Filed 11/17/21 In re T.T. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re T.T., a Person Coming Under
the Juvenile Court Law.
SAN FRANCISCO HUMAN
SERVICES AGENCY,
Plaintiff and Respondent, A162584
v.
(City & County of San Francisco
G.R.,
Super. Ct. No. JD19-3156)
Defendant and Appellant.
G.R. (mother) appeals an order terminating her parental rights to her
now three-year-old daughter, T.T., and selecting adoption as the child’s
permanent plan under Welfare and Institutions Code section 366.26. 1 She
contends, among other things, the court erred in finding that the “parental-
benefit” exception to the termination of parental rights does not apply.
(§ 366.26, subd. (c)(1)(B)(i).) After the trial court’s order was entered, the
California Supreme Court decided In re Caden C. (2021) 11 Cal.5th 614
(Caden C.), in which the court provided new guidance regarding how the
parental-benefit exception should be applied. Although we recognize it is in
T.T.’s interest to expeditiously select her permanent plan, we cannot
1 All statutory references are to the Welfare and Institutions Code.
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determine on the record before us that the juvenile court’s ruling complied
with the principles announced in the Supreme Court’s decision. Accordingly,
we will reverse the order terminating parental rights and remand this matter
for a new section 366.26 hearing in light of the legal standards articulated in
Caden C.2
Background
In June 2019, the agency filed a petition alleging that then two-year-old
T.T. came within the meaning of section 300 based on her exposure to her
parents’ domestic violence and her mother’s substance abuse. At the
jurisdictional and dispositional hearing, the court declared dependency and
ordered family maintenance services for mother, including participation in
domestic violence and substance abuse services.3
In November 2019, the agency filed a supplemental petition
seeking to remove T.T. from mother, after mother took methamphetamine
and then checked herself into a hospital for mental health treatment. The
court sustained the allegations of the supplemental petition and placed T.T.
with her maternal aunt. The court ordered supervised visitation and
reunification services for mother.
At the sixth-month review hearing in September 2020, the court
2 In light of this conclusion, we do not reach mother’s additional
argument that the trial court abused its discretion in failing to grant her
request for a continuance of the section 366.26 hearing so that she could
clarify the aunt’s preference as to T.T.’s permanent plan. The aunt’s
preference and the applicability of the relative guardian exception to the
termination of parental rights (§ 366.26, subd. (c)(1)(A)) should be considered
on remand at the new permanency planning hearing.
3 A restraining order was issued shortly after the petition was filed
prohibiting T.T’s father from having any contact with T.T. or mother. Father
is not a party to the present appeal.
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found that reasonable services had been provided but that mother had made
minimal progress in completing her case plan. The court found that there was
no substantial probability of T.T.’s timely return to mother, terminated
mother’s services, and scheduled a section 366.26 hearing for January 2021.
The hearing originally set for January was continued for a contested hearing
in April 2021.
The agency’s reports submitted in advance of the hearing showed that
mother’s virtual visitation between July and November of 2020 was
inconsistent but, since then, mother had participated in monthly virtual
visits. Mother also had attended several family events including a birthday
party, family picture day and Thanksgiving in the later part of 2020, and had
accompanied T.T. to a doctor’s appointment in January 2021. The social
worker also indicated that mother reported that she has “been going to a
methadone center in San Francisco and receiving her methadone daily for the
past thirty days, that she gets drug tested and attends substance abuse
counseling weekly.” The agency recommended adoption as “the best
permanency plan for this minor considering the age and the fact that the
current caregiver and maternal aunt desires to adopt her niece.” The report
added that the aunt “agrees to allow mother to visit with [T.T.] as long as she
is in a program, clean and sober.”
At the hearing, the social worker confirmed that mother had
commenced monthly in-person visits a few months prior to the hearing. She
also explained that the temporary inconsistency in mother’s virtual visits in
2020 was caused by mother not having a working phone. She also testified
that T.T. recognizes mother as “mom” and that they have a “good
relationship.” She continued to recommend adoption over legal guardianship,
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despite the aunt’s willingness to consider both, because adoption would
provide T.T. with more stability.
Mother testified that she cared for T.T. by herself until T.T. was two
and that she had been visiting with T.T. in person once a month and by video
weekly. She also testified that she had been clean and sober for “six months
and four days today” and had participated in substance abuse treatment,
therapy and parenting classes.
The trial court acknowledged that this case was a “close call” but
ultimately concluded that the permanency of adoption was in the child’s best
interest. The court explained that mother “still has some work to do” and
“[u]nfortunately the law goes against her. There’s a very short window of
time for [mother] to do what she needs to do to be clean and sober, to do her
counseling, given that the child was under three and has in fact recently
turned three years old. [¶] So I can’t agree that she did what she needed to
do. I can agree . . . that [she] is a decent mom and a decent person and has
worked hard on herself and is working very hard on herself. She was using
heroin five months ago. She was using crystal methamphetamine, one of the
most serious drugs imaginable. She’s been clean now of crystal meth, as I
understand it for six months. She has done and is doing counseling and is on
methadone maintenance. She is trying to get off methadone maintenance,
which is a very tricky time for someone in their recovery. And she wants her
daughter, in her words, quote, ‘to see the better me, the sober me.’ And I have
no doubt if she keeps working and doesn’t stop her recovery and therapy and
treatment, that [T.T.] will see the sober [mother] and the better [mother], and
I believe she will see the loving caring parent. [¶] But at this point, although
there certainly is a familial relationship. and I’ll use the word bond, I cannot
say it’s outweighed by the permanency that [the aunt] is willing to provide for
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[T.T.] in terms of adoption. I am very thankful that they have a great
relationship and — and that they will continue to have a strong sister family
relationship and bond between themselves and work out visitation and work
out family visits and work out celebrations. I have no doubt that [the aunt]
will celebrate with [mother] when there are things to celebrate, that she’ll
help her and assist her during the more challenging times, but there are
some challenges ahead for this young mother, and she still has a ways to go
in her recovery.”
Mother timely filed a notice of appeal.
Discussion
The purpose of the section 366.26 hearing is to select a permanent plan
for the child after reunification efforts have failed. (§ 366.26, subd. (b); In re
Marilyn H. (1993) 5 Cal.4th 295, 304.) Adoption, where possible, is the
permanent plan preferred by the Legislature for a dependent minor child who
has not been returned to the custody of his or her parents and is found by the
court to be adoptable. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.)
When the court finds that a child is likely to be adopted if parental rights are
terminated, it must select adoption as the permanent plan unless “the parent
shows that termination would be detrimental to the child for at least one
specifically enumerated reason.” (Caden C., supra, 11 Cal.5th at p. 630.)
Here, mother contends the court erred in finding that the “parental-
benefit” exception does not apply. (§ 366.26, subd. (c)(1)(B)(i).) In Caden C.
the court explained, for this exception to apply, a parent is required to show
“(1) regular visitation and contact, and (2) a relationship, the continuation of
which would benefit the child such that (3) the termination of parental rights
would be detrimental to the child.” (Caden C., supra, 11 Cal.5th at p. 631,
italics omitted.) “The first element—regular visitation and contact—is
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straightforward. The question is just whether ‘parents visit consistently,’
taking into account ‘the extent permitted by court orders.’ ” (Id. at p. 632.)
“As to the second element, courts assess whether ‘the child would benefit
from continuing the relationship.’ [Citation.] Again here, the focus is the
child. And the relationship may be shaped by a slew of factors, such as ‘[t]he
age of the child, the portion of the child's life spent in the parent’s custody,
the “positive” or “negative” effect of interaction between parent and child, and
the child’s particular needs.’ ” (Ibid., quoting In re Autumn H., supra, 27
Cal.App.4th at p. 576.) “Concerning the third element—whether ‘termination
would be detrimental to the child due to’ the relationship—the court must
decide whether it would be harmful to the child to sever the relationship and
choose adoption.” (Id. at p. 633.)
The court’s decision in Caden C. focuses primarily on the third element.
The court rejected reliance on whether the parents have complied with their
case plan and explained, “Because terminating parental rights eliminates
any legal basis for the parent or child to maintain the relationship, courts
must assume that terminating parental rights terminates the relationship.
[Citations.] What courts need to determine, therefore, is how the child would
be affected by losing the parental relationship—in effect, what life would be
like for the child in an adoptive home without the parent in the child's life.
[Citation.] . . . [T]he effects might include emotional instability and
preoccupation leading to acting out, difficulties in school, insomnia, anxiety,
or depression [or] . . . a new, stable home may alleviate the emotional
instability and preoccupation leading to such problems, providing a new
source of stability that could make the loss of a parent not, at least on
balance, detrimental. [¶] In each case, then, the court acts in the child’s best
interest in a specific way: it decides whether the harm of severing the
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relationship outweighs ‘the security and the sense of belonging a new family
would confer.’ [Citation.] ‘If severing the natural parent/child relationship
would deprive the child of a substantial, positive emotional attachment such
that,’ even considering the benefits of a new adoptive home, termination
would ‘harm[]’ the child, the court should not terminate parental rights.”
(Caden C., supra, 11 Cal.5th at p. 633, quoting In re Autumn H., supra, 27
Cal.App.4th at p. 575.)
Here, although the agency suggests that mother has not maintained
regular visitation sufficient to satisfy the first requirement for application of
the exception, the trial court implicitly found that mother had established
consistent visitation and substantial evidence supports that implicit finding.
(See Caden C., supra, 11 Cal.5th at pp. 639-640 [“The determination that the
parent has visited and maintained contact with the child ‘consistently,’
taking into account ‘the extent permitted by the court's orders’ [citation] is
essentially a factual determination.”].) At the section 366.26 hearing, the
court questioned the social worker on her statement that mother’s visitation
had been inconsistent and the social worker explained that mother’s
inconsistency was during the Covid pandemic when issues with her phone
interfered with her virtual visits. The record reflects that apart from those
technological issues, mother has consistently visited with her daughter.
Substantial evidence also supports the trial court’s finding that mother
had a familial bond with her daughter. (See Caden C., supra, 11 Cal.5th at
pp. 639-640 [“It’s likewise essentially a factual determination whether the
relationship is such that the child would benefit from continuing it.”].) The
evidence was undisputed that T.T. calls mother “mom” and relates to her as
her mother. Mother was T.T.’s primary caregiver for the first two years of her
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life and the social worker acknowledged that her “good” relationship with
T.T. had not changed since her placement with her aunt.
With respect to the third requirement, the court’s determination that
termination of parental rights would not be detrimental to T.T. is subject to a
“hybrid” standard of review. (Caden C., supra, 11 Cal.5th at p. 641.) The
court’s factual determinations regarding, among other things, the specific
features of the child’s relationship with the parent, the harm that would come
from losing those specific features, and how the prospective adoptive
placement may offset and even counterbalance those harms are reviewed for
substantial evidence. (Id. at p. 640.) The court’s “delicate balancing” of “the
harm of losing the relationship against the benefits of placement in a new,
adoptive home” is discretionary and properly reviewed for abuse of discretion.
(Ibid.)
Here, although the trial judge thoughtfully weighed T.T.’s best
interests, we cannot be certain that improper factors were not considered and
that the court sufficiently considered the harm T.T. may suffer from
termination of the parental relationship with mother. In explaining its
ruling, the trial court made reference to the fact that mother still had “work
to do” on her case plan and that mother would continue to face significant
hurdles in maintaining her sobriety. In Caden C., the court explained that a
“parent’s struggles with issues such as those that led to dependency are
relevant only to the extent they inform the specific questions before the court:
would the child benefit from continuing the relationship and be harmed, on
balance, by losing it?” (Caden C., supra, 11 Cal.5th at p. 638.) The court held
that “[p]arents need not show that they are ‘actively involved in maintaining
their sobriety or complying substantially with their case plan’ [citation] to
establish the exception.” (Id. at p. 637 & fn. 6, disapproving In re Noah G.
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(2016) 247 Cal.App.4th 1292, 1304 [parents must show that they are actively
involved in maintaining their sobriety or complying substantially with their
case plan to establish the parental-benefit exception].) As the agency argues,
the court did not expressly find “the exception inapplicable as a result of
mother’s ongoing struggles with substance abuse” or indicate that her failure
to fully resolve her substance abuse issues “served as a bar to applicability of
the exception.” Nonetheless, the court’s comments reflect some ambiguity
regarding the court’s consideration of mother’s failure to complete her case
plan and ongoing struggles with sobriety.
There is also ambiguity as to whether the court improperly relied on
the aunt’s willingness to include mother in T.T.’s life. (See Caden C., supra,
11 Cal.5th at p. 633 [“courts must assume that terminating parental rights
terminates the relationship”]; In re E.T. (2018) 31 Cal.App.5th 68, 72
[application of exception should not be impacted by fact mother had a long-
term relationship with godparent caretakers]; In re C.B. (2010) 190
Cal.App.4th 102, 127-128 [finding that the trial court erred in considering the
adoptive parent’s willingness to allow the children to continue to have contact
with the mother as a factor at the selection and implementation hearing]; In
re S.B. (2008) 164 Cal.App.4th 289, 300 [a parent should not lose his or her
parental rights “on the basis of an unenforceable promise of future visitation
by the child’s prospective adoptive parents”].) Again, the agency argues that
the trial court’s comments merely reflect the “reality” of the sibling
relationship between mother and her sister but do not amount to an express
finding that “termination of parental rights was justified because there would
be post termination contact.” A similar argument was recently rejected in
In re J.D. (2021) 69 Cal.App.5th 594. There, the court explained, “The
juvenile court’s assumption . . . that postadoption contact was not necessarily
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precluded is understandable as a practical matter. But as a legal matter,
such considerations must be put aside in assessing whether a child would be
harmed by the loss of a significant, positive emotional relationship with a
natural parent to such a degree that it is the child’s best interest to select
some permanent plan short of adoption. Because the record reflects the court
did not put such considerations aside when it ruled on several evidentiary
objections, we cannot be certain it properly evaluated the evidence when it
came time to render its ultimate decision to terminate mother’s parental
rights.” (Id. at p. 628.) The same can be said of the court’s comments in the
present case.
Given that the trial court’s explanation touched on only the above
topics and in view of the importance of the parental relationship, we deem it
prudent to remand for reconsideration so that the trial court can make its
findings with the benefit of the guidance provided in Caden C.
Disposition
The order terminating parental rights is reversed and the matter
remanded for reconsideration.
POLLAK, P. J.
WE CONCUR:
STREETER, J.
ROSS, J.*
*
Judge of the Superior Court of California, County of San Francisco,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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