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Filed 6/30/16 T.N. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

T.N.,

Petitioner,

v.

THE SUPERIOR COURT OF SAN 

FRANCISCO COUNTY,

Respondent;

SAN FRANCISCO HUMAN SERVICES 

AGENCY,

Real Party in Interest.

 A148139

 (San Francisco County

 Super. Ct. No. JD15-3368)

T.N. (mother) petitions this court for extraordinary writ review of a juvenile court 

order bypassing reunification services and setting a selection-and-implementation hearing 

for her baby son, R.N. She argues that the juvenile court’s denial of reunification 

services should be reversed, both because she had recently made progress in addressing 

her history of substance abuse and because she received inadequate notice of one of the 

two interrelated statutory grounds relied upon to deny her services. We are not persuaded 

by these contentions and deny the petition. 

I.

FACTUAL AND PROCEDURAL

BACKGROUND

Mother has four older children, none of whom were in her care when she was 

pregnant with R.N. Mother’s oldest child was adopted at the age of three after mother 
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failed to reunify with the child and her parental rights were terminated, another child was 

placed for adoption immediately after she was born, and a third child was living with his 

godmother through a family arrangement. 

Mother and R.M. (father) had a child together (mother’s fourth) in April 2014. 

Mother and the baby tested positive for cocaine and crystal methamphetamine. The child 

was placed with father but later was taken from his care, and both parents’ parental rights 

were terminated a few days before R.N. was born. During the proceedings related to the 

child, mother hit father in a courtroom hallway causing his ear to bleed, and restraining 

orders were put in place to protect father and the older sibling from mother. 

Mother was hospitalized during her pregnancy with R.N. after she suffered a 

ruptured gallbladder in November 2015, and she tested positive for methamphetamine

and other drugs when she was admitted to the hospital. She remained hospitalized and 

gave birth to R.N. after she was induced into labor in early December. Real party in 

interest San Francisco Human Services Agency (Agency) filed the dependency petition in 

these proceedings three days later after it received reports of mother’s positive drug test. 

The petition alleged that mother had a substance-abuse problem that led to R.N. suffering 

withdrawal symptoms after his birth and that mother and father had a relationship 

affected by domestic violence. The petition also alleged that the parents had “a long 

[and] extensive” history with child protective services (CPS). 

The Agency’s detention report recommended that reunification services not be 

provided in these proceedings “per § 361.5 of the W&I Code,” an apparent reference to 

Welfare and Institutions Code section 361.5, subdivision (b),1permitting the bypass of 

reunification services under certain circumstances. R.N. was ordered detained. 

The assigned social worker and various extended family members participated in a 

team decision meeting in late December 2015 or early January 2016 to discuss options 

for R.N., but neither parent showed up despite receiving notice of the meeting. The 

 

1 All statutory references are to the Welfare and Institutions Code.
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parents were permitted weekly, two-hour visits with R.N., which went well “for the most 

part.” Mother had her gallbladder removed on January 15. 

In the disposition report filed on January 20, the Agency recommended that no 

reunification services be provided to the parents under section 361.5, subdivision (b)(10), 

which permits the bypass of services where reunification services previously have been 

terminated for any siblings or half siblings of the minor. The disposition report provided 

more detail about mother’s “extensive CPS history” dating back to 1999, including the 

termination of parental rights to two older siblings. The Agency recommended that the 

juvenile court adjudge R.N. a dependent child and proceed to a selection-andimplementation hearing under section 366.26. 

Mother missed three drug tests in January but regularly tested clean after she 

began testing later that month. Mother entered a residential treatment program in 

February 2016 after the narcotics she took for her gallbladder surgery left her system, but 

she left the program after six days. About a week later, she entered another residential 

treatment program. 

In advance of the disposition hearing, the Agency asked the juvenile court to take 

judicial notice of seven documents from the dependency proceedings regarding the 

parents’ older joint child, including the December 2015 order terminating their parental 

rights. The Agency also requested that the court take judicial notice of four documents 

from the dependency proceedings regarding mother’s oldest child (R.N.’s half sister), 

including the February 2004 order terminating mother’s parental rights. No party 

objected, and the juvenile court took judicial notice of the documents. 

A contested jurisdiction/disposition hearing was held over three days in March and 

April 2016. The social worker assigned to the case testified that mother had been in a 

residential treatment program for about three weeks, and the program was expected to 

last about six months or longer. Mother reportedly was doing well in the program, and 

she was participating, following directions, and engaging in therapy. She also was 

participating in dependency drug court and doing well. So far as the social worker was 
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aware, however, neither parent had engaged in domestic-violence counseling despite their 

history of domestic violence. 

Mother testified about her recent participation in various programs to promote her 

sobriety and mental health. She acknowledged that she had previously participated in 

two other residential treatment programs but relapsed both times. Mother testified that 

she was benefitting from her current program because she was “learning about [her] 

triggers” and “learning how to cope with that [wanting to use drugs] and work through it 

without going to use.” Unlike in previous programs where mother “slipped through the 

cracks,” mother was “learning that I need to speak up when I—how I feel or when I feel 

like using. And I’m learning how to accept that I do have a drug problem, and I want to 

address it.” She also had undergone one counseling session for domestic-violence issues 

and was “learning to know what my angers are and how to control them . . . better.” 

Mother testified that she no longer had an urge to use drugs, she regretted using them in 

the past and losing parental rights to her older daughter, and she “just want[ed] to be a 

mom to my baby.” She acknowledged on cross-examination that she had been using 

drugs off and on for nearly 20 years, since she was 14. Father also testified at the 

hearing. 

Following the presentation of evidence, counsel for the Agency asked that the 

dependency petition be amended to conform to proof. Without objection, the petition 

was amended to include allegations that mother lost her parental rights to two of her other 

children. The Agency’s counsel then argued that the court should sustain the petition as 

amended and that no reunification services be provided under section 361.5, 

subdivision (b)(10) as well as under subdivision (b)(11), which had not previously been 

raised. R.N.’s attorney joined the recommendation. Mother’s counsel did not object to 

the fact that the Agency had not previously cited section 361.5, subdivision (b)(11) as a 

basis to bypass services. Counsel argued that mother had shown she was committed to 

staying sober and had made reasonable efforts to address the problems that led to services 

being bypassed in previous proceedings (§ 361.5, subd. (b)(10) & (11)). 
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The court sustained the allegations of the amended dependency petition, adjudged 

R.N. a dependent minor, and ordered under section 361.5, subdivision (b)(10), that 

reunification services not be provided to the parents in light of their failure to reunify 

with R.N.’s sibling. The court then asked whether the Agency was asking for a finding 

under section 361.5, subdivision (b)(11), and the court made such a finding (that the 

parents would not receive reunification services because their parental rights to a sibling 

had been terminated) after the Agency’s counsel confirmed she was requesting a ruling 

under that provision. The court further found that reunification with the parents was not 

in R.N.’s best interest. A selection-and-implementation hearing under section 366.26 

was scheduled for August 4. 

Both parents filed notices of intent to file a writ petition, but only mother filed a 

petition for extraordinary writ review. 

II.

DISCUSSION

Mother argues that the juvenile court erred when it denied her reunification 

services, but we disagree. 

When a child is removed from the custody of his or her parents, the juvenile court 

must order reunification services to the parents unless one of several statutory exceptions 

applies. (§ 361.5, subds. (a) & (b).) Section 361.5, subdivision (b)(10) and (11) provide 

exceptions to the provision of services where a parent has failed to reunify with another 

child ((b)(10)) or where the parental rights to another child were terminated ((b)(11)) if 

the court finds that the parent “has not subsequently made a reasonable effort to treat the 

problems that led to removal of the sibling or half sibling of that child from that 

parent . . . .” When an exception applies under subdivision (b)(10) or (11), the court shall 

not order reunification services unless it finds, by clear and convincing evidence, that 

reunification is in the best interest of the child. (§ 361.5 ,subdivision (c).) In other 

words, “ ‘ “the general rule favoring reunification is replaced by a legislative assumption 

that offering services would be an unwise use of governmental resources,” ’ ” and it is the 

parent’s burden to change that assumption. (In re William B. (2008) 163 Cal.App.4th 
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1220, 1227.) “We review an order denying reunification services by determining if 

substantial evidence supports it.” (In re Gabriel K. (2012) 203 Cal.App.4th 188, 196; see 

also Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.) 

Mother does not dispute that she failed to reunify with two older children or that 

her parental rights to them were terminated, and she does not challenge the jurisdictional 

findings to that effect. She contends, however, that she made reasonable efforts to 

address the problem that led to the siblings’ removal, namely, her long history of drug 

abuse, and she points mostly to her own testimony that she was ready to remain drug-free 

despite previous failures to do so. “[T]he ‘reasonable effort’ language in the bypass 

provisions [do not] mean that any effort by a parent, even if clearly genuine, to address 

the problems leading to removal will constitute a reasonable effort and as such render 

these provisions inapplicable. It is certainly appropriate for the juvenile court to consider 

the duration, extent and context of the parent’s efforts, as well as any other factors 

relating to the quality and quantity of those efforts, when evaluating the effort for 

reasonableness. And while the degree of progress is not the focus of the inquiry, a 

parent’s progress, or lack of progress, both in the short and long term, may be considered 

to the extent it bears on the reasonableness of the effort made.” (R.T. v. Superior Court

(2012) 202 Cal.App.4th 908, 914, original italics.) The juvenile court appropriately 

considered these relevant factors when it denied reunification services to mother. The 

court stated it had “nothing but respect [for mother] that she’s been clean for a month,” 

but noted that mother tested positive for drugs during her pregnancy at a time when an 

older sibling was the subject of dependency proceedings, had missed the team-decision 

meeting when R.N. was first removed from her care without a credible excuse, had left 

her first residential treatment program after only a few days because of anger issues, and 

had only just begun to address her decades-long history of substance abuse. We thus 

disagree with mother’s contention that there was “insufficient evidence presented that 

[she] was not on the road to recovery in many important ways.”

Once the juvenile court found that an exception to the provision of reunification 

services applied because mother had not made reasonable efforts to treat the problems 
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that led to the removal of her older children, the juvenile court was prohibited from 

offering reunification services unless it found by clear and convincing evidence that 

reunification was in R.N.’s best interest. (§ 361.5, subd. (c).) Mother’s trial attorney 

contended that there was clear and convincing evidence that it was in R.N.’s best interest 

to provide reunification services so that mother could show she could reunify with her

son. R.N.’s attorney disagreed that it would be in the baby’s best interest, because it 

would jeopardize his placement with a paternal uncle in Oregon. The juvenile court 

found that mother had not met her burden by even a preponderance of the evidence, let 

alone by clear-and-convincing evidence, because R.N. needed stability and would be best 

served by bonding with the proposed caretaker in Oregon. Mother does not challenge 

that finding, but she claims that the juvenile court nonetheless erred by “declaring that the 

burden was on the parent to show by clear and convincing evidence that family 

reunification services would be in the best interests of the child.” To the contrary, once 

an exception is established, the parent has the burden of proving his or her child would 

benefit from the provision of court-ordered services. (In re Lana S. (2012) 207 

Cal.App.4th 94, 109; In re William B., supra, 163 Cal.App.4th at p. 1227.) Given the 

baby’s undisputed need for permanence and stability, we decline to disturb the juvenile 

court’s conclusion that delaying a move to be with an out-of-state relative in order to 

provide services would not be in R.N.’s best interest.

We also reject mother’s argument that she was deprived of due process because 

“she was never put on notice” that the Agency was seeking bypass of services under 

section 361.5, subdivision (b)(11), applicable where a parent previously has lost parental 

rights to a child. She does not dispute that she had adequate notice that the Agency 

sought to bypass services under subdivision (b)(10), applicable where a juvenile court 

previously had ordered termination of reunification services as to a sibling because the 

parent “failed to reunify” with the sibling. As a practical matter, in most situations where 

a parent fails to reunify with a child, parental rights are then terminated unless the court 

finds that an exception to adoption applies (§ 366.26, subd. (c)), meaning that where 

section 361.5, subdivision (b)(10) applies, subdivision (b)(11) will likely apply as well.
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That was the case here, and the Agency detailed mother’s history in its reports that 

recommended the bypass of reunification services. Mother also received notice before 

the disposition hearing that the Agency sought judicial notice of the orders terminating 

her parental rights to her older children, and the court judicially noticed the orders 

without objection. Mother testified to the effect that she had previously had her parental 

rights terminated, and she has never disputed that fact, either in the juvenile court or in 

this writ proceeding. In this context, we cannot agree that mother lacked notice that she 

would not receive reunification because her parental rights previously had been 

terminated. And even if we were to agree that mother lacked sufficient notice that the 

Agency would seek to bypass services under section 361.5, subdivision (b)(11), such 

error would not be grounds for reversal, because mother was properly denied 

reunification services under the separate grounds set forth in subdivision (b)(10).

Like the juvenile court, we commend mother for her recent efforts to address her 

longtime substance abuse. Because substantial evidence supports the juvenile court’s 

order, we deny mother’s request for an extraordinary writ.

III.

DISPOSITION

Mother’s petition for an extraordinary writ is denied on the merits. The decision is 

final in this court immediately. (Cal. Rules of Court, rule 8.452(i), 8.490(b)(2)(A).) 

Mother’s request for a stay of the juvenile court’s August 4, 2016 hearing is denied as 

moot.
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_________________________

Humes, P.J.

We concur:

_________________________

Margulies, J.

_________________________

Dondero, J.

T.N. v. Superior Court of San Francisco County (A148139)