Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super. Ct. Nos. J205529 & J205530. A. Rex Victor, Judge.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Dawn Stafford, Deputy County Counsel, for Plaintiff and Respondent.
Karen J. Dodd, under appointment by the Court of Appeal, for Minors.
OPINION
McKINSTER, J.
Appellant N.A. (mother) is the natural mother of Destinee C. and Austin C., dependent children of the juvenile court. Mother appeals after the juvenile court terminated her parental rights. She contends that the juvenile court erred in failing to hold a hearing on her petition to modify the juvenile court’s orders pursuant to Welfare and Institutions Code section 388. She further argues that the court erred in failing to apply the so-called beneficial relationship exception to the severance of parental rights under section 366.26, subdivision (c)(1)(A). We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
The children were taken into protective custody in December 2005, when mother was arrested, driving a stolen car, with the children in the car. The family was homeless, the children had not eaten all day, and neither mother nor the child Destinee had their required medications. A similar incident had happened in 2003: Mother was arrested for car theft, and the children were made dependents of the juvenile court while mother served 15 months in prison. Mother had only just regained custody of the children in February 2005. The children’s father was in prison. Mother’s arrest necessarily left the children without any provision for their care and support.
The children were detained in December 2005. In February 2006, at a jurisdictional and dispositional hearing, the court declared the children dependents of the juvenile court and approved a reunification service plan for mother.
Mother was incarcerated on the new charges. She nevertheless participated in her service plan to the extent she was able. At the six-month review hearing, in August 2006, mother had been placed in a drug treatment program. She kept in contact with the social worker and sent letters and drawings to the children on a regular basis, several times a month. A relative placement had been approved for the children.
In February 2007, at the 12-month review hearing, the children had been living in the relative placement for several months. The San Bernardino County Department of Children’s Services (DCS) had recommended terminating reunification services at the 12-month hearing. Mother was still incarcerated, and the children were doing well in the relative placement. The juvenile court did terminate mother’s reunification services, and set a selection and implementation hearing under section 366.26.
In June 2007, mother filed a petition to change the court’s orders, pursuant to section 388. Mother requested that her reunification services be reinstated and that visitation be increased. As “changed circumstances” justifying the request to modify the court’s orders, mother cited: “1.) Mother has continued to participate in her case plan, as much as possible, while incarcerated; 2.) Mother has maintained consistent contact with her children via telephone calls and written communications; 3.) Mother is now residing at a half-way house and is due to be released from custody on July 21, 2007.”
The court denied mother’s petition under section 388, finding no new evidence or changed circumstances had been alleged.
At the selection and implementation hearing in June 2007, the court found both children were adoptable. The relative caretakers were ready to adopt the children. The court terminated mother’s parental rights. The court found that mother had not met her burden of showing that the beneficial relationship exception applied.
ANALYSIS
I. The Section 388 Petition Was Properly Denied
We review the court’s ruling on a section 388 petition for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
Mother contends that the court erred in denying her section 388 petition without first conducting a hearing. Abuse of discretion is also the correct standard of review on a summary denial of a section 388 petition. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413-1414.)
A parent need only make a prima facie case that, (1) new evidence or changed circumstances exist, and (2) the proposed changes in the court’s orders would promote the best interests of the child, in order to trigger the right to a hearing. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
Mother’s petition here alleged that she had continued to participate in her case plan, as much as she could, while in prison. She also asserted that she was living in a halfway house and due to be released in July 2007. Mother attached a letter to her petition, from a program director, stating that mother “has begun to show a positive change in her behavior, and attitude toward [t]reatment.”
This was far from showing any changed circumstances. At best, mother might have shown that perhaps she was beginning to change her circumstances. In addition, there was nothing to show that changes in the court’s orders would benefit the children. That mother might have begun addressing her drug addiction problems did nothing toward her ability to care for the children.
While the children were in mother’s care, she was unable to provide food, shelter, or medical care for them. In 2003, and again in 2005, when mother was arrested for stealing cars or driving stolen cars, the family was homeless, the children were filthy, and they were unfed. Mother felt ill and had no medication for her epilepsy; she also had no medicine for Destinee’s asthma. None of these circumstances had even begun to be addressed.
The children, moreover, were bonding in their new relative adoptive home. Mother herself believed that the children would be well cared for in that placement.
Under these facts, the juvenile court did not abuse its discretion in determining that mother had not made a prima facie case of new circumstances or that changes in court orders would be in the children’s best interests.
II. The Beneficial Relationship Exception Did Not Apply
The juvenile court determined that the beneficial relationship exception did not apply. Courts have reached different conclusions as to the standard of review that applies to a juvenile court’s ruling on exceptions to adoptability under section 366.26, subdivision (c)(1). In In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576, the court held that a finding that no exceptional circumstances exist to prevent the termination of parental rights is reviewed under the substantial evidence test. In contrast, in In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351-1352, the court applied the abuse of discretion standard of review. For purposes of the present case, it makes no difference which standard applies because the juvenile court did not err under either test.
Under the legislative scheme, if the children are found to be adoptable, the court must select adoption as the permanent plan, together with its necessary consequence, terminating parental rights, unless one of the specified exceptions provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) The parent bears the burden of demonstrating the exception. (In re Mary G. (2007) 151 Cal.App.4th 184, 207.)
The bulk of mother’s argument on appeal is an emotional one: That the legislative preference for adoption as the preferred permanent plan is “outmoded.” This argument is addressed to the wrong entity. If mother wishes a change in the statutory preferences, she must petition the Legislature.
Otherwise, mother points to her telephone calls, cards and letters to the children as the best she was able to do under the circumstances (incarceration) to remain a bonded influence in her children’s lives. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538.) This is insufficient.
The courts have “interpreted the phrase ‘benefit from continuing the relationship’ to refer to a ‘parent-child’ relationship that ‘promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. . . .’ [Citation.] [¶] A parent must show more than frequent and loving contact or pleasant visits. [Citation.] ‘Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from the day-to-day interaction, companionship and shared experiences.’ [Citation.] The parent must show he or she occupies a parental role in the child’s life, resulting in a significant, positive, emotional attachment between child and parent. [Citations.]” (In re Mary G., supra, 151 Cal.App.4th 184, 207.)
Mother did maintain contact with the children as well as she was able, through writing and telephone calls. But she did not act as a parent to them when she was incarcerated, and failed in her duty to the children when she was not; the family was homeless, and the children were hungry when left in mother’s care. She took them with her when committing crimes. Mother was unable to stay off drugs, despite prior DCS intervention.
In their new situation, the children have become stable, healthy and happy. The children do not look to mother primarily for physical or emotional nurturance. None of the indicia of a parent-child relationship are present, so as to outweigh the benefits of a permanent adoptive home.
Whether viewed as a matter of substantial evidence, or as a matter of abuse of discretion, the juvenile court properly found that mother failed to meet her burden of showing the beneficial relationship exception applied.
DISPOSITION
The order terminating mother’s parental rights is affirmed.
We concur: RAMIREZ, P. J., KING, J.