Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County No. 514372C, Harry M. Elias, Judge.
O'ROURKE, J.
Alicia R. appeals an order denying her Welfare and Institutions Code section 388 petition and an order terminating her parental rights to her daughter (the minor). She contends she proved her circumstances had changed, reunification was in the minor's best interests and the beneficial parent-child relationship exception to termination of parental rights and adoption applied to her case. We affirm the orders.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On January 4, 2007, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of the two-year-old minor under section 300, subdivision (b), alleging she was at substantial risk because of Alicia's drug use. Police had responded to a burglary call and found Alicia and the minor in a ransacked apartment and Alicia under the influence of methamphetamine. They arrested Alicia and took the minor into protective custody. At the time, Alicia was on probation for child endangerment. Her oldest two children live with their paternal grandparents. Her parental rights to two other sons were terminated because of her drug involvement and noncompliance with Agency requirements.
The minor's maternal cousins, who lived in Eureka, California requested placement and wanted to adopt the minor. Alicia did not want the minor to go to Eureka. Other relatives were considered, but for various reasons did not qualify for placement.
On March 8 the court found the allegations of the petition true and declared the minor a dependent child. It denied services to Alicia under section 361, subdivisions (b)(10) and (b)(13), set a section 366.26 hearing and ordered the minor placed in relative care. The following week, the minor moved to Eureka to live with the cousins.
Alicia was not allowed visits when she was first incarcerated. She and the minor had telephone contact, which was interrupted when Alicia was rude to the cousins. The cousins reported the minor had nightmares after the calls and often did not want to come to the telephone. Alicia and the minor had one visit at the jail, which was conducted over the telephone. The minor repeatedly handed the telephone to the social worker and when the minor was asked to speak with Alicia, the minor said "No," and pointed to the door. The cousins said after the visit the minor had nightmares.
On August 8 Alicia petitioned under section 388, requesting the scheduled section 366.26 hearing be vacated and the minor placed with her at the KIVA residential drug treatment facility, where she had gone after her release from jail.
The social worker reported she had observed two visits. The minor told her she was afraid of Alicia, but showed Alicia affection when asked. At the end of each visit, she separated easily from Alicia.
At the section 388 and section 366.26 hearings, the social worker recommended that the minor not be placed with Alicia at KIVA, but that she be adopted. She said the minor was afraid of Alicia, and Alicia had a 15-year drug use history, had been at KIVA for only about 50 days, had not reunified with her other children and had used drugs until the minor was removed.
The maternal grandfather testified Alicia and the minor had lived with him for two and one-half years and they had a very strong bond. The maternal uncle agreed. The grandfather denied knowing Alicia was using drugs when she lived with him.
Alicia testified about the special relationship she had with the minor. She said she was learning a great deal at KIVA and all her drug tests had been negative. She acknowledged her stay at KIVA was a condition of her probation. She said she was on the first step of a 12-step program, was in counseling and had a sponsor. She said she loved the minor and could be a good parent. Alicia's counselor testified Alicia's attitude had improved while she was at KIVA.
The cousin testified that conflict with Alicia arose after the minor was placed with her. She said the minor had nightmares and acted out after contact with Alicia. The cousin was committed to adopting the minor.
The court denied Alicia's petition, finding she had shown changing, but not changed, circumstances and had not shown that placing the minor in her care was in the minor's best interests. After further argument, the court found the minor was likely to be adopted, adoption was in her best interests and none of the statutory exceptions to adoption were present. It terminated parental rights and referred the minor for adoption.
DISCUSSION
I
Alicia contends the court abused its discretion by denying her section 388 petition.
Section 388 provides in part:
"(a) Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. . . . [¶] . . . [¶]
"(c) If it appears that the best interests of the child may be promoted by the proposed change of order . . . the court shall order that a hearing be held . . . ."
In order to gain the relief sought in a section 388 petition, the petitioner must show both a change of circumstances or new evidence and that the change sought is in the child's best interests. (§ 388; Cal. Rules of Court, rule 5.570(e); In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) A petition is liberally construed in favor of its sufficiency. (In re Angel B. (2002) 97 Cal.App.4th 454, 461.) The petitioner bears the burden of proof, however, to make both showings. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) "The [section 388] petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion." (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
A court will not grant a section 388 petition on the basis of circumstances that have not changed, but are only in the process of changing. Granting a petition that alleges circumstances only in the process of changing in the hope that the child and the parent might be able to reunify some time in the future, causing a delay in providing a permanent home to the child, may not support the child's best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
The court did not err in finding Alicia did not show a true change of circumstances. She had a 15-year drug history. Although she had earlier been offered drug treatment, she had not participated and lost custody of two older children. At the time of the hearing, she had been at KIVA for only about two months and was on the first step of a 12-step program. She showed that for the first time she was attempting to treat her drug addiction, but this evidence showed changing, not changed, circumstances.
In In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-532, the appellate court listed three factors a court might consider when determining if a child's best interests would be served by granting a section 388 petition: (1) the seriousness of the problem that led to the dependency and the reasons for any continuation of the problem; (2) the strength of the bond between the child and the parent and the child and the present caretaker; and (3) the degree to which the problem may be removed and the degree to which it has been removed.
The problem that led to the minor's removal was Alicia's serious substance abuse, beginning 15 years earlier and continuing to the day when the minor was removed and Alicia was arrested for being under the influence of a controlled substance. As to the second factor, the social worker reported the minor expressed fear of Alicia, did not readily interact with her, and, after visits, had nightmares and requested medicine to help her sleep. By contrast, the minor called the cousins "Mama" and "Papa," and was strongly bonded to them. Alicia attempted to maintain contact by telephone, but the minor did not always want to talk to her and at times the cousins did not allow the calls because of Alicia's rude behavior. Recently, Alicia had called less frequently. As to the third factor, Alicia was just beginning to treat her addiction. She had entered KIVA two months earlier as a condition of probation and was on the first step to recovery. The court did not abuse its discretion by denying her section 388 petition.
II
Alicia asserts the court erred in terminating her parental rights because she showed she had a beneficial parent-child relationship with the minor which should be continued.
Adoption is the permanent plan favored by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds by clear and convincing evidence that a child is adoptable, it becomes the parent's burden to show termination of parental rights would be detrimental to the child because of a specified statutory exception to termination of parental rights and adoption. (Id. at p. 574.) Under the exception found in section 366.26, subdivision (c)(1)(B)(i), the parent is required to show termination would be detrimental in that "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." In In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, the court noted "[c]ourts have required more than just 'frequent and loving contact' to establish the requisite benefit for [the] exception."
In reviewing whether sufficient evidence supports the trial court's finding, the appellate court reviews the evidence in the light most favorable to the court's order, 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.)
Even assuming, as Alicia argues, that she maintained as regular contact with the minor as she was permitted by telephone, she has not shown they had a beneficial parent-child relationship such that termination of her parental rights would be detrimental to the minor. The minor had little reaction to seeing Alicia at the jail, and Alicia commented she did not appear to know her. The minor expressed fear of Alicia and had nightmares after the telephone calls and visits. She was bonded to the cousins and was doing very well in their care. She needed the permanent home that adoption would provide. Substantial evidence supports the court's finding the beneficial parent-child relationship exception did not apply.
DISPOSITION
The orders are affirmed.
WE CONCUR: McDONALD, Acting P. J. IRION, J.