Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. JD112103, Robert J. Anspach, Judge.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.
B. C. Barmann, County Counsel, and Jennifer L. Thurston, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
[ ]Before Levy, A.P.J., Cornell, J., and Dawson, J.
Tiffany B. appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her daughter, E.R. Appellant contends the court abused its discretion by: denying her petition to regain custody or reinstate reunification services (§ 388); and rejecting her claim that termination would be detrimental to the child (§ 366.26, subd. (c)(1)(B)(i)). On review, we will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In August 2006, child welfare services in Kings County initiated dependency proceedings as to 22-month-old E.R. and her two older half-siblings. The three children were in the care of appellant and E.R.’s father when the two adults were arrested for being under the influence of methamphetamine. At the time of her arrest, appellant also had unauthorized prescription drugs in her purse.
Shortly thereafter, appellant was placed on “Prop. 36” probation for a narcotic possession charge (Health & Saf. Code, § 11350, subd. (a)).
The following month the Kings County Superior Court exercised dependency jurisdiction over the children pursuant to section 300, subdivision (b). It also transferred out the case to Kern County where the family lived.
Starting in October 2006, respondent Kern County Department of Human Services (the department) provided appellant with the names of approved service providers as well as its recommendations for reunification services. It also informed her she would be placed on a call-in system for random drug testing. Although appellant expressed a willingness to comply, she made no effort to take advantage of the services. She also tested positive for methamphetamine.
The Kern County Superior Court accepted the case’s transfer and, in November 2006, adjudged the children dependents, removed them from appellant’s custody, and ordered six months of reunification services for her. The court ordered appellant to successfully complete substance abuse counseling and parenting training as well as to submit random drug testing. It also ordered supervised visits to occur twice weekly for one hour.
At the same hearing, the court placed the two older children with their father under a plan of family maintenance services and reserved the issue of relative placement for E.R. In December 2006, the department placed E.R. with her paternal grandparents. She has remained in their care ever since.
Reunification Period
During the first six months of court-ordered services, appellant consistently visited her children and they reportedly had a good bond. She otherwise did not comply with the reunification plan. She enrolled in parent training in January 2007 but was dropped the following month for nonattendance. She did not provide proof of enrollment for substance abuse counseling. At most, in late March 2007, she claimed she had an intake appointment scheduled for such counseling. She also repeatedly failed to test, leading to presumptively positive tests. When she did test, the results were either positive for methamphetamine or marked as suspicious.
Despite appellant’s lack of effort, the court in April 2007 continued reunification services. Once more, she did not take advantage of those services but she did consistently visit the children. According to the social worker supervising those visits, the children and appellant enjoyed their visits and the children had a good bond with appellant. Also, at best appellant twice tested negative for drugs, once in June and the other time in July 2007. Otherwise, in 2007, she failed to drug test numerous times leading to presumptively positive results, tested twice in April with results marked as suspicious, and tested positive and at a strong level for methamphetamine twice in August.
Meanwhile, appellant violated the terms of her Prop. 36 probation. Consequently, at a July 16, 2007 probation violation hearing, the Kings County Superior Court discharged her from “Prop. 36” probation, placed her on five years’ felony probation, and ordered her to successfully complete a residential drug treatment program with a live-in component for a minimum duration of 90 days. The court also authorized appellant to complete the program in either Kings or Kern County. Random drug testing, except while in a program, was not a probation requirement.
Two weeks later, appellant had her intake appointment and was placed on the waiting list with Cornerstone Recovery Systems in Kings County. Although she did not call in everyday as required, she eventually entered the program’s detoxification portion on August 26, 2007. At that time, appellant admitted she abused Vicodin, but claimed she last used methamphetamine over a month earlier. She also told the program she was pregnant.
Appellant then learned that Cornerstone’s perinatal program was a mandatory four to six months in length. Under the impression she only had to do a 90-day program, appellant appeared “kind of up in the air and [did]n’t know if she [would] stay.” She left the Cornerstone program on August 29, claiming she had until September 14th to get into a program.
September 14, 2007, was also the date of the status review hearing for appellant’s children. At the start of the September 14th hearing, appellant’s trial counsel informed the court that she entered the “Capistrano Community” on September 4th and would be done in approximately 90 days. While there, she could engage in “substance abuse counseling, parent training, child abuse and neglect.” Counsel claimed “[s]he left the program in another county in order to be closer to the family.” He asked the court to consider extending further services based on her intent to stay and complete the program.
Order Terminating Services and Setting Section 366.26 Hearing
The court found appellant made no progress nor acceptable efforts to avail herself of services and that there was not a substantial probability that any of the children would be returned to appellant within six months. In turn, the court terminated reunification services and, in E.R.’s case, set a section 366.26 hearing to select and implement a permanent plan for her. In the older children’s cases, the court awarded physical custody to their father with joint legal custody to both parents and terminated dependency jurisdiction.
Recommendation to Terminate Parental Rights
In advance of the section 366.26 hearing, the department prepared a social study in which it recommended the court find E.R. adoptable and terminate parental rights. Three-year-old E.R. was in excellent health and appeared to be developmentally advanced. She was very friendly and liked to interact; she also did not have any behavioral problems. The paternal grandparents with whom she had been placed since December 2006 were committed to adopting E.R. She was too young to make a statement regarding her placement or the adoption recommendation. However, a strong bond had developed between E.R. and her paternal grandparents.
On the subject of parent/child visitation, the department reported appellant consistently visited E.R. twice weekly for one hour. Case records revealed approximately 63 supervised visits between all three children and appellant. Summaries of some visits during the reunification phase revealed the children were happy to see appellant, exchanged hugs and kisses, and played together and with appellant. “Overall visit[s] went well” and ended without incident.
The department’s social study described the relationship between appellant and E.R. in the following terms:
“There is not a substantial relationship between the child and her birth mother. She has not resided with her mother in over one year. Whatever bond that they did have has diminished, as she has not resided with her mother on a daily basis, looked to her to meet her daily needs, or as a parental figure. She does recognize her mother, as the birth mother [and] has maintained consistent contact. [E.R.] has resided with her current caregivers for over one year and has established a parent/child bond, looking to her paternal grandparent caregivers to meet her daily needs. She looks to her current caregivers as parental figures.”
Appellant’s Section 388 Request
On the figurative eve of the January 2008 section 366.26 hearing, appellant’s trial counsel filed a request pursuant to section 388 to modify the court’s September 14th orders and either place E.R. in appellant’s care or reinstate reunification services. According to the section 388 request, appellant completed a 60-day residential drug treatment program as well as a 30-day sober living program, parenting classes, and an abuse and neglect program. She also randomly tested for drugs 11 times with negative results. Counsel further alleged a new order would be in E.R.’s best interests because appellant and E.R. lived together for the child’s first year of life and thereafter regularly and consistently visited so as to establish and further develop a parent/child bond. The court set the section 388 request for hearing.
The department responded with a supplemental report. In it, a social worker described her January interview of appellant. At that time, she was living with and supported by a boyfriend who was the father of her unborn child. Their apartment was neat, clean and adequately furnished.
Appellant discussed her history of substance abuse, stating E.R.’s father introduced her to methamphetamine. She also reported stress in her life, that is raising her two older children while working, led her to abuse methamphetamine with E.R.’s father. She claimed she was currently drug-free and had been so for the preceding five months. She admitted making bad choices in the past.
She believed she would be able to remain drug-free because she knew the consequences should she lapse again. She added that, as a term of her probation, she attended one NA meeting every week.
The social worker was unable to reach appellant’s probation officer. Nonetheless, she did confirm appellant successfully completed a 60-day residential treatment program, an additional 30-day sober living program, and a parenting course as well as a neglect and abuse program at Capistrano as of mid-December 2007.
Despite appellant’s recent sobriety, the department recommended the court deny her section 388 request. It argued her methamphetamine use spanned a considerable time in comparison to her recent sobriety and that it was in E.R.’s best interests to remain in her current home, free of substance abuse and instability.
Combined Section 388 and 366.26 Hearing
The court conducted a combined section 388 and section 366.26 hearing in mid-January 2008. Appellant called as her first witness a social worker who, starting in October 2007, supervised appellant’s visits with E.R. and her other children.
Asked to describe in general how E.R. reacted to appellant during those visits, the social worker replied E.R. appeared to be happy to see appellant and greeted her with a hug and sometimes a kiss. During their one-hour visits, appellant and E.R. engaged in conversation and play. The social worker believed there was a relationship between E.R. and appellant. The witness also believed E.R.’s reaction to appellant was similar to what she (the social worker) observed between E.R. and her caretakers before and after visits in that she greeted them similarly to how she greeted appellant. In moments during the supervised visits when E.R. needed comfort, for instance if she bumped her knee, she turned to appellant and appeared to respond to her comforting. The social worker also testified E.R. called appellant “Mama,” her paternal grandfather “Papa,” and her paternal grandmother “Grandma.”
On cross-examination, the social worker clarified that the moments when E.R. needed comfort occurred while her grandparents were not present. E.R. also did not experience any distress nor did she have any difficult leaving appellant and returning to her grandparents when a visit concluded. In addition, the social worker confirmed that E.R. and the grandparents shared a parent/child bond and that the couple met the child’s daily needs. When asked to describe from her observations the type of relationship E.R. and appellant had, the social worker replied at times they play with each other as would friends, “but it’s usually, now, [appellant] directs the actions.” No one sought clarification of the social worker’s statement.
Appellant also testified in support of the allegations contained in her section 388 request. Notably, she claimed she left the Cornerstone drug treatment program in late August because she wanted to enter a Kern County facility in order to be closer to her children. She testified she decided to enter residential drug treatment because she wanted to change her life and regain her children. Her boyfriend influenced her decision as well. She completed the residential drug treatment and sober living programs in early December 2007.
Although she started living with her boyfriend while she was still testing positive for drugs, she testified she never had known him to use illegal substances. Their baby was due in April 2008. He was also supportive of her regaining custody of E.R.
Appellant believed she “learned a lot” from the programs she completed and the information would be “beneficial” in caring for her children. Regardless of whether she regained custody of her children, she was not going to ever use again. With respect to her prior drug use during reunification services, appellant volunteered “I can’t say I had the urge to use, but I didn’t have the urge to stop.”
She also attended NA meetings once a week and was on her fourth step. She did not as yet have a sponsor. Asked if she anticipated NA to be a lifelong program for her, appellant replied, “It’s working.”
Appellant disagreed with the department’s position that she did not have a substantial relationship with E.R. She acknowledged E.R.’s interaction with her had “changed a little because she is no longer living in my care.” E.R. also looked to her grandparents for her basic care and needs. However, appellant believed she and E.R. currently had just as good a relationship as they had before E.R.’s detention.
On cross-examination, appellant gave contradictory answers regarding her drug history. Asked when she began using drugs, she answered she started using pain pills in 2004 and methamphetamine in the beginning of 2005. She then testified she started using methamphetamine in October 2006. Acknowledging she was not living with E.R. then, she testified she used Vicodin when she lived with E.R.
She also admitted that her residential drug treatment was a condition of her probation, adding “it was something I agreed to.” She also conceded one of the reasons she entered residential drug treatment was to “avoid jail time.” She planned on staying sober for the rest of her life by “stay[ing] away from people, places and things, continue going to my meetings every Saturday.”
After appellant rested her case, E.R.’s counsel called the paternal grandfather as a witness. Relevant to this appeal, he testified E.R. neither talked nor asked about appellant. In addition, the three year old never stated she missed appellant nor did she ask to visit appellant. When the child cried, she did not cry for or want appellant. Rather, E.R. cried for her grandmother.
In addition, E.R. understood she had a mom and dad as well as a grandma and grandpa. Home to E.R. was the house she shared with her grandparents. She never talked about going home to appellant’s home. Asked if he had seen any changes in E.R.’s attitude towards appellant, the paternal grandfather replied “things haven’t changed much. She has always considered mom to be a visitor.”
The paternal grandfather also testified he had known appellant for more than three years and was aware that she used drugs with the witness’s son.
“What I saw was a progression in the use of drugs to the point where, for approximately one year before the children were taken, they were both in pretty bad shape on a combination of drugs that they told me they were [using].”
The paternal grandfather described the couple’s living situation before the children’s removal as “chaos.”
He also agreed with the department’s assessment that E.R. saw him and his wife as her parents. When asked to tell the court why, he explained:
“The way she acts on a daily basis, she looks to us for everything. She, about three or four months ago, started testing the water on what she could call us. She started to begin with me, she started calling me daddy. And because of the proceedings, I told her no, [E.R.], you have a daddy. You have a mommy and grandmother and grandfather.”
“And more recently she has been testing. She will walk away from me and she will say, thanks, dad, yeah, dad, I’ll be right back, dad. It’s clear she is testing. But we don’t know quite what the situation is going to be.”
Finally, the paternal grandfather testified about his belief that it was in E.R.’s best interest to stay in his home.
“Because we are sure she is safe. We are sure she is protected and we love her. She loves us. She has bonded with her brothers, very close with her brother. She has close bonds with all of her cousins now and engages in activities with them. And its clear to me that she sees her future there.”
After closing arguments, the court denied appellant’s section 388 request with these observations: although the court was impressed by appellant’s recent progress to straighten out her life, it concluded she had not successfully satisfied her burden to show circumstances had changed to warrant modification. The court also found she failed to satisfy her burden to establish that maintaining the parent/child relationship outweighed the benefit of adoption. Finally, having found by clear and convincing evidence that E.R. was likely to be adopted, the court terminated parental rights.
DISCUSSION
I. Section 388 Request
Appellant contends the superior court abused its discretion by denying her modification request. According to appellant, she established changed circumstances by successfully completing and benefitting from all of the requirements of her former reunification plan. Applying factors set forth in In re Kimberly F. (1997) 56 Cal.App.4th 519, appellant further claims that allowing E.R. to be reunified with her was in the child’s best interests.
Any party may petition the court to modify or set aside a prior order on grounds of changed circumstance or new evidence. (§ 388, subd. (a).) The petitioning party must also show the proposed change is in the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Even after a court terminates reunification services, section 388 provides a means for the court to address a legitimate change of circumstances while protecting a child’s need for prompt resolution of his or her custody status. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Whether the juvenile court should modify a previously-made order rests within its discretion and its determination may not be disturbed unless there has been a clear abuse of discretion. (In Stephanie M., supra, 7 Cal.4th at p. 318.) Having reviewed the record as summarized above, we conclude the court did not abuse its discretion by denying appellant’s section 388 request. (Ibid.) Appellant neither established a legitimate change of circumstance to justify a new and different order nor did she show it would be E.R.’s best interests to do so.
A. Change of Circumstances
No doubt there was evidence appellant’s circumstances had changed between September 2007 when the court terminated reunification services and January 2008 when it heard evidence on her section 388 request. As of September 2007, appellant essentially did nothing in a year’s time to reunify with any of her children and meanwhile continued to abuse drugs. By January 2008, she completed 90 days of residential drug treatment and sober living, as well as a parenting class at Capistrano. In addition, she tested negative for drugs over a period of four months and attended NA meetings once-a-week. However, the evidence also contained red flags about that change and her chances for long-term sobriety which undermined her showing.
First, the change in appellant was very recent and relatively untested. As of the January 2008 hearing, it had been less than 45 days since her release from Capistrano. Also, she was once again living with the same person she lived with in the summer of 2007 while she still abused drugs. Furthermore, despite her recent claim that stress in her life, that is, raising her two older children while working, led her to abuse methamphetamine, there was no evidence regarding whether she had learned to cope with the stresses of life without resorting to drug abuse. At most, she testified she would “stay away from people, places and things, continue going to my meetings every Saturday.”
Second, it is notable that appellant did not submit any evidence from the program’s director or staff about the extent of her progress and commitment to sobriety. Instead, there was only appellant’s rather conclusory claims that she learned a lot and believed knowing the consequences she would lead a drug-free life. Those consequences included incarceration.
This leads us to our third point. The evidence supported more than a reasonable inference that appellant finally participated in drug treatment because of the terms of her felony probation, rather than a desire to be drug-free or to reunify. Remarkably, appellant by her own admission did not have the urge to stop during the reunification period. In addition, except for the parenting and abuse/neglect classes available at Capistrano, appellant did nothing more than the bare minimum of her probation terms, i.e., complete a residential treatment program of at least 90 days and attend NA meetings once a week. Notably her probation did not include random drug testing outside of residential drug treatment. The record further reveals she had the opportunity to do a four-to-six-month perinatal drug treatment program in Kings County, which could have paid dividends for her unborn child. However, appellant declined and left that program. Although appellant later claimed she left to be closer to her family, there was also evidence from August 2007 that she questioned staying there because in her mind she only had to do a 90-day program. She further testified she was on step four of the 12-step program. However, she had yet to find a sponsor. It is also troubling that despite drug treatment, appellant still tried to minimize her history of drug abuse, in terms of its length and extent.
Given all of this conflicting evidence, the superior court properly could conclude appellant’s changed circumstances were insufficient to justify modifying the court’s prior order (In re Marilyn H., supra, 5 Cal.4th at 309), whether it be restoring custody or reopening services. For the court to so find did not constitute an abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 318.)
B. Best Interests Evidence
In the alternative, we conclude appellant failed to satisfy her additional burden of showing that a change in the court’s order would be in E.R.’s best interests. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) At best, the evidence showed there had been a good bond between appellant and her children, E.R. knew appellant as her mother and enjoyed her visits. To the extent appellant claims the evidence showed she and E.R. were very bonded and, the E.R.’s bond with her was equivalent to the bond she had with her paternal grandparents, appellant simply misstates the record. The evidence before the court did not compel a best interests finding.
To understand the element of best interests in the context of a section 388 request brought, as in this case, by a parent after reunification efforts have failed, we look to the supreme court’s decision in In re Stephanie M., supra, 7 Cal.4th at page 317:
“[A] primary consideration in determining the child's best interests is the goal of assuring stability and continuity. (Burchard v. Garay (1986) 42 Cal.3d 531, 538, and fn. 6 . . . .) ‘When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.’ (Ibid., fn. omitted; see also In re Marriage of McGinniss (1992) 7 Cal.App.4th 473, 478 . . . .)
“ [¶] . . ..[¶]
“After the termination of reunification services, the parents’ interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point ‘the focus shifts to the needs of the child for permanency and stability’ (In re Marilyn H., supra, 5 Cal.4th 295, 309), and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. (Id., at p. 302.) A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child.” (In re Stephanie M., supra, 7 Cal.4th at p. 317.)
Neither in the trial court nor on appeal has appellant addressed E.R.’s need for permanency and stability and how those interests would be advanced by either an order returning custody or reopening reunification efforts. She also ignores the affirmative showing that three-year-old E.R. thrived in her grandparents’ care and, in the process, achieved permanence, stability, and even a sense of the future in their home.
Instead, she urges this court to apply factors advanced by the appellate court in In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-532 (Kimberly F.), a decision she refers to as seminal, to evaluate E.R.’s best interests. This is by no means the first time an appellant parent has asked us to follow Kimberly F. We take this opportunity to explain why we do not adhere to the Kimberly F. approach.
The parent in Kimberly F. lost custody of two of her children because her home was dirty and unsanitary in the “extreme.” (Kimberly F., supra, 56 Cal.App.4th at pp. 521-522, 524.) By the time of an 18-month review, she made insufficient progress so the court terminated services. Thereafter, she managed to show she could keep her home in a sanitary condition and it was clean and safe. Close emotional ties between her and her pre-adolescent children also remained intact. However, the court denied a section 388 petition she brought and terminated her parental rights. (Id. at pp. 522, 526.)
On appeal, the Fourth District, Division Three reversed, concluding the juvenile court abused its discretion by denying the section 388 petition. In the process, it first rejected the use of “‘a simple best interest test,’” that is to compare the household and upbringing offered by the natural parent or parents with that of the caretakers, in analyzing a section 388 petition. (Kimberly F., supra, 56 Cal.App.4th 526-530.) It then determined a list of factors, not meant to be exhaustive, should be considered: the seriousness of the problem leading to dependency and the reason that problem was not overcome by the final review; the strength of relative bonds between the dependent children to both parent and caretakers and the length of time a child has been in the dependency system in relationship to the parental bond; and, the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been. (Id. at pp. 530-532.)
It is understandable that appellant could interpret the Kimberly F. factors as those applicable to determining a child’s best interest on a section 388 request given the format and some of the language in the Kimberly F. opinion. However, even the Kimberly F. court described the factors it identified as a “basis on which to evaluate a section 388 motion,” that is both elements: changed circumstances and best interests. (Kimberly F., supra, 56 Cal.App.4th at p. 532.) Also, subsequent appellate opinions citing Kimberly F. have so interpreted its factors. (See In re B.D. et al. (2008) 159 Cal.App.4th 1218, 1229; In re Jacob P. (2007) 157 Cal.App.4th 819, 826; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 447; In re Amber M. (2002) 103 Cal.App.4th 681, 685.)
We agree with Kimberly F. that the nature of a change, the ease by which a change could be brought about, and the reason a change was not made earlier bear on the element of changed circumstances. (Kimberly F., supra, 56 Cal.App.4th at p. 531.) We also have no qualms with Kimberly F. to the extent it rejects a “simple best interests” analysis and references the strength and comparable length of a child’s existing bonds as factors to be considered in assessing whether a return of custody or a resumption of reunification services would be in a child’s best interests. (See Stephanie M., supra, 7 Cal.4th at p. 325.)
However, Kimberly F. failed to take into account the supreme court’s analysisin Stephanie M. of best interests once reunification efforts have failed. From that point forward, the focus shifts from family reunification to the child’s needs for permanency and stability and a court must recognize this shift of focus in determining the best interests of the child. (Stephanie M., supra, 7 Cal.4th at p. 317.) At most, the Kimberly F. court reviewed the facts in Stephanie M. and compared them with the underlying facts in their case. (In re Kimberly F., supra, 56 Cal.App.4th at pp. 533-534.) We choose instead to follow the direction of our state’s supreme court. Consequently, when a parent petitions, after reunification services have failed, for either an order returning custody or reopening reunification efforts, that parent must show how such a change will advance the child’s need for permanency and stability in order for a court to find modification would be in the child’s best interests.
II. Parent/Child Relationship
Appellant also contends the court erred when it declined to find termination would be detrimental to E.R.’s best interests. She claims she was entitled to such a finding because she maintained regular visitation with E.R. and she would benefit from continuing the relationship (§ 366.26, subd. (c)(1)(B)(i), formerly § 366.26, subd. (c)(1)(A)).
Once reunification services are ordered terminated, if, as in this case, the child is likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides compelling reason for finding termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
Although section 366.26, subdivision (c)(1) acknowledges that termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1347.) Instead, it is the parent’s burden to establish termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Thus, when a juvenile court rejects a detriment claim and terminates parental rights, the issue on appeal is whether the juvenile court abused its discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) On review of the record, we find no abuse of discretion.
No doubt appellant maintained regular visitation with E.R. throughout her dependency. However, whether they shared a parent/child relationship by the time of the January 2008 hearing was in dispute. Nevertheless, even had the court resolved that question in favor of appellant, she still failed to establish that their relationship was so strong that E.R. would suffer detriment from its termination. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) The loss of a child’s frequent and loving contact with a parent is insufficient to show detriment. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.)
The statutory exception in section 366.26, subd. (c)(1)(B)(i):
“requires that the parent-child relationship promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) A juvenile court must therefore: ‘balance[] 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. If severing the natural parent/child 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.’ (Id. at p. 575.)” (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.)
Here, appellant introduced no such evidence to compel the court to make such a finding of detriment. Indeed, the evidence was that E.R. separated easily from appellant after visits, was not distressed, did not cry for appellant nor ask for her or about her between visits. Accordingly, the court did not abuse its discretion by rejecting appellant’s argument in this regard.
DISPOSITION
The order terminating parental rights is affirmed.