
proceedings. The court set the contested review hearing over three dates in
September and October 2020 and continued the bonding study and stay
requests to June 24. On June 3, 2020, mother’s notice of intent to file a writ
petition in the instant proceedings was transmitted to our court by the
superior court clerk. On June 24, the juvenile court granted mother’s request
for a bonding study but denied her request for a stay. The contested
permanency planning hearing is currently scheduled to begin on
September 30, 2020.
DISCUSSION
Before reaching the merits of the petition, we first address the Agency’s
contention that mother has waived or otherwise abandoned her challenges to
the juvenile court’s setting order by failing to press them when it was clear
that her notice of intent was not being processed in the court below. The
Agency argues that mother had many opportunities to alert the superior
court clerk and the parties of her intention to proceed with the writ petition
despite this unexplained delay, yet failed to do so even while appealing the
visitation order entered at the first calling of the permanency planning
hearing in July 2019 and litigating her May 2020 petition for writ of
supersedeas in the Supreme Court. Emphasizing that the extraordinary writ
process under section 366.26 is intended to allow appellate courts to hear and
resolve promptly any claims of error in a juvenile court’s setting order, the

7
Agency maintains that mother should be deemed to have abandoned her
petition by acquiescing to its 14-month processing delay.
We are sympathetic to the Agency’s position. However, mother timely
filed her notice of intent and was not required to file her corresponding writ
petition until 10 days after she was notified by the reviewing court clerk that
the record had been filed, an event which did not occur until June 29, 2020.
(See rules 8.450(j)(2) & 8.452(c)(1).) Moreover, while mother’s counsel could
have followed up with the court, we have not been presented with, nor have
we uncovered, any explicit statement in the record indicating an intent by
mother to abandon her writ petition. Given the unusual path through which
these writ proceedings reach us, we conclude the better course is to address
mother’s petition on the merits. Doing so will safeguard mother’s procedural
rights and streamline any possible future litigation in this highly contested
matter. (See § 366.26, subd. (l)(1) [precluding further appellate review unless
a writ petition was timely filed which substantively addressed specific
challenges not decided on their merits]; see also id., subd. (l)(4)(B)
[encouraging appellate courts to determine all writ petitions filed in this
context on their merits].) Turning to the merits, we conclude that the
juvenile court did not err in setting a permanency planning hearing.
When a dependent child is found not suitable for adoption at a
permanency planning hearing because the beneficial relationship exception
applies, the juvenile court “ ‘shall either order that the present caretakers or
other appropriate persons shall become legal guardians of the child or order
that the child remain in long-term foster care. Legal guardianship shall be
considered before long-term foster care, if it is in the best interests of the
child and if a suitable guardian can be found.’ ” (Sherri T. v. Superior Court
(2008) 166 Cal.App.4th 334, 340 (Sherri T.); § 366.26, subd. (c)(4)(A).) Under

8
such circumstances, a permanent plan of guardianship or long-term foster
care has been selected because the juvenile court has found a “compelling
reason” for determining that adoption would be detrimental to the child due
to one of the statutory criteria delineated in section 366.26. (§ 366.26,
subd. (c)(1)(B); Caden C. I, supra, 34 Cal.App.5th at p. 103.)
Section 366.3 requires that a postpermanency review hearing be held
at least every six months for dependents placed in long-term foster care
pursuant to the above-described statutory scheme. The review “may be
conducted by the court or an appropriate local agency,” but a review must be
conducted by the court at least once every 12 months. (§ 366.3, subd. (d).) At
the postpermanency review hearing, the reviewing body inquires about “the
progress being made to provide a permanent home for the child,” considers
“the safety of the child,” and makes other determinations such as whether the
permanent plan continues to be appropriate and whether efforts have been
made to “identify a prospective adoptive parent or legal guardian.” (Id.,
subd. (e).) If parental rights have not been terminated, parents are entitled
to be notified and to participate in postpermanency review hearings. (Id.,
subd. (f).)
When the juvenile court conducts the postpermanency review hearing
at 12-month intervals, it is required, pursuant to subdivision (h)(1) of section
366.3, to “consider all permanency planning options for the child, including
whether the child should be returned to the home of the parent, placed for
adoption, . . . or appointed a legal guardian, . . . or, if compelling reasons exist
for finding that none of the foregoing options are in the best interest of the
child, . . . whether the child should be placed in another planned permanent
living arrangement.” Moreover, the statute directs that “[t]he court shall
order that a hearing be held pursuant to Section 366.26, unless it determines

9
by clear and convincing evidence that there is a compelling reason for
determining that a hearing held pursuant to Section 366.26 is not in the best
interest of the child because the child is being returned to the home of the
parent, the child is not a proper subject for adoption, or no one is willing to
accept legal guardianship . . . .” (§ 366.3, subd. (h)(1), italics added.) “If the
county adoption agency, or the department when it is acting as an adoption
agency, has determined it is unlikely that the child will be adopted or one of
the conditions described in paragraph (1) of subdivision (c) of Section 366.26
applies, that fact shall constitute a compelling reason . . . .” (Ibid.)
“Thus, section 366.3 expressly contemplates that, absent a ‘compelling
reason,’ a section 366.26 hearing will be scheduled at any postpermanency
status review hearing conducted by the juvenile court pursuant to section
366.3 in a case in which the previously selected permanent plan was
long-term foster care. The statutory scheme ensures that efforts are
continuously being made to find a more permanent placement for a child in
long-term foster care. The legislative preference is ‘for adoption over legal
guardianship over long-term foster care.’ [Citation.] When the court
conducts the review hearing, it ‘proceeds under a presumption that long-term
foster care is inappropriate. It is obligated to act accordingly.’ ” (M.T. v.
Superior Court (2009) 178 Cal.App.4th 1170, 1178 (M.T.); see San Diego
County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888
(San Diego County).) Thus, a parent wishing to block reconsideration of the
child’s permanent plan under these circumstances bears the burden of
proving there is a compelling reason to forgo a new 366.26 hearing because it
is not in the child’s best interest. (M.T., at p. 1179; Sherri T, supra,
166 Cal.App.4th at p. 341.)

10
 Mother emphasizes the juvenile court’s determination in February
2018 that termination of parental rights would be detrimental to Caden due
to the existence of a beneficial parent-child relationship between Caden and
mother as described in section 366.26, subdivision (c)(1)(B)(i). She claims
that the court’s more recent setting of a new permanency hearing—in which
it impliedly found under subdivision (h)(1) of section 366.3 “that there was no
compelling reason to determine that setting such a hearing was not in
Caden’s best interests”—was unsupported by the record since very little had
changed with respect to Caden’s relationship with mother or in regards to his
other circumstances. If anything, mother argues, circumstances had changed
for the better because she was now actively engaging in substance abuse
treatment and parenting education. Mother’s arguments misapprehend the
strong legislative preference for setting permanency planning hearings at
12-month intervals for children in long-term foster care as well as the
evidence before the juvenile court.
“[W]hen a child is in long-term foster care, the court must set the
matter for a section 366.26 hearing at a [12-month] section 366.3
postpermanency status review hearing unless there is clear and convincing
evidence that it would not be in the best interest of the child to do so.” (M.T.,
supra, 178 Cal.App.4th at p. 1180, citing § 366.3, subd. (h).) Mother bore the
burden of proving that a second permanency planning hearing was not in
Caden’s best interest and presented no evidence other than noting that a
beneficial relationship had been found at the prior permanency planning
hearing 14 months ago. This was plainly inadequate. (Sherri T., supra,
166 Cal.App.4th at p. 341 [finding “inadequate” the argument that beneficial
relationship had been found just six months earlier given that “dependency

11
proceedings are dynamic, and the statutory scheme is designed to allow the
juvenile court to assess and reassess the child”].)
Mother also contends that changed circumstances must be shown
before the juvenile court can set a new permanency planning hearing under
section 366.3 and that they have not been shown in this case. (See rule
5.740(b)(5) [“If circumstances have changed since the permanent plan was
ordered, the court may order a new permanent plan under section 366.26 at
any subsequent hearing, or any party may seek a new permanent plan by a
motion filed under section 388 and rule 5.570.”]; see also In re Maria Q.
(2018) 28 Cal.App.5th 577, 597–598 [same].) The Agency disagrees, arguing
that changed circumstances and/or the filing of a modification petition
pursuant to section 388 are only required when a new permanency planning
hearing is set at a time other than a 12-month postpermanency court review.
(See San Diego County, supra, 13 Cal.4th at pp. 887–888; Sherri T., supra,
166 Cal.App.4th at p. 340 [“While the juvenile court is mandated to order a
new permanent plan selection hearing every 12 months, unless such a
hearing is not in the best interests of the child, it may order a new permanent
plan selection hearing more frequently if circumstances have changed.”].)
We believe the Agency has the better argument. When setting a new
permanency planning hearing in accordance with subdivision (h) of section
366.3, the juvenile court is not deciding that a new permanent plan is
appropriate for the dependent minor. It is merely concluding that the
interests of the minor are best served by taking “another look” at the
question. (See Sherri T., supra, 166 Cal.App.4th at p. 341.) It is true that in
this case only slightly more than a year had passed since the first
permanency planning hearing at which a beneficial relationship between
Caden and mother had been found. However, while such a period of time

12
“ ‘may not seem . . . long . . . to an adult[,] . . . [it] can be a lifetime to a young
child.’ ” (San Diego County, supra, 13 Cal.4th at p. 890, citing In re Marilyn
H. (1993) 5 Cal.4th 295, 310.) Indeed, as has been oft repeated, “ ‘[c]hildhood
does not wait for the parent to become adequate.’ ” (San Diego County, at
p. 890.) Thus, the mere passage of time and Caden’s continued successful
placement with a caregiver who wishes to adopt is sufficient reason to revisit
the issue.
Moreover, even if a finding of more significant changed circumstances
was required in this case, the record amply supports such a finding. At the
time of the first permanency planning hearing, Ms. H. expressed concern that
mother’s disruptive behaviors would negatively impact both her family and
Caden’s stability. These fears have proven justified, leading Ms. H. to reject
a permanent plan of guardianship for Caden, despite her obvious love for the
minor. These facts are more than sufficient to conclude that it is in Caden’s
best interests to reconsider whether the strength and quality of his
relationship with mother outweigh the benefits of a permanent adoptive
home. There is certainly no evidence of a compelling reason that such a
course of action is not in his best interests. Finally, mother will have an
opportunity at the second permanency planning hearing to argue in favor of
the continued application of the beneficial relationship exception.
DISPOSITION
The petition is denied on the merits. (See § 366.26, subds. (l)(1)(C),
(l)(4)(B).) Because the permanency planning hearing in this matter is set for
September 30, 2020, this opinion is final as to this court immediately. (Rule
8.490(b)(2)(A).) Mother’s request for a stay of the permanency planning
hearing is denied as moot.

13
 _________________________
Sanchez, J.

WE CONCUR:

_________________________
Margulies, Acting P. J.

_________________________
Banke, J.

A160270 C.C. v. Superior Court

14