Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County No. 08CEJ300041, Brian M. Arax, Judge.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Levy, A.P.J., Cornell, J. and Dawson, J.
K.B. (mother) appeals from a 2009 order terminating parental rights (Welf. & Inst. Code, § 366.26) to her seven-year-old daughter, M. Mother contends the trial court abused its discretion by denying her request (§ 388) to regain custody and rejecting her argument that termination would be detrimental to M. based on their parent/child relationship (§ 366.26, subd. (c)(1)(B)(i)). On review, we disagree and affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
Mother had a lengthy history of alcohol abuse and domestic violence with M.’s father, which negatively affected mother’s ability to provide M. with regular care, supervision, and protection. Despite voluntary family maintenance services between March 2004 and March 2005, mother continued to abuse alcohol and engage in domestic violence. In late December 2007, mother and father were involved in domestic violence incidents in M.’s presence and mother was found to be under the influence of alcohol. Father had been recently paroled after serving a term for stabbing mother in 2005. Mother meanwhile was not in compliance with her probationary terms for her fourth driving under the influence (DUI) conviction. This resulted in her arrest.
A child protective services investigation in early 2008 revealed M., who was then five years old, witnessed her parents physically fight on numerous occasions. M. also had been injured during some of the incidents. Sometimes, mother would hold M. during fights to try and stop the father from hitting. According to M., mother drank something that made her “sick and crazy” and that mother still drank. The child was afraid of both parents and did not feel either of her parents loved her. The child experienced many bad dreams. In her dreams, the father cut her heart out with a knife and she died.
Under these tragic circumstances, respondent Fresno County Department of Children and Family Services (the department) initiated the underlying dependency proceedings and detained M. in early February 2008. M. was placed in the home of foster parents with whom she has continued to reside throughout these proceedings.
The Fresno County Superior Court subsequently exercised its dependency jurisdiction over M. under section 300, subdivision (b) (neglect). Meanwhile, the court ordered the department to offer an array of reunification services to the parents as well as an expedited mental health assessment and any recommended treatment for M.
Reunification Efforts
In June 2008, the court adjudged M. a dependent child and removed her from parental custody subject to reunification services for both parents. At the time, the court found mother made significant progress. She was participating in outpatient substance abuse treatment and living at Marjaree Mason Center for battered women (shelter) where she participated in a domestic violence program and a victim’s group. However, because mother had been drinking alcohol to intoxication for 19 years and previously participated in other alcohol abuse treatment programs without success, placement with mother was not possible.
The court, however, did give the department discretion to offer mother unsupervised visits. At the time, she had been consistently visiting M. on a weekly basis and the visits were going well. M. stated she wanted to go back home with mother. Meanwhile, M. was doing well in her placement.
Although mother successfully completed her drug treatment program in late July, she relapsed by early August. Mother also cut her wrists and was briefly hospitalized under section 5150. As mother was taken from the shelter into custody, her room reportedly contained several large vodka bottles, one of which was three-quarters empty. By mid-August, the shelter placed mother on contract for breaking several of its rules. She also continued to have near daily contact with the father and was untruthful with the social worker.
Meanwhile, mother continued to visit M. who appeared to enjoy the visits. However, mother allowed M. to act out during visits and did not discipline the child. Although unsupervised visits were to begin in mid-August, they remained supervised apparently due to mother’s recent problems. Mother also was displaying inappropriate behavior with M. at visits. M. reported mother told her things, which apparently troubled the child, when alone with her in a restroom.
Then, in early October 2008, mother was arrested yet again for DUI. Although she should have remained in jail for also violating her probation, she was released instead. Around the same time, the department’s social workers and mother’s probation officer grew concerned that mother posed a flight risk. The father reported she was “trying to go on the run with M[.]” Mother also no longer maintained contact with the social worker.
At an October 10, 2008 hearing set for a status review of M.’s dependency, the court suspended visitation between mother and M. The following month the court also suspended the father’s visits. According to a later report by M.’s therapist, the child appeared to do better psychologically while not having contact with her parents.
The appellate record does not contain a reporter’s transcript of this hearing, although there was a court reporter present at the hearing. In addition, mother did not challenge this ruling by way of appeal.
The status review hearing was repeatedly continued until March 2009. In the meantime, mother was incarcerated in state prison. She pled guilty to DUI and because it was her fourth DUI conviction in less than ten years, it was treated as a felony. She received a two-year term.
Termination of Reunification Services and Setting of Section 366.26 Hearing
At the March 2009 hearing, the court found each parent made minimal progress toward alleviating the problems that led to M.’s out of home placement and ordered reunification services terminated. The court also continued its order suspending visitation between M. and her parents. Meanwhile, the court permitted mother to submit letters for M. through the department. In addition, the court granted the department discretion to allow two supervised telephone calls a month between mother and M., if such contact was therapeutically advised and subject to 10 court days’ notice to the parties.
The court concluded the March 2009 hearing by setting a section 366.26 hearing to select and implement a permanent plan for M. Having done so, the court gave the parents notice of their writ remedy to challenge the court’s orders. Neither parent pursued writ relief.
Mother’s Section 388 Petitions
Although the court calendared the section 366.26 hearing for a June date, it did not proceed with the hearing until October 2009. Mother retained private counsel in place of her court-appointed attorney on the figurative eve of the June hearing date, which resulted in a continuance. In July 2009, mother’s new attorney filed the first of two section 388 petitions. In the July section 388 petition, counsel requested supervised visitation and a bonding study between mother and M. pending the section 366.26 hearing.
This first petition led the court to request input from M.’s therapist regarding a resumption of visits. The therapist recommended against resuming visits due to the confusion it could cause M. who suffered from anxiety. Also, the therapist could not identify a clear benefit to M. by reinitiating visitation.
In August 2009, mother’s counsel filed a second section 388 petition to reopen reunification services for six months; it also repeated the previous request for visitation. The court set the mother’s petitions for hearing in combination with the section 366.26 hearing.
According to the second petition, mother had enrolled in and successfully completed a five-month substance abuse program while in prison. In July 2009, mother entered a drug treatment furlough program located in Fresno County to serve out the balance of her prison term. The furlough program included group therapy to address co-dependency, life skills, domestic violence, and relapse prevention. Mother could have visitors at the program one day a week.
The department opposed any modification of the court’s orders. The department relied on mother’s lengthy history of alcohol abuse and domestic violence. In addition, mother had received 12 months of reunification services and, prior to that, one year of voluntary family maintenance services. Although mother completed several of her services, she did not appear to benefit from the drug treatment or domestic violence classes given her DUI arrest in October 2008 and a domestic violence incident with the father in August 2008.
In addition, M. had not lived with mother for 19 months. The child needed a loving, stable, and permanent home. While mother believed she and M. shared a close and loving relationship, the same could not be said for the child. M. identified her foster parents as her parents. M. was an accepted member of their family. The child also identified the foster parents’ extended family members as her (M.’s) aunts, uncles, and grandparents. M. stated she enjoyed living with her foster parents and wished to remain in their home. She was secure in her placement and spoke of remaining there on a long-term basis. Meanwhile, M. stated she was afraid of both of her parents, though particularly her father. Further, mother failed to see how her behavior had negatively impacted M.
In August 2009, a department social worker met with M. and asked the child if she wanted to live with mother. M. responded “‘no because they are always yelling and fighting.’” During a September face-to-face meeting with the social worker, M. asked “‘When is the judge going to make a decision?’” Told it would be in approximately ten days, M. replied “‘Are you sure because that is what you said that last time and it was a long time ago.’” Asked what decision she wanted the judge to make, M. responded, with a smile and cheer in her voice, “‘[t]hat I can stay with [the foster mother].’” M. appeared to want to be a permanent member of her foster family.
Meanwhile, M. was considered adoptable in that she was just turning seven years of age, physically and emotionally healthy, developmentally on target, and able to form positive attachments. Also, her foster parents were willing and able to provide her with a permanent plan of adoption. The department recommended the court find M. likely to be adopted and order termination of parental rights.
Combined Sections 388 and 366.26 Hearing
At the October 2009 hearing, mother testified she was in a treatment program, outside of prison, although she was still considered to be in custody. She was not free to go as she pleased. She was scheduled to parole in early November. She was incarcerated, having been convicted of her fourth DUI in 10 years’ time. She had a fifth DUI conviction outside the 10-year window.
The last time mother saw M. was one year earlier in October 2008. Before that, mother saw her daughter every week. She was M.’s custodial parent from the time the child was born until she entered foster care in February 2008. Mother described herself as a single parent for most of M.’s life. Much of that time M.’s father was incarcerated. He was out of custody from May 2007 until M. was detained in February 2008. M. and mother did everything together before M. was detained.
Mother’s drinking became a problem approximately 19 years earlier. She was a “binge drinker on and off.” She characterized herself as a “functional alcoholic.” Slowly however, her alcoholism led to “things [being] taken away from [her].”
She had been in four different alcohol treatment programs in the previous 15 years. She “faked” her way through each program. She also resumed drinking after each of the four programs. None of them was like the current programs in terms of intensity. Mother began the current drug treatment furlough in July 2009. It was available to non-violent prisoners with drug/alcohol problems for the last 120 days of a prison commitment. In it, mother worked on domestic violence issues, alcohol/relapse issues, and parenting. Once she paroled, she would “roll over to another program, ” FOTEP. If she did not complete the mandated hours in these programs, she would be returned to prison. In addition to providing classes, the FOTEP program encouraged the parolees to work, permitted the parolees to have their children with them, and upon completion would provide housing assistance. If successful, mother could complete parole in less than two years.
Mother testified she wrote M. every week after their last visit in October 2008. However, mother claimed M. never received the letters and she (mother) never received a reply to her letters from M. Mother did receive four letters from M., which the child’s great-aunt forwarded after visiting with the child. While in prison, mother could not receive phone calls and was never allowed to call M.
In mother’s estimation, the department took away all visitation rights for her as well as the father because he had “acted up.” It had nothing to do with anything she had done.
It was stipulated that delivered service logs demonstrated that when mother previously visited with M., the visits were successful in that mother acted in an appropriate fashion such that the visits were not stopped and were allowed to continue. Further, there was no indication in the logs that M. expressed any fear towards mother during visits.
Mother also testified M. did not appear fearful of her (mother) during their visits. M. would run into mother’s arms each visit, sit on her lap and hug. Mother always brought an activity to the visits. Visits were once a week for one hour. According to mother, those who supervised the visits always told her the visits were appropriate and she and M. were fine. According to mother, M. had been advanced for her age academically while in mother’s care. There was never any problem in preschool and kindergarten.
Mother further stated that the father was no longer involved in her life. It was her understanding he had left the state. She had no plans to contact him once she was released. If he discovered where she lived, she planned to obtain a restraining order. She acknowledged there had been a previous restraining order as a condition of the father’s parole, which both she and he violated. After the restraining order expired, she permitted him to come back to her home. In her sober state, she did not plan to repeat that pattern. She last had contact with the father in March 2009 while in county jail.
Previously in family law proceedings, mother lost custody of two other children due to her drinking. She admitted each time she lost custody she thought she would not allow that to happen again. Not including Alcoholics Anonymous, she had been in four different alcohol treatment programs. After she completed each of the four programs, she relapsed.
M.’s therapist, Julie Torok-Mangasarian (Torok), also testified. The clinician received her license in May 2009. Prior to that, she was an intern for three years. She did internships prior to receiving her master’s degree. The court deemed the witness qualified to testify as an expert.
Torok began counseling M. on a weekly basis in March 2008. A preliminary assessment revealed that M. presented with some anxiety symptoms, which were addressed in treatment. Those symptoms included depressed mood, enuresis, nightmares, a lot of whining, manipulation, and tantrums. After a few months of weekly treatment, Torok reduced their sessions to occur on a bi-weekly basis. M. was discharged from treatment in late September 2009. M. met her treatment goals by exhibiting an increased level of functioning, meeting anxiety and having decreased manipulative behaviors. Torok also requested authorization to see M. in the future.
According to Torok’s quarterly reports between the end of 2008 to late June 2009, M. said she would like to remain in the care of her foster family. She liked the placement.
Torok recommended there be no resumption of visits between M. and mother. Because there was no longer a plan for reunification, the clinician also believed telephone contact might cause M. some confusion. She recommended against visitation in July 2009 because M. had no contact with mother for such a long period of time and the child’s symptoms were apt to increase. M. was stable in regards to her symptoms and was doing well in her foster care placement. Her level of functioning had also increased. Previously when M. had visitation, the child tended to increase her temper tantrums as well as whining and aggressive behaviors, according to information the foster parent reported. Those behaviors had not occurred, as they previously had, once visitation with mother was suspended. A return to reunification efforts had the potential to cause M. more anxiety symptoms.
The expert thought some of M.’s anxiety symptoms may have impacted her ability earlier to learn. However, the last Torok heard, M. was catching up in school.
M.’s great-aunt also testified. She visited M. on a monthly basis starting in March 2008. She last spoke to the child in July 2009. According to the great-aunt, M. discussed her mother all the time during these visits. M. would ask if the witness had seen or talked to mother. The child also asked the witness to tell mother that she (M.) loved her. The child wrote notes and drew pictures that she wanted the witness to send to mother. According to the witness, M. did this on her own initiative. It was the witness’s impression that M. wanted to see her mother.
The court admitted into evidence three documents from the child’s current school district. According to two of the documents, M. was below grade level, specifically performing below the promotion standard in English language arts and mathematics, during the 2008-2009 school year. As a result, it was recommended and agreed that M. be retained for the next school year. The third document revealed, during the second semester of the 2008-2009 school year, M. had three absences and 24 tardies. The court did not give this evidence anything but the most minimal weight because there was no explanation provided either for why M. was struggling in school or why there was so many tardies.
The parties also agreed that voluntary services offered to mother in 2004 and 2005 included a three-month outpatient alcohol program which mother took advantage of to some extent. At the department’s request, the court also took judicial notice of the two-page minute order of the March 2009 hearing terminating reunification and continuing the order suspending visitation.
Ruling on Section 388 Petition
The court found there was some change in mother’s circumstances. She was in a program and had been sober. On the other hand, her sobriety was a product of her in-custody status. Also, she was still in treatment and counseling and could not show long-term sobriety or a period of stability. She had not lived on her own in a sober environment or managed another individual in her life, much less a child. Mother expressed a desire to remove the father from her life but, as the court added, she had previously expressed the same desire and had been unsuccessful. The court later remarked mother had not demonstrated sufficient changed circumstances.
The court also addressed at length its consideration of M.’s best interests. The court found M. had a stable home, her physical needs were being met, and she had achieved a level of emotional stability through one and a half years of therapy. It specifically rejected mother’s theories that M.’s academic problems were the result of her placement and that their visitation was suspended solely because of the father’s misconduct. The court also found M. wished to stay with her foster parents, evidencing a bond between M. and her foster parents. Furthermore, visitation would be disruptive to the child’s stability. To jeopardize M.’s current stability would be a significant risk and gamble that the court was unwilling to entertain.
The court denied mother’s section 388 requests in full. The record also contains a signed order denying the petitions in which a box was checked alongside a finding “The proposed change of order... does not promote the best interest of the child.”
The Court’s Section 366.26 Ruling
Moving on to the section 366.26 portion of the hearing, mother’s counsel urged that the court not terminate parental rights but instead maintain the parent/child relationship. According to counsel, mother’s lack of visitation and contact in the preceding year should not be held against her in terms of maintaining regular visitation and contact. Counsel also cited the great-aunt’s testimony as proof that there was a current bond between mother and child.
The court found M. was likely to be adopted and terminated parental rights.
DISCUSSION
I. Section 388 Petition
Any party to a dependency proceeding may petition the court to modify or set aside a prior order on grounds of changed of circumstance or new evidence. (§ 388, subd. (a).) The party must also show the proposed change would promote the child’s best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) The procedure under section 388 accommodates the possibility that circumstances may change so as to justify a change in a prior order. (In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.).) 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. (Stephanie M., supra, 7 Cal.4th at p. 318.)
Mother contends the trial court abused its discretion by denying her second modification request to reopen reunification services. She urges that her sobriety, coupled with the fact that she was in alcohol treatment and counseling, established a legitimate change of circumstances. She additionally claims a return to reunification efforts was in M.’s best interests because of the relationship they shared. Mother relies on factors set forth in In re Kimberly F. (1997) 56 Cal.App.4th 519 (Kimberly F.) and her interpretation of the evidence to claim reopening reunification was in M.’s best interests.
It is unclear from the record, as summarized above, whether the trial court found sufficient changed circumstances. However, it expressly found modification was not in the child’s best interests. Having reviewed the record as summarized above, we conclude the court did not abuse its discretion by denying mother’s section 388 request. (Stephanie M., supra, 7 Cal.4th at p. 318.)
No Changed Circumstances
The court properly could have found mother did not establish circumstances had sufficiently changed -- since the March 2009 order terminating reunification services -- to warrant a return to such services at this late stage. It was undisputed mother had been sober for approximately one year and was participating in a treatment program that also included domestic violence counseling. However, she was doing so while in custody and under the threat of further incarceration and unabbreviated parole. Also, there was mother’s 19-year history of alcoholism, the four prior treatment programs she “faked” her way through to completion, and her relapses after each of those programs. Further, there were mother’s serious and repeated failures to learn from domestic violence counseling. Added to these considerations, the changes brought on by mother’s incarceration were untested in the world outside of prison and the treatment furlough program in which she participated. Notably absent from mother’s showing was any evidence from her treatment specialists or counselors about the extent of her progress or prognosis for a stable future. Thus, mother’s showing did not justify a change in the court’s prior order. (Marilyn H., supra, 5 Cal.4th at p. 309.)
No Best Interests Showing
In any event, mother glosses over the fact that she did not establish it would be in M.’s best interests for reunification efforts to resume. Mother emphasizes her testimony that she had a loving parent/child relationship in the early years and claims the great-aunt’s testimony confirms the relationship was ongoing. In the process, however, mother turns a blind eye to the evidence that six-year-old M. did not share mother’s view of their relationship. It was M.’s wish to remain with her foster parents who had cared for her the preceding 19 months. M. identified her foster parents as her parents and felt accepted as a member of their family. The child was secure in her placement and spoke of remaining there on a long term basis. Mother also ignores the counselor’s opinion that even visitation at this point could be destabilizing for M.
This leads us to perhaps the greatest flaw in mother’s argument here and in her presentation below. Neither in the juvenile court nor in this court has mother addressed M.’s needs for permanency and stability and how those interests would be advanced by orders rolling back the case to a reunification phase.
Parent and child share a fundamental interest in reuniting up to the point at which reunification efforts cease. (In re R.H. (2009) 170 Cal.App.4th 678, 697.) By the point of a section 366.26 hearing to select and implement a child’s permanent plan, however, the interests of the parent and the child have diverged. (Cynthia D. v. Superior Court (1993)5 Cal.4th 242, 254.) Indeed, children have a fundamental independent interest in belonging to a family unit and they have compelling rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. (Marilyn H., supra, 5 Cal.4th at p. 306.) Adoption gives a child the best chance at a full emotional commitment from a responsible caretaker. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
Therefore, after reunification efforts have terminated, the court’s focus shifts from family reunification toward promoting the child’s needs for permanency and stability. (Marilyn H., supra, 5 Cal.4th atp. 309.) 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.” (Stephanie M., supra, 7 Cal.4th at p. 317.)
Here, mother made no real attempt to rebut the presumption that continued out-of-home placement was in the best interests of the child (Marilyn H., supra, 5 Cal.4th at p. 302). At most, she hypothesized in the trial court that M.’s foster care placement may not be stable or appropriate because of M.’s retention and numerous tardies at school. The court properly gave mother’s argument de minimus weight since there was no evidence to support her supposition.
Instead, mother urges this court to apply factors advanced by the appellate court in Kimberly F., supra, 56 Cal.App.4th at pages 530-532, to evaluate M.’s best interests. As discussed below, we do not adhere to the Kimberly F. approach in evaluating whether a court abused its discretion in this regard.
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.)
The appellate court 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 at pp. 526-530.) The appellate court then determined a list of factors, not meant to be exhaustive, that 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.)
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 disagreement 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. fails to take into account the California Supreme Court’s analysisin Stephanie M. of best interests once reunification efforts have failed (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. (Stephanie M., supra, 7 Cal.4th at p. 317.)
In this case, the trial court did apply the Kimberly F. factors to the facts in this case and found them wanting. Mother’s argument on appeal -- that the Kimberly F. factors warranted the relief she sought -- is little more than an invitation for this court to reweigh the evidence. However, it is the exclusive province of the trial court to evaluate credibility and determine what weight to give testimony. (In re Laura F. (1983) 33 Cal.3d 826, 833; In re Amy M. (1991) 232 Cal.App.3d 849, 859-860.) Furthermore, the trial court properly focused on whether the relief mother sought would advance M.’s interest in permanence and stability and found otherwise. We conclude therefore the trial court did not abuse its discretion in denying mother’s request. (Stephanie M., supra, 7 Cal.4th at p. 318.)
II. No Beneficial Parent/Child Relationship
Mother alternatively contends the court erred by rejecting her claim that M. would benefit from an on-going relationship with her such that termination would be detrimental to them (§ 366.26, subd. (c)(1)(B)(i)). We disagree.
Section 366.26, subdivision (c)(1)(B), acknowledges termination may be detrimental to a dependent child under specifically designated and compelling circumstances. (In re Celine R., supra, 31 Cal.4th 45, 53.) One of those circumstances is when a parent has maintained regular visitation and contact and the child would benefit from continuing the relationship to such a degree that the child would be greatly harmed by termination. (§ 366.26, subd. (c)(1)(B)(i); In re Autumn H. (1994) 27 Cal.App.4th 567, 575 [beneficial relationship exception].)
A finding that termination would not be detrimental, however, is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1347.) The statutory presumption is that termination and permanency through adoption is in the child’s best interests and therefore not detrimental. (§ 366.26, subd. (b); In re Lorenzo C. (1997)54 Cal.App.4th 1330, 1343-1344.) A party opposed to termination bears the burden of showing that termination would be detrimental under one of the statutory exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
Consequently, when a court rejects a detriment claim and terminates parental rights, the appellate issue is not whether substantial evidence exists to support the court’s rejection of the detriment claim. The issue for the reviewing court is instead whether the court abused its discretion in rejecting the detriment claim. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) For this to happen, the proof offered would have to be uncontradicted and unimpeached so that discretion could be exercised only in one way, compelling a finding in favor of the appellant as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571; In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
In this case, mother failed to establish both elements of the beneficial relationship exception. First, mother did not maintain regular visitation and contact with M. over the course of the child’s dependency. As of the section 366.26 hearing, mother and daughter had not visited in approximately one year. Although mother seeks to minimize the lack of visitation by essentially claiming the 2008 and 2009 decisions to suspend visitation were mistakes or should have only applied to the father’s visits, we do not. We note in this regard mother never challenged either the 2008 or 2009 suspension orders in this court. Thus, she has forfeited the right to make such claims in this appeal. (§ 366.26, subd. (e); In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563.)
In addition, mother argues that she and M. had a close and loving relationship which was worth preserving. However, in order for the beneficial relationship exception to apply, the parent/child relationship must promote the child’s well-being 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., supra, 27 Cal.App.4th at p. 575.) A juvenile court must balance the strength and quality of the parent/child relationship in a tenuous placement against the security and the sense of belonging that 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. (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342; citing In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Here, mother did not offer any evidence, let alone undisputed and unimpeached proof, that M. had such a substantial, positive relationship with her that termination would greatly harm the child. Thus, we conclude the court did not abuse its discretion by rejecting mother’s claim and terminating parental rights.
DISPOSITION
The order terminating parental rights is affirmed.