Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD223247, JD223248, JD223249
Appellant Reina F., mother of minors D.G., Ju.K., and Ja.K., appeals from juvenile court orders denying appellant’s petitions for modification as to all three minors and terminating appellant’s parental rights as to D.G. (Welf. & Inst. Code, §§ 366.26, 388, 395.) Appellant makes several contentions of alleged prejudicial errors in the proceedings, requiring reversal. For the reasons that follow, we shall affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
BUTZ, J.
FACTUAL AND PROCEDURAL BACKGROUND
On October 31, 2005, the Sacramento County Department of Health and Human Services (DHHS) filed original juvenile dependency petitions pursuant to section 300 on behalf of the minors, who then ranged in age from three months to five years. Those petitions alleged that appellant had physically abused Ju.K. and Ja.K. The petitions also averred that appellant had mental health difficulties, placing the minors at a substantial risk of suffering serious physical harm.
The juvenile court sustained the petitions, adjudged the minors dependent children, and ordered appellant to participate in reunification services. Those services included referrals for a medication assessment and a psychological evaluation. The court also ordered DHHS to provide appellant with regular, supervised visitation with the minors.
According to a July 2006 social worker’s report, appellant had missed some visits and denied having any psychological difficulties. She also told the social worker she would not take any prescribed medications. The social worker opined that appellant had a “tendency to place fault on others and [took] little responsibility for some of her own personal actions.” Appellant was participating in some programs of her own choosing. Appellant completed parenting classes and a psychological evaluation.
Appellant had “observed visitation” with the minors twice weekly. Appellant interacted well with the minors. The minors appeared to be “very attached” to appellant. Except for some behavior issues with Ju.K., ordinarily at visits the minors behaved appropriately during the visits. However, the foster parent reported that both Ja.K. and Ju.K acted out on days and nights before they visited appellant. However, D.G. had no such difficulties before or after visits with appellant.
An August 2006 psychological evaluation reported appellant denied any mental health difficulties or inflicting any physical harm to the minors, although acknowledging she might have employed physical disciplinary measures on them. The reporting psychologist opined that appellant suffered from “significant personality problems marked with paranoid personality character dynamics, narcissism, and antisocial qualities.” Moreover, the psychologist found, appellant would not “take any responsibility for any poor choices or inappropriate behaviors in which she might engage.”
Appellant’s therapist reported to DHHS that appellant had improved in several respects, including taking responsibility for her actions. That therapist recommended reunification of the minors with appellant. Moreover, appellant told DHHS that medication was not recommended for her.
Concluding that appellant had failed to address adequately the reasons for the dependency proceedings, continued to deny mental health issues, and failed to assume responsibility for physically abusing two of the minors, DHHS recommended termination of appellant’s reunification services.
On January 18, 2007, the juvenile court terminated appellant’s reunification services.
A bonding assessment dated May 3, 2007, concluded the benefits of permanent placement for the minors outweighed any detriment suffered by the minors in severing their relationship with appellant. That report also found D.G. appeared to be more bonded to her foster parent than to appellant. The report noted appellant continued to participate in counseling.
In a report prepared for the section 366.26 hearing, DHHS recommended adoption as the permanent plan for the minors. However, as no adoptive home had been located for Ju.K and Ja.K, DHHS recommended a continuance of the hearing for them so that DHHS would have additional time to seek a prospective adoptive family. As to D.G., DHHS opined it was “highly likely” that she would be adopted, as she was living with a relative who was committed to adopting the minor. Although appellant had maintained visitation with D.G., that minor had a “bonded relationship” with her maternal aunt and referred to her as “‘mom.’”
On June 4, 2007, appellant filed a petition for modification as to each minor, seeking their return to her custody. Each petition averred that it was in the best interest of the minors to be returned to appellant “so that they can be together and benefit from the significant bond that they have with [appellant] and each other.” The petitions also claimed appellant had participated in counseling, did not require medication, had stable housing and employment, maintained regular visitation with the minors, and had completed all aspects of her original case plan. Appellant also averred the minors continued to struggle in placement and adoption did not appear likely for Ja.K. and Ju.K. In support of her petitions, appellant attached numerous documents.
Appellant was absent from the June 28, 2007 hearing on her petition for modification. Appellant’s counsel told the juvenile court that he had learned appellant had left earlier in the day to attend a funeral. Counsel then submitted the matter on the petitions and attached documents.
At the conclusion of the hearing, the juvenile court stated: “Okay. The Court is going to deny the [section] 388 petition[s]. I would note when I first read this petition last night just on the face of the petition I felt it was very well pled and very well stated and wondered why this might not be appropriate especially in light of the [section 366].26 report revealing that, at least, as to [two of the] children that the children do have some behavioral issues and there are some difficulties in moving towards permanency with them. I think [D.G.] is certainly a little bit situated differently given the current stability in her placement and length of time she has been there as well as the issues the mother has suffered from. [¶] But [county counsel] is absolutely correct, in reviewing the entirety of the court file the mother has failed to demonstrate that there are changed circumstances regarding the sustained [section] 300[, subdivision] (a) petition that she has dealt with the non-accidentally inflicted physical abuse to these children and that she has demonstrated that she is in a position now to be able to appropriately parent the children. The psychological evaluation referenced is also highly concerning given the--the, I guess, tentative views of that evaluator regarding the mother’s ability to demonstrate progress and the ability and capacity to change. [¶] I think that the case law is very clear that--that the provision of services is designed to ameliorate the conditions that led to dependency. In this case the mother is not showing that she yet even acknowledges or understands the reasons or is willing to discuss and truly resolve those reasons, and as such it would be difficult if not impossible for her to demonstrate true and meaningful progress. So in evaluating the petition, the Court is considering not only the seriousness and reasons for the original dependency action but the strength and nature of the relationship between the children, which is best laid out in the [DHHS] report, the degree to which the continuing problem may be easily resolved based on [a psychological] evaluation . . . and the lack of evidence that the mother is truly resolving the problems. [¶] So the Court finds neither a sufficient change of circumstance nor that the best interest of the children will be served, and the petition is denied.”
At the section 366.26 hearing, appellant testified she had continued to visit the minors regularly, and did not recall ever missing a visit. According to appellant, her visits with D.G. went well, and the minor called her “mom.” Appellant opposed the recommendation by DHHS that D.G. be adopted. Instead, appellant believed the minor should be returned to her custody. Appellant felt the minor was bonded to her as well as to the minor’s aunt, who was the minor’s caregiver.
At the conclusion of the hearing, appellant’s counsel argued the statutory exception to adoption based on appellant’s relationship with D.G. should preclude termination of parental rights. According to counsel, a “significant bond” between appellant and D.G. existed, and it would be in the minor’s best interest to maintain their relationship. The juvenile court disagreed, ruling instead “[t]here is insufficient evidence in front of the Court at this point in time for the Court to conclude that terminat[ion] of parental rights would be detrimental to the child as defined in Section 366.26 subdivision (c)(1) . . . . [¶] Clearly, as is almost always the case, it would be detrimental to [appellant]. But the evidence before the Court reveals that [D.G.] is appropriately placed. That her relationship with her mother appears to give some incidental benefit but not that the mother occupies such a parental role in terms of a parent/child relationship that [D.G.] would suffer long-term detriment.”
The juvenile court found it likely that D.G. would be adopted and terminated appellant’s parental rights as to D.G.
DISCUSSION
I
Appellant contends the juvenile court abused its discretion by conducting the hearing on appellant’s petitions for modification in the absence of both appellant and her previous counsel. According to appellant, under the circumstances presented, a continuance was required to permit her an opportunity to attend a funeral and obtain the benefit of proceeding with her previous counsel. Moreover, appellant argues, a continuance would not have prejudiced the interests of the minors.
The juvenile court has the discretion to continue the section 366.26 hearing. (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1798; In re Michael R. (1992) 5 Cal.App.4th 687, 694.) However, that discretion is guided and limited by section 352, subdivision (a), which provides in pertinent part: “Upon request of counsel for the parent . . . the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor. In considering the minor’s interests, the court shall give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements. [¶] Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance.”
We treat the hearing on the petitions as a part of the section 366.26 hearing.
The record does not reflect that the required “good cause” necessary to justify a continuance existed. The petitions and attached documents were before the juvenile court. Moreover, appellant was represented by counsel at the hearing. Finally, appellant does not identify what matters she would have raised at the hearing that were not already before the court. On this record, we find no basis for concluding the juvenile court abused its discretion in failing, sua sponte, to order a continuance of the hearing on the petitions. There was no error.
II
Appellant claims the juvenile court abused its discretion in denying her petitions for modification. Noting the evidence of changed circumstances adduced at the hearing, appellant asserts the best interests of the minors would have been promoted by returning the minors to her custody. According to appellant, the record reflects the existence of a strong bond between appellant and the minors. Finally, appellant asserts, she had assumed responsibility for her previous actions and there was no reason she could not incorporate her newly acquired parenting skills for the minors’ benefit.
Section 388, subdivision (a), provides that a parent of a dependent child may petition the juvenile court “upon grounds of change of circumstance or new evidence . . . for a hearing to change, modify, or set aside any order of court previously made.” Section 388 permits modification of a dependency order if a change of circumstance or new evidence is shown and if the proposed modification is in the best interests of the minor. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526 (Kimberly F.).)
When a petition for modification is brought after the end of the reunification period, the best interests of the child are the paramount consideration. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In assessing the best interests of the child at this stage of the proceedings, the juvenile court looks to the child’s needs for permanence and stability. (Ibid.)
The party petitioning for modification has the burden of proof by a preponderance of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 48.) A modification 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.)
In denying appellant’s petitions for modification, the juvenile court recognized she had made efforts to ameliorate the difficulties underlying the dependency petitions. However, doubtless out of concern for the minors’ needs, the court did not find a sufficient change of circumstances and suggested the best interests of the minors would be promoted by proceeding to the selection of permanent plans for them.
The determination by the juvenile court was well within its discretion. As the record reflects, appellant had made some progress, and her efforts are to be commended. But the record also suggests that appellant faced continued participation in programs. In the meantime, it was likely, as the record suggests, that the minors would continue to develop and attach to adult figures.
For example, the May 2007 bonding assessment and a June 2007 social worker’s report noted appellant was continuing to participate in two different counseling programs.
In her petitions, appellant averred it was in the best interests of the minors to return to parental custody, in large part due to the close bond they shared. The difficulty with appellant’s petitions is her failure to allege pertinent facts in support of her belief that the minors’ best interests required reunification with appellant. A prima facie showing requires the proffering of facts relevant to the claim made. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) Mere beliefs, without facts to support them, do not constitute prima facie evidence of the minors’ best interests. Here, it is not enough to assert, as appellant does, that the minors should be returned to her because of placement issues with Ju.K. and Ja.K., and due to significant bonds among all of them. At the time of the hearing on the modification petitions, the minors had been out of appellant’s custody for a substantial period of time, well over one year. Appellant’s petitions, therefore are deficient because they contain few, if any, facts relating to the minors’ current circumstances.
Appellant’s brief emphasizes the strength of the bond with the minors and the efforts she was making to become a better parent. As noted, appellant says little about the minors’ circumstances and feelings. The focus of appellant’s brief appears to be on appellant, rather than on the minors. Moreover, the record reflects that, although Ju.K. and Ja.K. had reported they did not want to be adopted, the only time either talked about appellant was on the day of a scheduled visit with her. They did not ask for additional visits, and both stated the most significant adults in their lives were their foster parents. Finally, as to D.G., the record suggests she was much more attached to her prospective adoptive parent than to appellant.
Most importantly, in her petitions appellant did not allege any facts that the minors’ needs for permanence and stability would be promoted by return to a parent who did not see the necessity for DHHS involvement and who denied physical abuse, even though the juvenile court had so found.
In Kimberly F., supra, 56 Cal.App.4th 519, the appellate court warned against the juvenile court simply comparing the situation of the natural parent with that of a caretaker in determining a section 388 petition. It termed such an approach the “‘simple best interest test.’” (Kimberly F., at p. 529.) Instead, the appellate court found that determining a child’s best interests under section 388 required an evaluation of a number of factors, including the seriousness of the reason for the dependency action, the existing bond between parent and child and caretaker and child, and the nature of the changed circumstances. (Kimberly F., at pp. 530-532.) The court suggested it was unlikely a parent who lost custody because of sexual abuse of a minor could prevail on a section 388 petition, whereas in a “dirty house” case, which was present in Kimberly F., the chances of success were greater. (Id. at pp. 531 & fn. 9, 532.) In Kimberly F., the court concluded the decision to deny the section 388 petition was based largely and improperly on the juvenile court judge’s adoption of the “‘narcissistic personality’ rationale” (Kimberly F., at p. 533), which the judge had applied to the mother in that case. (Id. at pp. 526, 527, 532-533.)
In this case, in denying appellant’s section 388 petitions, the juvenile court referred to the factors analyzed in Kimberly F., supra, 56 Cal.App.4th 519. Moreover, evidence of all of the critical factors contained in Kimberly F., including the basis of the dependency action, the relationship between appellant and the minors, and the nature of the alleged changed circumstances, was before the court. The court’s extensive comments about the case suggest it considered carefully all pertinent circumstances. On the record before it, the court concluded that appellant failed to sustain her burden. Under the abuse of discretion standard, we see no error in that determination.
The juvenile court was required by statute (§ 388) to focus on the minors’ best interests in deciding whether to grant the petitions for modification. As we have seen, those interests consist of the minors’ needs for stability and permanence. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Childhood cannot wait for a parent to establish readiness for parenting. (Id. at p. 310; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) As the record suggests, appellant requires more time in order to fully develop appropriate parenting skills. Here, despite some difficulties, the minors had shown the ability to adjust to different foster care placements. On the other hand, appellant was still working on the problems that had contributed to the dependency proceedings. On this record, it is not surprising that the court suggested impliedly that the minors should not be forced to wait any longer.
It is true, as appellant notes in her brief, that her therapist’s conclusions differed markedly from the opinions of other experts who examined appellant. For example, appellant’s therapist noted appellant’s “remarkable improvement” and asserted that she had taken responsibility for her actions. On the other hand, as reported by DHHS, a psychological evaluation of appellant was not sanguine about her prospects. Moreover, the social worker also reported that appellant did not appear to understand why the minors were removed from her custody, appeared to minimize her actions, and denied that she had inflicted any physical injury on the minors. The record reflects the juvenile court made credibility determinations, as it was entitled to do. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
Under the circumstances of this case, the juvenile court did not act arbitrarily, capriciously, or beyond the bounds of reason in denying appellant’s petitions for modification. The court’s determination that the minors’ need for permanency compelled denial of the petitions and served the minors’ best interests was reasonable and is supported by the record. (Cf. In re Edward H., supra, 43 Cal.App.4th at p. 594.) In sum, appellant failed to make the necessary showing, as required by section 388, that a modification would promote the best interests of the minors. (Compare In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416 with In re Heather P. (1989) 209 Cal.App.3d 886, 891.) There was no abuse of discretion or other error in the court’s decision. (Cf. In re Daijah T. (2000) 83 Cal.App.4th 666, 673-675.)
III
Appellant also claims the juvenile court’s failure to apply the beneficial relationship exception to adoption, contained in the former version of section 366.26, subdivision (c)(1)(A) in effect at the time of the section 366.26 hearing (now subd. (c)(1)(B)(i)), is not supported by substantial evidence. Noting evidence of a positive attachment existing between appellant and D.G., appellant argues the court committed reversible error in terminating her parental rights as to D.G.
“‘At the selection and implementation hearing held pursuant to section 366.26, 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.’” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)
One of the circumstances under which termination of parental rights would be detrimental to the minor is: “The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, former subd. (c)(1)(A) [now subd. (c)(1)(B)(i)].) The benefit to the child must promote “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.)
The parent has the burden of establishing the existence of any circumstances that constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373.) The juvenile court is not required to find that termination of parental rights will not be detrimental due to specified circumstances. (Id. at p. 1373.) Even frequent and loving contact is not sufficient to establish the benefit exception absent 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 this case, although the record discloses that appellant had regular contact with D.G., there is ample evidence that their visits did not reflect the existence of a significant parent-child relationship. For example, according to the social worker’s report, D.G. referred to her caregiver as “‘mom.’” She had strongly bonded with her. Moreover, as appellant acknowledged, she had had only supervised visits with D.G. Finally, D.G. had lived most of her life outside of appellant’s custody.
Section 366.26 requires both a showing of regular contact and a separate showing that the child actually would benefit from continuing the relationship. The Court of Appeal, Fourth Appellate District, Division One, in In re Autumn H., supra, 27 Cal.App.4th at page 575, interpreted the statutory exception to involve a balancing test, and both In re Autumn H. and In re Beatrice M. posit a high level of parental-type involvement and attachment. (In re Autumn H., at pp. 575-576; In re Beatrice M., supra, 29 Cal.App.4th at p. 1418.) Even assuming those decisions overemphasized the importance of the parental role, the record here does not support appellant’s suggestion that D.G. would benefit from continuing her relationship with appellant simply because of the attachment existing between them. (Cf. In re Amanda D. (1997) 55 Cal.App.4th 813, 821-822.)
Appellant suggests the record establishes the existence of a beneficial relationship between D.G. and herself, precluding a finding of adopt ability. The juvenile court was authorized to conclude the contrary was true. Evidence of a significant parent-child attachment by itself does not suffice. Instead, the record must show such benefit to the minor that termination of parental rights would be detrimental to D.G. (§ 366.26, former subd. (c)(1)(A) [now subd. (c)(1)(B)(i)].) Here, as the court determined, the record was bereft of such a showing. Instead, there was evidence suggesting it was critical for D.G. to obtain the benefits of a stable placement.
In In re Brandon C. (1999) 71 Cal.App.4th 1530, cited by appellant, the juvenile court found it was in the best interests of the minors to establish a guardianship, rather than terminate parental rights, so the minors could maintain their relationship with their mother. (Id. at p. 1533.) Affirming, the Court of Appeal held that substantial evidence supported the juvenile court’s conclusion that terminating parental rights would be detrimental to the minors, because their mother had maintained regular, beneficial visitation with them. (Id. at pp. 1533, 1534-1535, 1537, 1538.)
In re Brandon C. is distinguishable from the proceedings here. The Brandon C. court found ample evidence of benefit to the minors of continued contact with their mother. (In re Brandon C., supra, 71 Cal.App.4th at pp. 1537, 1538.) Here, by contrast, the record supports the juvenile court’s conclusion that there would not be sufficient benefit to D.G. if her relationship with appellant were continued. Moreover, as the record also suggests, the minor had a need for stability and security, a need which only adoption could satisfy.
Appellant suggests that because she had maintained a significant parent-child relationship with the minor, which included a short history together and regular contact while in placement, the circumstances of her case compare favorably with those found in other cases. We disagree. In In re Casey D., supra, 70 Cal.App.4th at page 51, the Court of Appeal did not find an “exceptional case” where a beneficial parent-child relationship existed that would preclude adoption. Accordingly, the court in Casey D. affirmed the order that terminated parental rights. (Id. at pp. 53, 54.) However, the court in Casey D. did recognize the possibility that a beneficial relationship might exist despite the absence of daily contact between parent and child. (Id. at p. 51.) The difficulty for appellant here is that she cannot establish the requisite beneficial relationship with D.G., in the absence of which the exception does not apply.
Here, the issue was as follows: In light of D.G.’s likely adopt ability, would a continued relationship with appellant benefit D.G. to such a degree that it would outweigh the benefits D.G. would gain in a permanent adoptive home? Substantial evidence in the record supports the juvenile court’s answer in the negative. On the record before it, the juvenile court could conclude, as it did, that only adoption, which is the preferred disposition (In re Ronell A., supra, 44 Cal.App.4th at p. 1368), would promote the best interests of D.G. As the record reflects, the juvenile court had before it ample evidence on the matter, including appellant’s testimony.
After it became apparent that appellant would not reunify with D.G., the juvenile court had to find an “exceptional situation existed to forego adoption.” (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) In this case, on the contrary, the court determined that D.G. would not benefit from continuing a relationship with appellant to such a degree that termination of parental rights would be detrimental to D.G. Appellant had the burden to demonstrate the statutory exception applied. We conclude that appellant failed to make such a showing. Therefore, the court did not err in terminating parental rights as to D.G. (In re Amanda D., supra, 55 Cal.App.4th at pp. 821-822.)
DISPOSITION
The orders of the juvenile court denying appellant’s petitions for modification as to all three minors and terminating appellant’s parental rights as to D.G. are affirmed.
We concur: DAVIS, Acting P.J., RAYE, J.