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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


T.N.,
         Petitioner,
v.
THE SUPERIOR COURT OF SAN                                            A148139
FRANCISCO COUNTY,
                                                                     (San Francisco County
         Respondent;                                                 Super. Ct. No. JD15-3368)
SAN FRANCISCO HUMAN SERVICES
AGENCY,
         Real Party in Interest.


         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),1 permitting 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-and-
implementation 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)




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