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Filed 11/17/21 In re T.T. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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 FOUR

In re T.T., a Person Coming Under 

the Juvenile Court Law.

SAN FRANCISCO HUMAN 

SERVICES AGENCY,

Plaintiff and Respondent,

v.

G.R.,

Defendant and Appellant.

A162584

(City & County of San Francisco

Super. Ct. No. JD19-3156)

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 “parentalbenefit” 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.

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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 “parentalbenefit” 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 longterm 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.