In re T.P. CA1/1 ( 2022 )

Filed 1/18/22 In re T.P. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
In re T.P., a Person Coming Under
the Juvenile Court Law.
SAN FRANCISCO HUMAN A163149
SERVICES AGENCY,
(San Francisco City & County
Plaintiff and Respondent, Super. Ct. No. JD18-3279)
v.
T.R.,
Defendant and Appellant.
Appellant T.R. (Mother) appeals from the order terminating her
parental rights to her three-year-old son, T.P. She argues that the juvenile
court failed to properly weigh whether the parental-benefit exception to
termination applied. We disagree and affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Respondent San Francisco Human Services Agency (the Agency)
received a report in late November 2018, when T.P. was an infant, that his
father punched Mother and tried to choke her, which caused T.P. to hit his
head on a wall. The Agency initiated these proceedings the next month when
it filed a dependency petition under Welfare and Institutions Code
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section 300.1 T.P. was placed with a longtime family friend, and soon after
with an adult half sibling. Further investigation by the Agency revealed that
Mother had a history of methamphetamine use and that she had been
arrested for drug crimes, and she and T.P.’s father had a history of domestic
violence. The parents were “homeless and couch surfing.” They had both
suffered child abuse when they were children, and a social worker stated it
was “evident that [the parents] have unresolved trauma and substance abuse
issues for which they need assessment and treatment.”
The juvenile court, in February 2019, sustained allegations that
Mother and T.P.’s father had engaged in domestic violence and that they both
had mental health issues that required assessment and treatment (§ 300,
subd. (b) [failure to protect]), and that three older half siblings had been the
subject of dependency proceedings and placed in out-of-home care (§ 300,
subd. (j) [abuse of sibling]). The court adjudged T.P. a dependent minor,
continued him in out-of-home care, and ordered reunification services for
both parents. Mother was to have visits with T.P. supervised by the Agency.
Mother engaged in services and made progress in her case plan. 2 The
juvenile court continued her reunification services at the six-month review
hearing in October 2019, and continued T.P. as a dependent minor.
T.P. was placed with a different foster placement when he was around
a year old. Mother engaged in her case plan and continued to make progress.
The Agency, in February 2020, recommended that Mother be granted another
1 All statutory references are to the Welfare and Institutions Code.
2 T.P.’s father, by contrast, did not meaningfully engage in services or
make progress in his case plan. The juvenile court discontinued his
reunification services following the six-month review hearing and terminated
his parental rights at the same time it terminated Mother’s parental rights.
He is not a party to this appeal.
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six months of reunification services with the hope that housing would become
available so that she could reunify with T.P. At the 12-month review hearing
in February, the juvenile court continued T.P. as a dependent minor and
ordered that reunification services continue for Mother.
The following month, Mother moved into her own housing, where she
“maintained a safe and sober home free from violence.” After a brief delay
caused by shutdowns initiated because of COVID-19, Mother began in-home,
unsupervised visitation with T.P. in April 2020. The Agency submitted a
status report dated June 2020 recommending that T.P. be returned to
Mother’s care, with family-maintenance services to be provided. The social
worker reported that T.P. had “done especially well living in the care of [a]
substitute care provider but for healthy attachment to take place for [T.P.]
and [Mother] it is important that the transition begin for reunification to be
successful and continue through the family maintenance phase.” The Agency
planned to transition to weekend overnight visits, followed by a 30-day home
visit, with the intention to return T.P. to Mother’s care. The juvenile court,
in June 2020, granted the Agency discretion to begin overnight visits between
T.P. and Mother.
Mother began a 30-day trial home visit with T.P. in July 2020. The
social worker observed Mother doing well in the first two weeks of the visit.
Then in late July, Mother tested positive for methamphetamine, but tested
negative for methamphetamine three days later (though she did test positive
for marijuana). The Agency ended the home visit. Concerned about Mother’s
drug use given T.P.’s young age, the Agency, in August, recommended
terminating Mother’s reunification services and finding a different
permanent placement for T.P. Mother’s visits with T.P. changed to
supervised.
3
Following a contested 18-month review hearing in December 2020, the
juvenile court terminated Mother’s reunification services and set the matter
for a selection-and-implementation hearing (§ 366.26). Mother was to
continue to receive supervised visits, and by April 2021, Mother was visiting
with T.P. once a week. The visits went well, and T.P. had a positive
relationship with Mother.
The Agency recommended that Mother’s parental rights be terminated.
As of April 2021, T.P. was placed with a foster family that was not interested
in adoption. The Agency was trying to find a relative placement for T.P. but
was ultimately unsuccessful, and T.P. was placed with a prospective adoptive
home in July.
The juvenile court held the selection-and-implementation hearing five
days after T.P. was placed in the new home, and the social worker testified
about the placement. Mother’s trial counsel briefly questioned the social
worker, first about Mother’s recent visits with T.P., and then about why the
Agency stopped pursuing relative placement for T.P. The worker
acknowledged that the visits had been appropriate and explained why
relative placement had been unsuccessful.
Mother testified that she had kept her appointed visits with her son,
she was currently clean and sober, she had a place to live, she objected to the
termination of her parental rights, and she wanted T.P. placed with her. If
that was not possible, she wanted T.P. placed with a family member.
After the close of evidence, Mother’s counsel argued that Mother
wanted her son returned to her and emphasized Mother’s recent sobriety.
The deputy city attorney stressed, though, that the focus of the case was
currently on establishing permanence for T.P.
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The juvenile court first observed that the law was “very specific” and
“mandates and requires that judges follow it,” even though judges may not
“enjoy terminating parental rights even though the burden had been met.”
The court then ruled that “[t]he standard has been met here by clear and
convincing evidence. This child is generally adoptable. This child is
specifically adoptable. There are no exceptions that have been prevented—
presented, I should say. And I am required to follow the law. [¶] And I will
say that the Agency has bent over backwards in this case because normally,
and in many other counties, . . . parental rights would have been terminated
at the six-month timeline, not over two years later. I mean that’s just what is
happening in Solano County[3] and other counties. You know, that’s not
any—any real rationale that’s going into my judgments here today. But
having listened to all the evidence here today, I am going to follow the law.”
The court terminated Mother’s parental rights.
II.
DISCUSSION
Mother’s sole argument on appeal is that the juvenile court failed to
follow the standards for considering whether the beneficial-relationship
exception to termination of parental rights had been established under the
standards set forth in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.). We
are not persuaded.
“At the section 366.26 hearing, the question before the court is
decidedly not whether the parent may resume custody of the child.”
(Caden C., supra, 11 Cal.5th at p. 630.) Instead, the goal is to select and
implement a permanent plan for the child. (Ibid.) “[T]he court must first
3 The court referred to Solano County because that is where a friend of
the trial court had retired because “he really no longer liked having to follow
the law that he was mandated to follow when the standards have been met.”
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determine by clear and convincing evidence whether the child is likely to be
adopted. (See § 366.26, subd. (c)(1).) If so, and if the court finds that there
has been a previous determination that reunification services be terminated,
then the court shall terminate parental rights to allow for adoption.
[Citation.] But if the parent shows that termination would be detrimental to
the child for at least one specifically enumerated reason, the court should
decline to terminate parental rights and select another permanent plan. (See
§ 366.26, subd. (c)(1)(B)(i)–(vi), (4)(A).)” (Id. at pp. 630–631.) One of those
exceptions is the “parental-benefit exception. What it requires a parent to
establish, by a preponderance of the evidence, is that the parent has
regularly visited with the child, that the child would benefit from continuing
the relationship, and that terminating the relationship would be detrimental
to the child.” (Id. at p. 629; see § 366.26, subd. (c)(1)(B)(i).)
The parties disagree whether Mother preserved an argument that the
parental-benefit exception applies by failing to specifically raise it at the
selection-and-implementation hearing. We assume for purposes of this
appeal that by objecting to the termination of her parental rights and
testifying about her visits and bond with T.P., Mother sufficiently preserved
the issue. But we must reject her argument on the merits because there is no
indication that the juvenile court failed to properly apply the law when
considering whether the exception applied.
Caden C. stressed that “[a] parent’s continued struggles with the issues
leading to dependency are not a categorical bar to applying the [parental-
benefit] exception.” (Caden C., supra, 11 Cal.5th at p. 637.) Although a
parent’s continued struggles may be relevant to whether a child would
benefit from continuing a relationship and harmed by losing it, “[t]he parent’s
continuing difficulty with mental health or substance abuse may not be used
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as a basis for determining the fate of the parental relationship by assigning
blame, making moral judgments about the fitness of the parent, or rewarding
or punishing a parent.” (Id. at p. 638.) And a parent’s struggles are not
relevant insofar as they could affect a parent’s ability to regain custody of a
child, because return to the parent’s custody is not an option at a selection-
and-implementation hearing. (Ibid.)
Mother claims that the juvenile court improperly relied on her failure
to reunify with T.P. despite having a long time to do so as a reason to
terminate parental rights. Not so. The court’s comments about the length of
time Mother was provided to reunify was made in the context of its
observations on how difficult the decision to terminate parental rights is.
There was no serious dispute that Mother worked hard to try to reunify, that
she loved T.P. and had a positive relationship with him, and that the decision
to terminate parental rights was a difficult one. But the court nonetheless
found that no exceptions to termination of parental rights existed.
We also reject Mother’s brief argument that insufficient evidence
supports the juvenile court’s conclusions. We review factual determinations
underlying the exception for substantial evidence. (Caden C., supra,
11 Cal.5th at p. 640.) But “the ultimate decision—whether termination of
parental rights would be detrimental to the child due to the child’s
relationship with his parent—is discretionary and properly reviewed for
abuse of discretion.” (Ibid.)
There apparently is no dispute that the first element of the parental-
benefit exception, that Mother had regular visitation and contact with T.P.,
was met here. (Caden C., supra, 11 Cal.5th at p. 632.) But little evidence
was presented on the second two elements, whether T.P. would benefit from
continuing the relationship and whether termination would be detrimental to
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him. Given the entire record, we cannot say that the juvenile court erred in
finding that mother failed to sustain her burden of establishing the parental-
benefit exception, or that it abused its discretion in terminating parental
rights. This, ultimately, was the conclusion in Caden C.—that the juvenile
court had not abused its discretion when it decided that the parental-benefit
exception applied. (Id. at p. 642.) We likewise conclude that the court here
did not abuse its discretion when it concluded that the exception did not
apply.
III.
DISPOSITION
The order terminating parental rights is affirmed.
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HUMES, P. J.
WE CONCUR:
MARGULIES, J.
SANCHEZ, J.
A163149
In re T.P.
9