Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD223755
HULL, J.Appellant, mother of the minor, appeals from the juvenile court’s orders denying her request for modification and terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 388, 395; undesignated statutory references that follow are to the Welfare and Institutions Code.) Appellant contends the juvenile court erred by denying the modification petition and terminating her parental rights. We affirm the orders.
Facts and Proceeding
On December 30, 2005, appellant and the minor’s father were involved in an incident of domestic violence during which the father assaulted appellant while she was holding the six-month-old minor. Appellant was transported by ambulance for treatment due to injuries she sustained during the assault. On January 24, 2006, appellant, while caring for the minor, ingested eight Vicodin tablets in an apparent suicide attempt.
Based on these incidents, the minor was detained and Sacramento County Department of Health and Human Services (DHHS) filed a section 300 petition on behalf of the minor alleging the parents had failed to protect the minor from substantial risk of harm. (§ 300, subd. (b).) The juvenile court sustained the allegations in the petition.
Appellant began participating in weekly therapy as a result of the drug overdose in January 2006. She also began attending domestic violence classes in February 2006 and parenting classes in March 2006. At the time of detention, appellant worked as a bookkeeper six hours per day and attended college courses. Appellant and the minor’s father separated in January 2006 after a domestic violence incident and remained separated until at least mid-February 2006. They later moved back in together.
A contested disposition hearing took place on May 11 and 12, 2006. The juvenile court adjudged the minor a dependent child of the court and ordered her removed from the custody of her parents. Appellant was granted reunification services, including individual counseling, conjoint counseling with the father, domestic violence training, a psychological evaluation, parenting education, and visitation.
Appellant’s visitation was initially supervised and the visits went well. Appellant interacted appropriately with the minor and the minor enjoyed the visits. Appellant and the minor “enjoyed playing, laughing and reading books together” and the minor continually giggled and smiled during visits.
In June 2006, appellant progressed to unsupervised visitation at the maternal grandmother’s home. According to the maternal grandmother, appellant initially visited 33 hours per week, as appellant was not then in school. The visits occurred on the following schedule: Tuesday for three hours, Thursday for three hours, Friday for three hours, Saturday for 12 hours, and Sunday for 12 hours.
Also in June 2006, appellant was hospitalized for depression and suicidal ideation. She was discharged several days later with a prescription for Prozac.
On July 11, 2006, appellant and the minor’s father engaged in another instance of domestic violence. Appellant left the joint home for four weeks and stayed with the maternal grandmother. Appellant then returned to the joint home.
A review hearing was held on October 12, 2006, during which appellant, the minor’s father, and the social worker testified. Appellant had completed her parenting classes, her domestic violence classes, and most of her individual counseling sessions. Appellant, however, now claimed she had lied about being the domestic violence victim and, in fact, had actually been the aggressor. Appellant requested services be continued to include couple’s counseling and anger management services.
The juvenile court found the minor’s father had not regularly participated in services. The court also found that, while appellant had participated in the services, she had failed to make substantive progress. The court stated it found neither appellant nor the minor’s father to be credible and noted that appellant had demonstrated that her relationship with the minor’s father was more important to her than her relationship with the minor. Finding return of the minor would create a substantial risk and no substantial probability of return of the minor by the 12-month hearing, the juvenile court terminated reunification services and set a permanency planning hearing.
A few days later, on October 20, 2006, appellant and the minor’s father engaged in yet another instance of domestic violence. During this altercation, the minor’s father choked appellant and threatened to kill her. The following week, appellant applied for a restraining order against the minor’s father. The application for the restraining order was granted.
On December 21, 2006, appellant filed a petition for modification of the October 16, 2006 order terminating reunification services. The petition alleged changed circumstances in that, after the latest incident of domestic violence, appellant had obtained a restraining order and moved out of the shared apartment. Appellant had also obtained a new job and had plans to resume taking college courses. She also resumed her individual counseling and intended to address anger management “among other issues.” Appellant requested return of the minor or, in the alternative, reinstatement of reunification services. Her petition alleged the requested modification would benefit the minor because they had a close existing bond and because appellant had demonstrated the ability to overcome adversity.
The juvenile court denied the modification petition. It found that, while appellant’s circumstances were changing and may continue to change, they were not changed. The court noted that, although appellant had continued her individual counseling, it did not know what issues were being addressed, or specifically what appellant was doing to set boundaries, address the codependency issues, and address the mental health issues. The court further stated that it could not find a delay in permanency to be in the minor’s best interest because appellant “is getting to the point where maybe she is starting to recognize the problem and be responsive to it.” The risk to the minor had not been resolved to a point that would allow her return in the foreseeable future.
Around December 2006, when a new social worker was assigned to the case, appellant’s visitation with the minor was reduced to approximately seven hours a week. Due to appellant’s school schedule, however, appellant visited primarily on weekends. As a result of this change in visitation, the maternal grandmother noticed the minor no longer went to appellant to fulfill her needs.
A bonding assessment was performed prior to the permanency planning hearing. The assessment concluded that the bond between appellant and the minor was positive, but weak. The minor had adjusted to multiple caregivers, as she was placed in foster care but spent Friday through Sunday with the maternal grandparents. Although the minor enjoyed appellant’s visits, the minor was not distressed upon leaving appellant. It did not appear that the minor relied upon appellant for physical or emotional safety or comfort.
The assessment further explained that “the lack of a permanent and stable placement is likely to be more detrimental to [the minor’s] long term physical and emotional functioning than discontinuing the relationship with her biological mother. Emotional and physical care within a stable and continuous relationship is a fundamental need of all children, particularly for those as young as [this minor]. In order to develop the capacity for healthy relationships in the future, it is necessary for [the minor] to form a nurturing and consistent attachment to a permanent caregiver(s). Continuing to re-engage in an intermittently positive relationship with the continued risk of disruption, will likely reinforce to [the minor] that parent-child relationships are temporary or fleeting. In turn, this will negatively impact [the minor’s] ability to establish a stable and predictable relationship with a caregiver in the future. In addition, [the minor] appears remarkably resilient to the multitude of changes that she has experienced thus far. However, continued uncertainty and instability (resulting from the lack of a permanent placement) would likely have a negative effect on [the minor’s] adjustment and may lead to an increase in disruptive or maladaptive behaviors. In essence, a permanent separation from [appellant] would not be so detrimental to [the minor’s] long-term functioning as to outweigh her need for a secure and permanent placement.”
Finally, the assessment went on to explain that, should parental rights be terminated, future intermittent positive contact with appellant may not be detrimental under certain specified conditions.
The permanency planning hearing took place on April 9, 2007. Appellant argued for a permanent plan of guardianship based upon her bond with the minor. The juvenile court terminated parental rights, finding the minor was likely to be adopted and that termination of parental rights would not be detrimental to her.
Discussion
I
Modification Petition
Appellant contends the court abused its discretion in denying her petition for modification because the court failed to accept her demonstration of changed circumstances and did not find a change would be in the best interest of the minor. We disagree.
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.)
“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. (1999) 70 Cal.App.4th 38, 47.)
The juvenile court did not abuse its discretion when it decided that appellant’s circumstances had not sufficiently changed to justify a modification of the juvenile court’s standing orders. Construed liberally, appellant established only that, after nine months of services, she was beginning to address some of the problems which led to the dependency action.
Appellant relies predominantly on the fact that she had obtained a restraining order against the minor’s father and had obtained a separate residence after their most recent, October 2006, bout of domestic violence. Appellant and the minor’s father, however, had also temporarily separated after their January and July domestic violence incidents, and then returned to living together and continuing their violent relationship. Given the long-standing tumultuous relationship between appellant and the minor’s father and appellant’s pattern of returning to the minor’s father after incidents of domestic violence, appellant’s three-month separation did not establish a changed circumstance. As found by the juvenile court, appellant had “not put herself in a position to demonstrate that she [had] either solved the problem or that she’s doing much more than making the preliminary steps toward solving the problem.”
Likewise, appellant failed to meet her burden that a change in the juvenile court’s order was in the best interest of the minor.
In determining the child’s best interests, the juvenile court may and did consider “(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.)
Although appellant emphasizes that the minor was never physically injured during her parent’s bouts of domestic violence, domestic violence is unquestionably serious. The reason for the continuation of this problem was appellant’s failure to acknowledge it. Although she had participated in services, she had not benefitted from those services. Not only did the domestic violence continue after she completed her courses, appellant changed her story and claimed to have lied about the minor’s father being the aggressor. Then, only a week later, the minor’s father injured her in another instance of violence.
The domestic violence was a serious problem that had not been substantially ameliorated. Appellant had been separated from the minor’s father for only a few months, had established a pattern of returning to him after previous separations, and had not presented any evidence of any progress in terms of domestic violence education, setting boundaries, her codependency issues, and her mental health issues since the termination of reunification services. Thus, despite the fact that appellant’s visits with the minor were pleasant, she simply did not establish that the minor could be safely returned to her custody, even in the near future, so as to make delaying permanency in the minor’s best interest.
We note that, in arguing the relative bond between appellant and the minor and the degree the problem may or has been ameliorated, appellant relies primarily on evidence contained in the bonding assessment and evidence presented at the section 366.26 hearing. This evidence, however, was not before the juvenile court at the hearing on appellant’s petition for modification.
In any event, the juvenile court did not abuse its discretion in denying appellant’s petition for modification.
II
Termination of Parental Rights
Appellant contends the juvenile court abused its discretion in failing to find she had established that termination of parental rights would be detrimental because the minor would benefit from continued contact with her. We conclude the juvenile court did not err in terminating appellant’s parental rights.
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. [Citation.] 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).) 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; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; 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)(A).) However, “a parent may not claim entitlement to the exception provided by subdivision (c)(1)(A) simply by demonstrating some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349.) 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 other words, the court balances 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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
Even frequent and loving contact is not sufficient to establish this benefit absent a significant positive emotional attachment between parent and child. (In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Brian R. (1991) 2 Cal.App.4th 904, 924.) “The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child’s particular needs are some of the variables which logically affect a parent/child bond.” (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)
Moreover, “[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., supra, 78 Cal.App.4th at p. 1350.)
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. (1999) 77 Cal.App.4th 799, 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, the record reflects the minor had been removed from appellant’s care when she was six months old and had been in foster care for well over a year. The bonding assessment thoroughly evaluated the effect of terminating the minor’s relationship with appellant and the minor’s need for a stable placement, and concluded that the lack of a permanent placement was likely to be more detrimental to the minor than discontinuing the relationship with appellant.
Although appellant visited consistently and regularly, it did not appear that the minor relied upon appellant for physical or emotional safety or comfort. The minor enjoyed the visits but was not distressed upon leaving appellant. Thus, it did not appear the minor would suffer significant detriment from termination of parental rights. Moreover, the evidence established that, although the minor had adjusted to multiple caregivers, continued uncertainty and instability, resulting from a lack of a permanent placement, would likely have a negative effect on the minor’s adjustment.
In sum, the evidence supported the juvenile court’s finding that the quality of appellant’s relationship with the minor was not strong enough to outweigh the benefits the minor would gain from an adoptive placement.
Disposition
The orders of the juvenile court are affirmed.
We concur:
SCOTLAND, P.J., CANTIL-SAKAUYE, J.