In re Andrew M.

Filed 3/13/07 In re Andrew M. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Julia Craig Kelety, Judge. Affirmed.

Jacqueline B. appeals a judgment terminating her parental rights to her son, Andrew M. She contends insufficient evidence supports the court's finding the beneficial parent-child relationship exception to termination of parental rights did not apply. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On February 25, 2005, the San Diego County Health and Human Services Agency (Agency) filed a petition alleging Andrew M., age five, had suffered, or was at substantial risk of suffering, serious physical harm as a result of his mother's inability to properly care for him due to mental illness. (Welf. & Inst. Code,  300, subd. (b).)^[1] On February 23, 2005, Andrew was hospitalized and treated for hypothermia after he stood in the rain with his mother, Jacqueline, from approximately 3:30 a.m. until 5:00 a.m. Jacqueline was committed under section 5150. Her mental health condition was later diagnosed as psychotic disorder, not otherwise specified, and posttraumatic stress disorder, provisional.

Andrew was released from the hospital to the care of his maternal grandmother (grandmother) and her husband (together, caregivers). Andrew had lived with grandmother periodically since his birth, and they shared a deep bond.

At the jurisdiction and disposition hearing, the court sustained the petition under section 300, subdivision (b), removed Andrew from parental custody,^[2]and ordered the

Agency to provide reunification services to Jacqueline. The Agency continued Andrew's placement with his grandmother.

During the 12-month reunification period, the Agency provided Jacqueline with a psychological evaluation, individual therapy, evaluation and monitoring of psychotropic medication, a parenting education program, and substance abuse services. Jacqueline participated in a psychological evaluation and therapy, completed a parenting class and fully complied with substance abuse program requirements. However, she refused medication, remained intermittently psychotic, and was homeless.

At the time of the 12-month hearing, Jacqueline was actively delusional and paranoid, and at serious risk of having a psychotic break. The court found that Jacqueline tried hard to fulfill case plan requirements but she did not make progress in alleviating or mitigating the problems that led to the dependency proceedings. The court terminated reunification services and set a hearing to select and implement a permanent plan for Andrew.

Throughout the proceedings, Jacqueline visited Andrew at grandmother's home three to four times each week, staying from two to five hours each visit. Grandmother always supervised Jacqueline's visitation. Jacqueline helped with Andrew's daily care, played games with him, and accompanied grandmother to Andrew's doctor visits. Although her financial resources were limited, Jacqueline provided money for Andrew's activities and gave him candy and toys.

The contested section 366.26 hearing took place on November 6, 2006. Jacqueline asked the court to appoint grandmother as Andrew's legal guardian rather than terminate her parental rights. She asserted she and Andrew shared a beneficial parent-child relationship. ( 366.26, subd. (c)(1)(A).) The Agency recommended termination of parental rights and adoption by grandmother, who had been designated by the court as the prospective adoptive parent. ( 366.26, subd. (n).)

The social worker testified Andrew enjoyed having his mother in his life but preferred to live with his caregivers. Andrew was a joyful, remarkably well-adjusted child whose primary attachment was to his caregivers. He was excelling at home and at school. The social worker observed visits between Jacqueline and Andrew at grandmother's home. At times, Andrew was actively involved with Jacqueline, and at other times he was not. When Andrew was hungry, he went to his grandmother for assistance. Grandmother was the parental figure in his life. She was very protective of Andrew and understood the need to supervise his contact with Jacqueline. The social worker opined termination of parental rights would not be detrimental to Andrew because adoption would not alter his relationship with his mother.

The court determined Jacqueline had regular and consistent visitation with Andrew, and was devoted to him. The court was mindful of the serious incident that caused the dependency proceedings, and recognized that the substantial amount of time Jacqueline was able to spend with Andrew was made possible by grandmother's assistance and support. The court found that Andrew's relationship with Jacqueline did not outweigh the benefit of having a permanent, stable home with grandmother through adoption, and terminated parental rights. ( 366.26, subd. (c)(1).)

DISCUSSION

A

Jacqueline contends insufficient evidence supports the selection of adoption as the appropriate permanent plan for Andrew. She argues she maintained regular visitation and contact with Andrew throughout the dependency proceedings, and termination of parental rights would be detrimental to Andrew due to his significant and beneficial relationship to her. Jacqueline argues the balancing test set forth in In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.), is based on an outdated "all-or-nothing" view that a child has a single primary bonded relationship with a caregiver, and does not take into account the importance of other relationships in the child's life in maintaining the child's sense of stability and well-being. (Arredondo and Edwards, Attachment, Bonding, and Reciprocal Connectedness, Journal of the Center for Families, Children and the Courts (2000) Westlaw, 2007 WL 2 JCFAMCC 109, 123.) She asserts the evidence clearly shows guardianship is the most appropriate permanency plan for Andrew.

The Agency contends Jacqueline does not meet her burden to show there is no substantial evidence in the record to support the court's judgment. The Agency acknowledges Jacqueline maintained regular and consistent visitation with Andrew as required by the first prong of section 366.26, subdivision (c)(1)(A), but argues she did not show Andrew would benefit from continuing the parent-child relationship as required by the second prong of the subdivision. The Agency states the standard for determining benefit from continuing the parent-child relationship was established by Autumn H., and asserts the juvenile court properly terminated parental rights and freed Andrew for adoption.

B

Adoption is the permanent plan preferred by the Legislature. (Autumn H., supra, 27 Cal.App.4th at p. 574.) Section 366.26, subdivision (c)(1) states in pertinent part:

"If the court determines, . . . by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. . . . A finding under . . . Section 366.21 or 366.22, that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances:

"(A) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."

To overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent. (In re Derek W. (1999) 73 Cal.App.4th 823, 826-827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) We recognize that interaction between parent and child will always confer some incidental benefit to the child. (Autumn H., supra, 27 Cal.App.4th at p. 575.) In the context of section 366.26, subdivision (c)(1)(A), "benefit" means 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 adoptive parents." (Ibid.) However, "[i]f severing the natural parent-child parental relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (Ibid.)

We determine whether there is substantial evidence to support the court's ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) The party challenging the ruling bears the burden of showing there is insufficient evidence to support the ruling. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

C

Jacqueline criticizes the definition of "benefit" set forth in Autumn H. Although her discussion of the importance of multiple attachment relationships in a child's life is interesting, we do not believe the issue is pertinent here, either legally or factually. The Autumn H. balancing test used to determine whether the child would benefit from continuing the relationship with a parent has been applied by this and other appellate courts for more than 12 years, and is settled law. (See, e.g., In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449-450; In re Dakota H. (2005) 132 Cal.App.4th 212, 229; In re Angelique C. (2003) 113 Cal.App.4th 509, 519; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1347; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1416-1420.)

As a practical matter, the record supports the conclusion the prospective adoptive parent intended to allow the parent-child relationship to continue in the same manner as it had throughout the dependency proceedings. Thus to the extent that Jacqueline's relationship with Andrew was important to him, a change in Jacqueline's legal status as a parent will not affect Andrew's sense of stability and well-being. (See Arredondo and Edwards, Attachment, Bonding, and Reciprocal Connectedness, Journal of the Center for Families, Children and the Courts, 2007 WL 2 JCFAMCC, supra, pp. 122-123.) The facts, however, support the conclusion that Andrew did not rely on Jacqueline for security or stability.

When the dependency proceedings began, the parent-child relationship was detrimental to Andrew, who suffered serious physical harm while in Jacqueline's care and was hospitalized. Jacqueline's mental health did not significantly improve during the reunification period. She refused treatment and remained intermittingly psychotic. Significantly, her interactions with Andrew required constant supervision. Jacqueline's mental condition presented a continued risk to Andrew's safety and well-being, and the court could reasonably conclude that her relationship with him was not that of a responsible caregiver, that is, it was not parental in nature.

Jacqueline acknowledges Andrew's relationship with grandmother was strong and "of great benefit" to him. Although Jacqueline was a constant part of Andrew's life, he looked to his grandmother to meet his needs, even when Jacqueline was present. The record supports a reasonable inference that any benefit Andrew may have derived from his relationship with Jacqueline was due in large measure to the safety, stability, and protection provided by his grandmother. Andrew expressed a desire to stay with grandparents until he was an adult, and characterized his parents as "mean" and his caregivers as "nice." Thus the court could reasonably conclude Andrew did not have a substantial, positive emotional attachment to his mother that would outweigh the benefit he would derive from a permanent, stable home with his grandmother. (Autumn H., supra, 27 Cal.App.4th at p. 575.)

Jacqueline also argues the social worker's emphasis on the preservation of the parent-child relationship proves the contrary, that is, termination of parental rights would be detrimental to Andrew. The social worker testified Andrew would not be greatly harmed by termination of parental rights because termination would not alter his relationship with Jacqueline. We believe the social worker's statements are merely a reflection of the unique circumstances of this case.

Although termination of parental rights will deprive Jacqueline of the legal authority to make any decisions with respect to Andrew's care, custody, health, education and welfare, as a practical matter, the record shows Jacqueline will continue to be a part of Andrew's life. Given Andrew's age, the stability of his placement, the supportive relationship between his mother and grandmother, and grandmother's stated intent to allow the parent-child relationship to continue as before, adoption will protect Andrew and provide him lifelong security in the home of his primary beneficial caregiver without disrupting his visitation and contact with Jacqueline. Thus, the likelihood that termination of parental rights would result in any change, trauma or upheaval in Andrew's life was minimal.

The record amply supports the court's determination that termination of parental rights would not be detrimental to Andrew. ( 366.26, subd. (c)(1).) Andrew's relationship with Jacqueline was not parental in nature. To the extent the relationship was parental in nature, any benefit to Andrew by continuing the parent-child relationship was outweighed by his strong and secure bond with the prospective adoptive parent and the permanency provided by adoption. (Autumn H., supra, 27 Cal.App.4th at p. 575.) Further, termination of parental rights would not significantly alter Andrew's current relationship with Jacqueline, and any sense of stability and well-being he may have derived from their relationship was likely to continue.

We conclude that substantial evidence supports the court's finding the beneficial parent-child relationship under section 366.26, subdivision (c)(1)(A) did not apply to preclude termination of parental rights. There is no error.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

NARES, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

^[1] Unless otherwise specified, statutory references are to the Welfare and Institutions Code.

^[2] Andrew's father is not a party to this appeal.