In re Brian J.

Filed 3/22/07 In re Brian J. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Bessie P. Dreibelbis, Judge. (Retired judge of the Mun. Ct. for the Bay Jud. Dist. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Cynthia Morton, Deputy County Counsel, for Plaintiff and Respondent.

Ellen L. Bacon, under appointment by the Court of Appeal, for Minor.

Lissette J. (mother) appeals from an order terminating her parental rights to her son, Brian J., contending the juvenile court erred in failing to apply the benefit exception codified in Welfare and Institutions Code^[1]section 366.26, subdivision (c)(1)(A). We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Brian, born March 2000, was detained by the Riverside County Department of Public Social Services (DPSS) on November 3, 2004. Three days earlier, mother had been hospitalized pursuant to section 5150 due to paranoid behavior; the record indicates that on Halloween night [s]he was apparently at her house when her window blinds moved. She felt afraid and took off with her son. Her mother [Brians maternal grandmother] called the police . . . . An assessment prepared at the mental health facility disclosed that she exhibited guarded behavior and minimized her drug use. According to the assessment, the grandmother reported that during mothers episodes of psychotic behavior and paranoid thoughts, she endangers her son by running out in the cold with her son not appropriately clothed. During mothers brief hospitalization, Brian was in the care of his maternal grandmother. Brians father was then incarcerated, having been convicted of spousal abuse and assault with a deadly weapon.^[2] Following mothers release, Brian remained with his grandmother for about a week, and was then placed with his paternal grandparents. Between 2002 and 2003, Brian had been in his grandparents care as a result of a prior dependency.^[3]

A juvenile dependency petition filed on November 5, 2004, alleged under section 300, subdivision (b), that mother suffered from mental illness and also had a history of abusing controlled substances. The petition further alleged that mother had failed to benefit from services previously offered to her by DPSS.

At the jurisdictional hearing on January 27, 2005, the court found the allegations of the petition, as amended, to be true. At the dispositional hearing two weeks later, Brian was declared a dependent child. The court ordered DPSS to provide services to Brians father, who was still incarcerated; however, pursuant to section 361.5, subdivision (b)(13), services would not be offered to mother.

Mother appeared at the six-month review hearing in August 2005. Brians father was not present, and although his progress in reunification had been unsatisfactory, the court ordered another six months of services.

Since the prior hearing, mother had been in and out of various mental health and substance abuse programs, and had been hospitalized again pursuant to section 5150. As of June, she was residing in a mental health facility and was being administered several psychotropic medications. During this period, mother contacted the social worker for the first time and said she wanted to visit with Brian. A visit was scheduled for June 10, 2006. The social worker brought Brian to the facility where mother was residing. Mother was appropriate and the visit went well. Mother asked the social worker how she could try to get Brian back, and the social worker told her to consult her attorney. After the visit ended, Brian told the social worker that he liked seeing mother.

Mother had another visit with Brian on September 30, 2005, at a fast-food restaurant. Mother acted appropriately and was very affectionate towards Brian. After the visit was over, Brian told the social worker that he had a good visit with mother, but appeared fearful that [the social worker] wouldnt bring him home. [She] reassured him and [they] joked around on the way back to his house and then he was fine.

Neither parent appeared at the 12-month review hearing in January 2006. The court terminated Brians fathers services and scheduled a permanency hearing for May 3, 2006. The social worker indicated that mother was a danger to herself and to others, as evidenced by a number of episodes of very bizarre behavior described in her report. Meanwhile, the paternal grandparents had given Brian the stability he had been lacking for the last year.

The permanency hearing eventually proceeded on June 21, 2006. DPSS was recommending terminating parental rights and freeing Brian for adoption. The social worker reported that Brians paternal grandparents were anxious and eager to adopt him. Brian had been living with his grandparents for about one and one-half years, and his younger half brother, with whom he had developed an appropriate sibling relationship, was also living there. Said the social worker: Brian is a typically older brother in that he can be loving one minute and aggressive the next.

According to the preliminary adoption assessment, Brian was able to understand that adoption would allow him to continue living with [his grandparents] until he becomes a grown up. He smiled when informed [his grandparents] would become his new mommy and daddy. He referred to his grandparents as nana and poppa, and wished to continue living with them. When asked if he would be able to still see his mother and father, [i]t was explained that he would be able to continue to see mom and dad and that [his grandparents] would make sure that it was safe and that he was always protected. Brian appeared satisfied with the explanation . . . . The assessment report also indicated that the grandparents are willing to consider limited healthy birth parent contact, and are supportive of ongoing contact between Brian and his extended maternal relatives.

Mother testified at the hearing that the last time she visited with Brian was a month earlier, at the DPSS office. For the past five months, her monthly visits, which usually last an hour, had been consistent. She generally brings Brian something to eat, and during the visits they talk and they play. In response to an inquiry as to what typically happens during a visit, she said when he comes up the stairs [he] goes mommy, mommy, mommy. I go baby, baby, baby. We hug and kiss, and we just share. She asks him what he likes watching; how he is doing in school, if he listens, and whether he has friends there. She also brings him toys. When the visit ends, he says, oh, momma, and then he knows he has to leave. She added: Sometimes he wants to hug me. When he sees his grandparents, he turns right away. Mother indicated that she had wanted more frequent visits, but was never able to get them, even though she tried talking to the social worker. The social worker never arranged for a visit outside the DPSS office.

Mother described her relationship with Brian as close. She said they have a strong bond, and that he knows she is his mommy. She added: I know that he wouldnt want to stop seeing me the same as me. She hoped the court would choose legal guardianship as an alternative plan to adoption.

After hearing closing argument, the court found that terminating parental rights would not be detrimental to Brian and that none of the exceptions set forth in section 366.26, subdivision (c)(1) applied. Thus, after finding that adoption was in Brians best interests, the court terminated parental rights as to both parents.

DISCUSSION

When the juvenile court finds by clear and convincing evidence that the child is likely to be adopted, the court must terminate parental rights and order the child placed for adoption unless it finds a compelling reason for determining that termination would be detrimental to the child due to one or more of specified circumstances. (In re Celine R. (2003) 31 Cal.4th 45, 49.) The parent opposing termination has the burden of showing that termination would be detrimental to the minor under one of the specified statutory exceptions. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 949; In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) The exception relevant here is as follows: The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(A).)

We review the juvenile courts ruling on whether an exception applies to termination of parental rights pursuant to section 366.26 for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576; In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425.) Under this standard, an appellate court must affirm the juvenile courts order if there is evidence that is reasonable, credible, and of solid value to support the order (In re Christina A. (1989) 213 Cal.App.3d 1073, 1080), and the evidence must be considered in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)

However, some courts have applied the abuse of discretion standard. (See, e.g., In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [applying parental benefit exception is a quintessentially discretionary determination].) The practical differences between the two standards of review are not significant. [E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . .  Broad deference must be shown to the trial judge. The reviewing court should interfere only if [it] find[s] that under all the evidence, viewed most favorably in support of the trial courts action, no judge could reasonably have made the order that he did. . . . [Citations.] (Ibid.)

For the exception to apply, the parent must have maintained regular visitation with the child, and the juvenile court must determine that the parent/child relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. (In re AutumnH., supra, 27 Cal.App.4th at p. 575.) To overcome the benefits associated with a stable, adoptive family, the parent seeking to invoke the section 366.26, subdivision (c)(1)(A) exception must prove that severing the relationship will cause not merely some harm, but substantial harm to the child. (In re Brittany C. (1999) 76 Cal.App.4th 847, 853.) Similarly, the exception does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1348; italics added.)

On the record before us, there is no question that the juvenile court was correct in finding that the subdivision (c)(1)(A) beneficial parental relationship exception did not apply. While the evidence shows that for five months prior to the permanency hearing mother enjoyed appropriate monthly visits with Brian, there simply is no evidence that the relationship was one which warranted a continuation of the parent-child relationship at the expense of an opportunity for love, nurturing, and emotional security in a forever home.

We reject mothers suggestion that legal guardianship would have been the better choice because Brian had no special needs that required a permanent plan of adoption. If that were true, virtually every juvenile dependency case would culminate with an order establishing a legal guardianship or implementing long-term foster care. That, of course, is not the law. Adoption is the favored permanent plan, and for good reason. Only the security of a permanent home can provide the typical dependent child with the stability which has been sorely lacking in the childs life. Brian is no different. Moreover, mother herself acknowledges that Brians paternal grandparents indicated a willingness to allow her to have continued contact with Brian. Thus, and to the extent permitted by the future state of mothers mental and emotional health, Brian will continue to be able to derive a benefit, if any, from his relationship with her.

DISPOSITION

The order terminating parental rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ McKINSTER

Acting P. J.

/s/ KING

J.

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^[1] All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.

^[2]According to mother, she and Brians father were married in September 2000. In December 2002 he filed for divorce, and as of December 2004 the matter was still pending. Brians father is not a party to this appeal.

^[3]Brian was eventually returned to mothers care, after which mother apparently limited the contact between Brian and his paternal grandparents.