In re D.T. CA3

Filed 11/29/22 In re D.T. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----

In re D.T., a Person Coming Under the Juvenile Court C095459
Law.

SACRAMENTO COUNTY DEPARTMENT (Super. Ct. No. JD240945)
OF CHILD, FAMILY AND ADULT SERVICES,

Plaintiff and Respondent,

v.

M.T. et al.,

Defendants and Appellants.

C.G. (mother) and M.T. (father) appeal from the juvenile court’s orders
terminating their parental rights and freeing D.T. (minor) for adoption. (Welf. & Inst.
Code, §§ 366.26, 385.)1 Mother contends the juvenile court erred in denying her
section 388 petition seeking return of minor to her care or, in the alternative, reunification

1 Undesignated statutory references are to the Welfare and Institutions Code.

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services. In addition, mother and father both cite In re Caden C. (2021) 11 Cal.5th 614
(Caden C.) in arguing that the juvenile court should have applied the beneficial parental
relationship exception to adoption. (§ 366.26, subd. (c)(1)(B)(i).)
We will affirm the juvenile court’s order denying mother’s section 388 petition.
But with regard to mother and father’s second contention, because the record is unclear
as to whether the juvenile court made findings consistent with the guidance in Caden C.,
we will vacate the orders terminating mother’s and father’s parental rights and remand
the matter to the juvenile court with direction to make findings and enter a new order.
BACKGROUND
A
In November 2020, Sacramento County Department of Child, Family and Adult
Services (the Department) filed a section 300 petition on behalf of the then four-month-
old minor based on a history of domestic violence and the violation of a domestic
violence restraining order. (§ 300, subd. (b)(1).) Father also had an untreated substance
abuse problem and reunification services for the parents had been terminated in a
separate dependency case involving minor’s two siblings, who are not parties to this
appeal. (§ 300, subds. (b)(1) & (j).) Minor was detained and placed in foster care and the
juvenile court ordered visitation.
The December 2020 jurisdiction/disposition report noted that minor was placed in
a foster home with her siblings and she was doing well. Mother admitted that she and
father had a history of domestic violence, but she knew how to protect minor. Father
denied current physical violence and said minor was not in danger. He said he was sober.
The Department explained that father had lost his parental rights to minor’s half-
sibling in 2008. It added that father had threatened the social worker and it recommended
suspending father’s in-person visits with minor. The juvenile court issued such an order
later that month.

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 In a January 2021 report, the Department said father had a history of being
verbally aggressive toward staff during visits with his children. Father had also
threatened his drug treatment service provider.
The Department reported in March 2021 that mother had missed only two visits
since October 2020 and that she was doing very well with minor. Father visited virtually
with minor.
In May 2021, at a contested jurisdiction/disposition hearing, the juvenile court
sustained the petition and adjudged minor a dependent child of the court. The juvenile
court bypassed parents for reunification services, finding that (1) reunification services
had been terminated for two of minor’s siblings, and mother and father had not made
reasonable efforts to address the problems that led to removal of the siblings; and
(2) father’s reunification services and parental rights had been terminated in connection
with minor’s half-sibling after father failed to reunify or make reasonable efforts to
address the problems that led to the half-sibling’s removal. (§ 361.5, subds. (b)(10) &
(b)(11)) The juvenile court set a section 366.26 hearing.
In July 2021, father filed a section 388 petition asking the juvenile court to vacate
the section 366.26 hearing and to order reunification services. Father alleged he
completed anger management classes, participated in drug testing and treatment, and had
been sober for six months.
In its August 2021 section 366.26 report, the Department recommended
terminating parental rights and freeing the minor for adoption. Mother’s supervised visits
with minor were generally appropriate and she only missed visits occasionally. Father’s
virtual visits sometimes required redirection. There were times when he would arrive late
or leave early, and he joined some virtual visits while driving or working out at a gym.
The social worker described the mother and father visits as “no more than that of a
friendly visitor.”

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 Minor was a “calm and happy child” and was comfortable with her foster parents.
Her foster parents loved her and wanted to adopt minor and her two siblings. The social
worker acknowledged that father’s progress with his substance abuse was commendable
but opined that father was still in the process of changing his behavior. To the best of the
social worker’s knowledge, mother and father remained in a relationship, and father had
not participated in domestic violence classes. The social worker added that father
continued to be dismissive and impatient with her.
In October 2021, mother filed a section 388 petition asking the juvenile court to
vacate the section 366.26 hearing and return minor to her or, in the alternative, order
reunification services for her. Mother argued she was capable of providing a safe and
stable home, noting there had been no new incidents of domestic violence since minor’s
detention. She said she completed a domestic violence course.
In an October 2021 addendum report, the Department wrote that father was no
longer drug testing. Father had completed a domestic violence program in September
2021 and said he learned coping skills, including breathing exercises. According to the
Department, however, father declined to explain how he had benefited from the anger
management classes or the substance abuse treatment. The social worker was concerned
that father did not discuss healthy ways to cope with stress. The restraining order had
been reduced to a peaceful contact order; father and mother were attending couples
counseling and not living together. Father said he was ready to be a parent, but he would
rely on mother to care for minor. Although father was permitted to reach out to the foster
parents to inquire about minor, he did not do so. Father sometimes appeared distracted
during visits; nevertheless, minor seemed to respond to him.
Mother’s visits with minor were going well. The two played games and watched
educational videos together, and mother would change minor’s diaper and feed her.
Minor appeared happy during visits. Mother said minor called her “moma.” Still, the

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Department continued to recommend terminating parental rights because, in its opinion,
the benefits of permanency outweighed any possible detriment.
In a November 2021 addendum report, the Department indicated that father had
been arrested in May 2021 for crimes related to an armed robbery in February 2021
involving a gun.
The juvenile court heard the section 388 petitions at the section 366.26 hearing.
Mother testified that in her domestic violence course she learned about warning signs,
safety measures, stress relievers, and the healing process. She had completed four
classes. Mother also said she learned communication skills in marriage counseling.
Mother and father usually saw each other two to three times a week and they were
working on their differences. She said there had been no domestic violence since
November 2020; although father broke into the house and took her keys, she did not
consider that to be domestic violence. She saw positive changes in father.
Mother said minor was accustomed to their routine during visits and the visits
always ended positively. According to mother, her bond with minor was unbreakable
and minor understood they were mother and daughter. Mother understood that minor
was removed due to domestic violence, but she felt it was for the wrong reasons. Mother
was willing to limit her contact with father and seek a restraining order and asked the
juvenile court to return minor to her. She felt she had the tools to keep herself and minor
safe.
Father testified he was employed and living in a sober living facility. Although he
was not drug testing, he had been sober for nearly 10 months, and he regularly attended
meetings and relapse prevention classes. Previously, his longest period of sobriety had
been three years.
Father said he learned in anger management to slow down and not blame others.
He felt it made him a better father. He was willing to participate in any court-ordered
services should the juvenile court grant his section 388 petition. He regularly attended

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his visits with minor and she smiled at him. Father acknowledged he never lived with
minor. He planned to continue living in the sober living facility and minor could live
separately with mother. Father obtained his driver’s license.
B
The juvenile court denied the section 388 petitions and indicated it was turning to
the section 366.26 determination. It described the analysis as whether the child was
likely to be adopted, whether an exception applied, and whether the termination of
parental rights would be detrimental to minor. The juvenile court discussed the
following:
Minor was under the age of three and the case had been pending for more than a
year, longer than the statutory six months. Mother and father had a significant amount of
time to address concerns but did not take it seriously until a few months before the
hearing. Although progress had been made, the concerns were not resolved. Father
presented inconsistent evidence that he was changing. Mother and father also gave
inconsistent testimony regarding their contact. In addition, mother was not credible in
testifying that she was not aware of father’s criminal case for armed robbery.
The juvenile court expressed concern that mother stopped participating in
parenting classes. It acknowledged the visitation but said those were not enough to make
the findings it needed to make. The juvenile court said mother did not understand
domestic violence or how to address it.
Addressing the beneficial parental relationship exception to adoption, the juvenile
court found that the benefit of maintaining a relationship between minor and her parents
did not outweigh the benefit of adoption. Minor had been removed only a few months
after her birth and the parents had not developed a strong enough bond to outweigh the
benefits of adoption. According to the juvenile court, the evidence did not demonstrate
that terminating parental rights would be detrimental to minor. The juvenile court
acknowledged that mother and father were changing and encouraged them to continue to

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address their issues. The juvenile court terminated parental rights and freed the minor for
adoption.
DISCUSSION
I
Mother contends the juvenile court erred in denying her section 388 petition
seeking the return of minor to her care or, in the alternative, reunification services.
“Section 388 allows a parent to petition to change, modify, or set aside any
previous juvenile court order. (§ 388, subd. (a).) ‘The petitioner has the burden of
showing by a preponderance of the evidence (1) that there is new evidence or a change of
circumstances and (2) that the proposed modification would be in the best interests of the
child.’ [Citation.] ‘[T]he change in circumstances must be substantial.’ [Citations.] [¶]
The section 388 modification procedure is an ‘ “escape mechanism” when parents
complete a reformation in the short, final period after the termination of reunification
services but before the actual termination of parental rights.’ [Citations.] We review a
juvenile court’s denial of a section 388 petition for abuse of discretion, and review its
factual findings for substantial evidence. [Citation.] We may disturb the exercise of the
court’s discretion only when the court has made an unreasonable or arbitrary
determination. [Citation.]” (In re J.M. (2020) 50 Cal.App.5th 833, 845-846, italics
omitted.)
“A parent establishes a substantial change of circumstances for purposes of
section 388 by showing that, during the period between termination of reunification
services and the permanency planning hearing, he or she has resolved the previously
unresolved issues supporting juvenile court jurisdiction. (See In re A.A. (2012)
203 Cal.App.4th 597, 611-612 [‘The change in circumstances’ must be such that ‘the
problem that initially brought the child within the dependency system must be removed
or ameliorated. [Citation.] The change in circumstances or new evidence must be of

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such significant nature that it requires a setting aside or modification of the challenged
order.’].)” (In re J.M., supra, 50 Cal.App.5th at p. 846.)
Here, the minor was removed from mother’s care in November 2020 because
mother was unable to protect minor from father, who was engaging in domestic violence
and abusing drugs. Although mother completed a domestic violence class in May 2021,
and had completed three other domestic violence courses between 2019 and 2021, there
was evidence she still did not fully understand domestic violence, and she said she
thought the minor’s removal was for the wrong reasons. In addition, there was evidence
that mother and father had time to address concerns but did not fully engage until shortly
before the hearing, and that although progress had been made, the concerns were not
resolved. The juvenile court found that mother and father gave inconsistent testimony
regarding their contact, and it found mother not credible in testifying that she was not
aware of father’s criminal case for armed robbery. Because the evidence indicated
mother’s circumstances were changing but not yet changed, the juvenile court acted
within its discretion in finding that mother had failed to show a change in circumstances
and in denying her section 388 petition.
II
Mother and father argue the juvenile court should have applied the beneficial
parental relationship exception to adoption. They claim the juvenile court did not
conduct the analysis required by Caden C., and that the juvenile court considered
improper factors in making its determination.
At the section 366.26 selection and implementation hearing, a juvenile court must
choose one of the several “ ‘possible alternative permanent plans for a minor
child . . . . The permanent plan preferred by the Legislature is adoption. [Citation.]’
[Citation.] If the court finds the child is adoptable, it must terminate parental rights
absent circumstances under which it would be detrimental to the child.” (In re Ronell A.
(1996) 44 Cal.App.4th 1352, 1368, italics omitted.) There are only limited circumstances

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which permit the court to find a “compelling reason for determining that termination [of
parental rights] would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) Such
circumstances include when the parents have maintained regular visitation and contact
with the child, the child would benefit from continuing the relationship, and termination
of parental rights would be detrimental to the child. (§ 366.26, subd. (c)(1)(B)(i)
[beneficial parental relationship exception]; Caden C., supra, 11 Cal.5th at pp. 639-640.)
The party claiming the exception has the burden of establishing the existence of
any circumstances that constitute an exception to the termination of parental rights.
(Caden C., supra, 11 Cal.5th at pp. 636-637; In re Melvin A. (2000) 82 Cal.App.4th 1243,
1252; Cal. Rules of Court, rule 5.725(d)(2).) For the beneficial parental relationship
exception to apply, the parent “must show regular visitation and contact with the child,
taking into account the extent of visitation permitted. Moreover, the parent must show
that the child has a substantial, positive, emotional attachment to the parent—the kind of
attachment implying that the child would benefit from continuing the relationship. And
the parent must show that terminating that attachment would be detrimental to the child
even when balanced against the countervailing benefit of a new, adoptive home.”
(Caden C., at p. 636.)
The beneficial parental relationship exception to adoption is an exception to the
general rule that the juvenile court must choose adoption where possible, and it “ ‘must
be considered in view of the legislative preference for adoption when reunification efforts
have failed.’ ” (In re Celine R. (2003) 31 Cal.4th 45, 53.) It “must be examined on a
case-by-case basis, taking into account the many variables which affect a parent/child
bond. The 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 are some of the variables which logically affect a parent/child bond.” (In
re Autumn H. (1994) 27 Cal.App.4th 567, 576.) The factual predicate of the exception
must be supported by substantial evidence, but the juvenile court exercises its discretion

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in weighing that evidence and determining detriment. (Caden C., supra, 11 Cal.5th at
pp. 639-640; In re K.P. (2012) 203 Cal.App.4th 614, 622.) We do not substitute our
judgment for that of the juvenile court as to what is in the child’s best interests.
(Caden C., at p. 641.)
Here, in finding that the exception did not apply, the juvenile court appropriately
considered minor’s age, the amount of time she spent in the care of the foster parents, the
quality of minor’s visits with parents, and her relationship with mother and father.
However, the juvenile court also discussed mother and father’s progress in services and
their struggles with the circumstances that gave rise to the dependency. The juvenile
court noted that father was on drugs while he participated in an anger management
program and that mother had stopped participating in parenting classes. In addition, the
juvenile court noted that mother and father were working on their relationship and that
they gave inconsistent testimony regarding their contact. The juvenile court
acknowledged their efforts and encouraged them to continue.
As Caden C. explains, a parent’s continued struggle with the issues leading to
dependency is not a categorical bar to applying the beneficial parental relationship
exception. (Caden C., supra, 11 Cal.5th at p. 637.) That would “effectively write the
exception out of the statute.” (Ibid.) A section 366.26 hearing “all but presupposes that
the parent has not been successful in maintaining the reunification plan meant to address
the problems leading to dependency.” (Caden C., at p. 637.) “Parents need not show that
they are ‘actively involved in maintaining their sobriety or complying substantially with
their case plan’ [citation] to establish the exception.” (Ibid.)
Still, the issues that led to the dependency may be relevant to the application of the
exception, such as where there is a negative effect on the child. (Caden C., supra,
11 Cal.5th at p. 637.) But they are relevant only to the extent they inform whether the
child would benefit from continuing the parental relationship and be harmed by losing it.
(Id. at p. 638.) Here, while it is possible the juvenile court was intermixing its rationale

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for denying mother and father’s section 388 petitions, there are also indications in the
record otherwise. If the comments pertained to the section 366.26 portion of the hearing,
we cannot say with certainty that the juvenile court’s discussion of mother and father’s
progress was limited to whether termination of parental rights would be detrimental.
(Caden C., at p. 639) Accordingly, we will remand the matter to the juvenile court with
direction to make findings and enter a new order consistent with Caden C.
DISPOSITION
The juvenile court’s order denying mother’s section 388 petition is affirmed. The
juvenile court’s orders terminating mother’s and father’s parental rights are vacated, and
the matter is remanded to the juvenile court with direction to make findings and enter a
new order consistent with Caden C., supra, 11 Cal.5th 614. On remand, the juvenile
court shall exercise its discretion regarding what additional evidence, if any, may be
presented by the parties.

/S/
MAURO, Acting P. J.

We concur:

/S/
HOCH, J.

/S/
BOULWARE EURIE, J.

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