Opinion
NOT TO BE PUBLISHED
Super. Ct. No. J04191
ROBIE, J.
Appellant Sara M., mother of the minors, appeals from the juvenile court’s orders denying her request for modification and terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 388, 395.) Appellant contends the juvenile court erred by denying her a hearing on the modification petition, by failing to find the beneficial relationship exception to termination of parental rights, and in finding the minors adoptable. We shall affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
BACKGROUND
On February 7, 2006, San Joaquin County Human Services Agency (the agency) filed a section 300 petition on behalf of four-year-old A. and six-month-old J. The petition alleged appellant had failed to protect the minors in that: (1) on February 3, 2006, police were dispatched to the residence because appellant had been evicted three weeks earlier and electricity had been cut off, but appellant refused to leave the premises; (2) appellant has no suitable housing; (3) on February 1, 2006, police responded to a domestic disturbance due to appellant’s boyfriend pointing a gun at the maternal grandmother, after the grandmother had pulled a knife on him, and when appellant attempted to take the knife away while still holding J., J. was almost stabbed; (4) appellant was uncooperative with police and refused to provide information to issue a restraining order; (5) A. witnessed the domestic violence and is frightened by it; (6) A. has witnessed numerous adults come into the home with guns, a situation which places the minors at risk; (7) the maternal grandmother resides in the home and was placed under arrest for outstanding warrants; (8) A. was observed to be eating dried soup noodles and reports there is often no food in the home; (9) appellant and J. tested positive for amphetamines and cannabis at J.’s birth; and (10) the whereabouts of the fathers of the minors are unknown.
Appellant did not appear at the detention hearing. The detention report indicated that there were previous neglect referrals on the family involving unsafe housing and appellant’s use of drugs. Appellant was unwilling to discuss a safety plan with police or the social workers. The juvenile court ordered the minors detained.
Appellant appeared prior to the jurisdictional hearing and counsel was appointed. Appellant was present at the March 7, 2006, jurisdictional hearing but the hearing was continued to March 21, 2006, at appellant’s counsel’s request.
Appellant did not appear at the March 21, 2006, jurisdictional hearing and her counsel did not know her whereabouts. The juvenile court sustained the allegations of the petition and set a disposition date for April 18, 2006.
The disposition report indicated that appellant continued to live a transient lifestyle and had a pattern of inhabiting vacant apartments. She was not consistent with and was late to visits with the minors and was observed trying to feed six-month-old J. french fries during a visit. Appellant stated she wanted to enter the El Dorado House residential substance abuse treatment facility, but did not qualify because she admitted using drugs that morning. Instead, she was referred to the Recovery House for detoxification but she showed no interest in that program. Appellant was also referred, on February 9, 2006, to AA/NA groups, the Child Abuse Prevention Council for parenting education, Central Intake for drug treatment, and the Women’s Center for Domestic Violence. Appellant was provided monthly bus passes for commuting to her programs. The report also noted that appellant had avoided intervention when J. was born.
The juvenile court declared the minors dependent children of the court, ordered them removed from appellant’s custody, and ordered reunification services. The juvenile court also ordered appellant, who was present at the hearing, to participate in the drug court parental recovery options program II.
On January 3, 2007, the juvenile court terminated reunification services. Appellant did not appear at the hearing. Appellant had been admitted to the El Dorado House treatment facility on July 12, 2006. She attended the program but her participation had been minimal. She had difficulty being honest in the program and was placed on contract for defiance on at least two occasions. She walked out of the El Dorado House on November 30, 2006, causing her to be discharged from the program. Appellant was instructed on two occasions to report back to drug court for possible reenrollment into another residential drug treatment program, but she failed to comply.
Appellant had been more consistent with visitation while in the El Dorado residential treatment facility and visits had been increased from one to three hours a week, but appellant reverted back to her previous visitation inconsistency after leaving the facility. She had not successfully addressed her parenting risk factors and had not maintained consistent contact with the social worker regarding the case plan.
A six-month review hearing was held on April 18, 2007. The adoptions social worker’s report noted that appellant was scheduled to visit the minors once a month for one hour but that appellant was inconsistent with her visits. Appellant still did not have a permanent residence and was pregnant with a due date in June 2007. Appellant was not involved in any drug treatment program. An adoption assessment had been completed and concluded the minors were adoptable. The minors had been placed in a prospective adoptive home with an approved family.
Appellant requested she be given more frequent and longer visits with the minors. The agency opposed the request. The juvenile court gave the social worker discretion to increase visitation.
The social worker did not increase visitation and appellant remained scheduled to visit the minors once a month for one hour. Appellant, however, continued to miss visits and, by the time of the June 2007 section 366.26 hearing, she had visited only two or three times that year.
Appellant filed a section 388 petition on June 20, 2007 -- the day of the scheduled section 366.26 hearing. The petition alleged she “visits the minors,” and was “motivated to aid her own sobriety.” She alleged she had enrolled in the Chemical Dependency Counseling Center (CDCC) in April 2007, but had been placed on bed rest in May, so she intended to return to CDCC following her bed rest. She also “plan[ned] to attend parenting classes.” She had rented a room big enough for a crib and a bed and was “in the process” of getting approved for a two-bedroom house. Appellant requested reinstatement of reunification services, claiming services would “keep the bond” between her and the minors. The juvenile court denied the petition without a hearing, finding it did not show why it would be in the best interest of the minors to reinstate services at such a late date. The section 366.26 hearing was continued two days, to June 22, 2007.
Appellant filed a second section 388 petition on or about June 22, 2007. The petition restated the allegations in the previous petition and added that the minors had been moved in placement at least five times and had only been with the current family for a short time. The juvenile court denied the petition, again stating it did not show that a change would be in the best interest of the minors, and proceeded with the section 366.26 hearing.
The adoptions social worker filed an updated status report and testified at the hearing. The minors had been assessed as adoptable and been in their current prospective adoptive home since March 28, 2007. The minors had been moved five or six times before being placed in their current placement, as a result of concerns about the care being provided in the previous foster homes.
Appellant and her mother also testified at the section 366.26 hearing. Appellant testified that the minors were happy to see her when she visited. Appellant said she visited “frequently” until her recent transportation problems. Appellant believed the minors would be better off in her care and A. had said she wanted to come home with appellant. Appellant’s mother also testified that the minors were excited to see appellant and that A. would get upset when appellant left. Appellant’s mother, who also claimed to have transportation problems, had not seen the minors for four or five months. Appellant’s counsel urged the court to place the minors with appellant or her mother.
The juvenile court found the minors were adoptable, that none of the exceptions to adoption applied, and terminated parental rights.
DISCUSSION
I
Modification Petition
Appellant contends the juvenile court erred by denying a hearing on her petitions for modification. As her petitions were filed only days apart and contained nearly identical allegations, we consider them jointly in our analysis.
A parent may bring a petition for modification of any order of the juvenile court pursuant to section 388 based on new evidence or a showing of changed circumstances. “The parent requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is a preponderance of the evidence. [Citation.]” (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Determination of a petition to modify is committed to the sound discretion of the juvenile court and, absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
The best interests of the child are of paramount consideration when the petition is brought after termination of reunification services. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the best interests of the child, the juvenile court looks not to the parent’s interests in reunification but to the needs of the child for permanence and stability. (Ibid.; In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
To establish the right to an evidentiary hearing, the petition must include facts that make a prima facie showing that there is a change in circumstances and “the best interests of the child may be promoted by the proposed change in order.” (In re Daijah T. (2000) 83 Cal.App.4th 666, 672-673; see In re Zachary G. (1999) 77 Cal.App.4th 799, 806; Cal. Rules of Court, rule 5.570(b).) More than general conclusory allegations are required to make this showing even when the petition is liberally construed. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) “The prima facie requirement is not met unless the facts alleged, if supported by evidence . . . would sustain a favorable decision on the petition.” (In re Zachary G., supra, 77 Cal.App.4th at p. 806.)
Applying these principles to the present matter, we conclude that the juvenile court acted within its discretion in denying appellant’s petitions for modification without a hearing. Neither of appellant’s petitions made the required prima facie showing.
The facts alleged by appellant to establish changed circumstances showed she had not progressed much, if at all, since she walked out of the El Dorado House or from the time services were terminated. She still had not demonstrated she could maintain a long-term, drug-free, stable life. She did not allege that she had recovered from her substance abuse; in fact, the allegations in her petition made it apparent she was only now beginning to address her substance abuse. The petition alleged only that she was now “motivated” to achieve sobriety and intended to participate in CDCC after her pregnancy bed rest. Appellant had not completed domestic violence counseling or parenting classes, but merely planned to attend parenting classes. Moreover, her petition for modification did not aver when she might be ready and able to resume custody of the minors. At best, her circumstances were beginning to change, not changed. (See In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
“A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child’s best interests.” (In re Casey D., supra, 70 Cal.App.4th at p. 47.) Childhood cannot wait while a parent rehabilitates herself. (In re Debra M. (1987) 189 Cal.App.3d 1032, 1038.) Rather, the minor’s rights to permanence and stability are paramount. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) Furthermore, when the petition is brought at the section 366.26 hearing, the child’s interest in stability may outweigh any interest in reunification. (In re Edward H., supra, 43 Cal.App.4th at p. 594; In re Stephanie M., supra, 7 Cal.4th at p. 317.)
Appellant simply did not allege sufficiently changed circumstances to justify a modification of the juvenile court’s standing orders. The juvenile court reasonably could conclude appellant failed to make a prima facie case that some additional period of services would promote the minors’ best interests.
II
Termination Of Parental Rights
Appellant claims the evidence does not support the juvenile court’s finding that no statutory exception to adoption applied to the dependency proceedings. Focusing on her bond with A., appellant argues severance of her relationship with either minor would be detrimental to the minors. We conclude the juvenile court did not err in terminating appellant’s parental rights, as appellant failed to maintain the regular contact necessary to invoke the benefit exception.
At a section 366.26 hearing, “‘a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]’ [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child. [Citations.] A guardianship ‘is “not irrevocable and thus falls short of the secure and permanent placement intended by the Legislature.” [Citation.]’ [Citation.]” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)
There are only limited circumstances that permit the court to find a “compelling reason for determining that termination [of parental rights] would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) The party claiming the exception has the burden of establishing the existence of any circumstances that constitute an exception to termination of parental rights. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 5.725(e)(3); Evid. Code, § 500.)
One circumstance in which termination of parental rights may be detrimental to a minor is when “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) However, “[b]ecause a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) The benefit to the minor must promote “the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
On appeal, the juvenile court’s ruling declining to find an exception to termination of parental rights must be affirmed if it is supported by substantial evidence. (In re Autumn H., supra, 27 Cal.App.4th at p. 576; In re Zachary G., supra, 77 Cal.App.4th at p. 809; In re Derek W. (1999) 73 Cal.App.4th 823, 827; cf. In re Jasmine D., supra, 78 Cal.App.4th at pp. 1342, 1351 [applying abuse of discretion standard].) “On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.” (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
Here, appellant failed to meet her burden to establish this exception. The record reflects the minors had been in out-of-home placement for well over a year. During that time, appellant did not maintain a pattern of regular visitation or contact. Appellant visited sporadically for the first six months, although she was supposed to visit every week. She was often late and missed visits. She became more consistent with the visitation during the four months she was in the El Dorado House, and began visiting three times a week, but was inconsistent again after she walked out of that program. Thereafter, she continued to miss visits, even though the visits were reduced to one hour per month. Indeed, appellant had only visited the minors for two to three hours, in total, over the five months prior to bringing her petition for modification. Moreover, appellant did not present any evidence that she maintained regular contact with the minors through other means, such as by telephone or letters.
Because appellant failed to establish she had maintained regular visitation and contact with the minors, the juvenile court did not err in concluding the section 366.26, subdivision (c)(1)(B)(i) exception to adoption did not apply to the circumstances of this case. (Cf. In re Amanda D. (1997) 55 Cal.App.4th 813, 821.)
III
Minors’ Adoptability
Finally, appellant contends substantial evidence does not support the finding that the minors are adoptable. We disagree.
When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, the reviewing court must determine if there is any substantial evidence -- that is, evidence which is reasonable, credible and of solid value -- to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, all conflicts are to be resolved in favor of the prevailing party and issues of fact and credibility are questions for the trier of fact. (In re Jason L.,at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.)
The factual issue of adoptability “focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor.” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) A child’s young age, good physical and emotional health, intellectual growth, and ability to develop interpersonal relationships are all attributes indicating adoptability. (Id. at p. 1651.)
Here, the minors are young, healthy, and have attractive qualities. There have been no developmental concerns with A. Although there had been some earlier concern that J. may have been favoring his left arm and leg, he no longer appeared to be favoring either side and was continuing to be monitored. A. had improved in school, was reportedly eager to learn, and working at grade level. Previous caretakers had noted that A. had difficulty expressing her emotional needs and would often have outbursts, demonstrate “‘self-injurious’ behavior,” and display aggressive behavior toward her caretakers, but her current foster parents had not observed any behavior difficulties. The adoptions social worker noted that, despite the fact that the minors had been moved several times, both minors demonstrate the ability to form attachments. Based on these facts and an adoption assessment, the adoptions social worker opined that the minors are adoptable. (Cf. In re Brian P. (2002) 99 Cal.App.4th 616, 624; In re Kristin W. (1990) 222 Cal.App.3d 234, 253.)
Moreover, the minors have since been placed in a certified prospective adoptive home. It is not necessary that the minor already be in a potential adoptive home or even that a prospective adoptive parent has been identified for a minor to be found adoptable. (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) However, the existence of a prospective adoptive parent who is willing to adopt the minor “generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.” (Id. at p. 1650, italics omitted; see also In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) Here, the prospective adoptive parents are aware that the minors have been moved several times and would likely exhibit some behavior difficulties, yet they remain committed to adopting both minors. The minors, however, have been adjusting well, becoming more relaxed in the prospective adoptive home.
In sum, substantial evidence supports the juvenile court’s finding that the minors are likely to be adopted.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: SIMS, Acting P.J., NICHOLSON, J.