Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD224076
CANTIL-SAKAUYE, J.
K.M. (appellant), the mother of K.C. (the minor), appeals from an order of the juvenile court terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395.)
Appellant contends the juvenile court abused its discretion in denying her petition for modification of previous court orders (§ 388) and erred prejudicially in terminating her parental rights because substantial evidence existed for application of a statutory exception to adoption. (§ 366.26, subd. (c)(1)(A).) We disagree with those claims and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2006, the Sacramento County Department of Health and Human Services (DHHS) filed an original juvenile dependency petition pursuant to section 300 on behalf of the minor, who was seven years old at the time. That petition alleged appellant left the minor with an inappropriate caretaker and smoked marijuana in the minor’s presence. The juvenile court sustained the petition and adjudged the minor a dependent child. Appellant waived her right to reunification services.
A maternal aunt living in Connecticut expressed an interest in adopting the minor, and appellant supported that interest. Thereafter, however, the aunt decided against seeking the minor’s adoption. Partly as a result of the aunt’s decision, appellant advised the juvenile court that she wanted reunification services and a return of the minor to her custody.
In December 2006, appellant filed a petition to modify previous juvenile court orders that found she waived reunification services and scheduled a section 366.26 hearing. Appellant now requested the minor’s return to appellant’s custody or an order granting her reunification services. In support of her petition, appellant alleged that, by engaging in various programs, she was addressing the issues that led to the minor’s removal from her custody. According to appellant, she had maintained stable employment and housing, and was consistently visiting the minor.
Appellant alleged that granting her petition would be in the minor’s best interest because appellant had been receiving services on her own initiative, a strong bond existed between herself and the minor, and the minor wanted to resume a long-term relationship with appellant.
DHHS recommended termination of parental rights and adoption as the appropriate permanent plan for the minor. In November 2006, DHHS placed the minor in the home of a prospective adoptive family. According to DHHS, the minor was affectionate with her prospective adoptive parents, but resisted offers of physical affection from appellant during their visits. The minor also allegedly told the social worker that she was “extremely happy” living with the prospective adoptive parents and indicated her wish to be adopted by them.
At the February 2007, hearing on the petition for modification and selection and implementation of a permanent plan, appellant testified she believed DHHS should not have commenced the dependency proceedings. Appellant also denied using illegal drugs, and stated she had not participated in any substance abuse treatment program. However, appellant indicated a willingness to attend a substance abuse counseling program and submit to drug testing, if necessary. Appellant also acknowledged her visits with the minor were supervised and that she had had no overnight visits with the minor.
Appellant, who indicated she wanted the minor returned to her custody, told the juvenile court that she was receiving various services on her own. Appellant had three jobs, her own home, attended a support group and went to parenting classes. Moreover, appellant had begun visiting the minor regularly again. According to appellant, the minor enjoyed their visits. Appellant disagreed with the recommendation by DHHS to terminate appellant’s parental rights.
The minor testified she was willing to be adopted by her prospective adoptive parents. She enjoyed living with them. However, the minor also indicated that if she could live with anyone, it would be with appellant.
Social worker Sandra Collins testified she supervised visits between appellant and the minor. According to the social worker, the minor appeared to enjoy the visits. However, the social worker stated the minor generally was not affectionate with appellant, and she characterized their relationship as “more of a peer relationship than a parent/child relationship.” The social worker also noted that at the end of visits the minor did not appear to have difficulty separating from appellant.
Appellant’s counsel argued that granting her petition for modification would be in the best interests of the minor “since [appellant] has proven there [has] been a change in circumstances.” Appellant also averred that she had established an exception to adoption because she and the minor “have a bond and it would be detrimental to severe [sic] parental rights because the [minor] would continue to benefit from a relationship with [appellant].” Finally, counsel for appellant urged the juvenile court to establish a guardianship or other long-term placement with the minor’s prospective adoptive parents as an alternative to adoption.
At the conclusion of the hearing, the juvenile court denied the petition for modification and terminated appellant’s parental rights. In doing so, the court stated in part as follows: [¶] “Okay. Thank you. All right. I’ve carefully considered all the arguments and evidence in this matter and carefully considered the reports and the 388. On the 388, to start there, what -- the first prong, as counsel mentioned, is there a change of circumstances. I think that’s a close call, but I’m going to assume for purposes of my decision here that there is a change of circumstances. The mother has gotten more stability now than she had when the case was initially started or when she waived reunification services in June 2006. I say it’s a close call because she doesn’t accept the fact that there were any problems to start with and she has not received any drug treatment services and two of the allegations do involve drug-related issues. But for purposes of this right now I am going to find its more likely than not that she has made changed circumstances. So she’s met prong number one, although I think it’s a close call. [¶] Prong number two, I think it’s more likely than not -- I find based on the evidence it’s more likely than not that it would not be in [the minor’s] best interest to grant the 388 for the reasons that have been stated, but the ones to me that are particularly strong is at this point as the counsel know the law requires that we focus on permanency and stability. To open up reunification services under the facts of this case, especially when services were waived at a certain point and also because the mother hasn’t had any drug treatment and does appear to not acknowledge some of the problems, it would interject a lot of uncertainty and put this case and put [the minor’s] life in a state of limbo for at least six or maybe twelve months. Just like counsel said, she’s already had a lot of instability in her life and this would just inject greater instability and that couldn’t be in her best interest. [¶] On top of that, there’s conflicting evidence about the relationship between [the minor] and her mother, unfortunately. I think there’s reason to believe there’s not a close relationship. [The minor’s] testimony was conflicted, I agree, but I -- there is evidence of a lack of parental/child relationship, some lack of affection, and [the minor] did testify that she would not -- it would be okay if she didn’t see her mother, although she did testify that she would like to live with her mother. There’s conflict on that, but I can’t find that second prong has been met by a preponderance of the evidence. If anything I think the visitation supervisor’s testimony, the information in the addendum from January 17th and [the minor’s] own testimony probably makes it -- convinces me it’s more likely than not that it’s not in her best interest to reopen services and put her life in a state of limbo. [¶] On the .26 -- so the 388 is denied. On the .26 there’s no issue that she’s adoptable. There is clear and convincing evidence that she’s adoptable. The adoptive parents have an approved home study, [the minor] has indicated she would like to be adopted, the prospective adoptive parents are -- according to the addendum are ready to adopt her. The issue is whether there’s an exception. Again, I don’t find that that burden has been met. I would have to find that she would be greatly harmed if there’s termination of parental rights. I don’t think she’ll be greatly harmed. I don’t think the relationship is so strong that she’ll suffer great harm. I think the evidence is pretty convincing that the relationship -- she has fun at visits with her mother, but there’s not a parental relationship there. [¶] Again I go back to the lack of affection and calling her by her first name, although she does recognize her mom and does have fun visiting her, but I don’t think she’ll suffer great harm. That’s the standard required by law. I’m sure she’ll be -- I think she’ll be tearful, she’ll have some distress as a result, but not the kind of great harm that’s required by law that would outweigh the preference for adoption. So it’s an unfortunate situation, but here we are.”
DISCUSSION
I.
Appellant claims the juvenile court abused its discretion in denying her petition for modification. Noting the evidence of changed circumstances adduced at the hearing, appellant asserts the best interests of the minor would have been promoted either by returning the minor to her custody or by granting appellant reunification services. According to appellant, the record also reflects the existence of a strong bond between appellant and the minor.
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 petition for modification, the juvenile court recognized she had made efforts to ameliorate some of the difficulties underlying the dependency petition. However, doubtless out of concern for the minor’s needs, the court suggested the best interests of the minor would be promoted by proceeding to the selection of a permanent plan.
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 more time lay ahead for appellant in which she would continue to participate in programs. Moreover, as appellant acknowledged, she had not participated in a substance abuse program. In the meantime, it was likely, as the record suggests, that the minor would continue to develop and attach to adult figures.
In her petition, appellant averred it was in the best interests of the minor to return the minor to parental custody or provide appellant with reunification services, due to the close bond they shared. But, at this point in the proceedings, the focus of the case had shifted to the minor’s interests, and it was unreasonable to expect the minor to wait for appellant to establish her fitness as a parent. As the record suggests, appellant requires more time in order to develop appropriate parenting skills.
The difficulty with appellant’s petition is her failure to allege pertinent facts in support of her belief that the minor’s 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 minor’s best interests. Here, it is not enough to assert, as appellant does, that the minor should be returned to her because “there is a strong bond” between them. At the time of the hearing on the modification petition, the minor had been out of appellant’s custody for a substantial period of time, approximately one year. Appellant’s petition, therefore, is deficient because it contains few, if any, facts relating to the minor’s current circumstances.
Appellant’s brief emphasizes the strength of the bond with the minor and the efforts she was making to become a better parent. But appellant says little about the minor’s circumstances and feelings, or about the possibility that, even after modification in the form of reunification services, she might not be able to achieve reunification with the minor. The focus of appellant’s brief appears to be on appellant, rather than on the minor. Moreover, the record reflects the minor was not affectionate with appellant during their visits, and the minor had indicated a wish to be adopted.
Most importantly, in her petition appellant did not allege any facts that the minor’s needs for permanence and stability would be promoted either by a potentially lengthy period of reunification services or by return to a parent who did not see the necessity for DHHS involvement and who denied substance abuse, even though the minor reported it and the juvenile court found it.
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., supra, 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. (Id. at pp. 529, 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., supra, 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,” 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 petition, the juvenile court did not discuss the factors analyzed in Kimberly F., supra, 56 Cal.App.4th 519. However, evidence of all of the critical factors contained in Kimberly F., including the basis of the dependency action, the relationship between appellant and the minor, 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 had 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 minor’s best interests in deciding whether to grant the petition for modification. As we have seen, those interests consist of the minor’s 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. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) Here, the minor 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 the minor should not be forced to wait any longer.
We agree with the juvenile court that the record of appellant’s efforts demonstrates a showing of changed circumstances. However, as the court also observed, appellant had not addressed her substance abuse. Moreover, by including a request for services in her petition, even appellant acknowledged the possibility of a continuing need for assistance. Although recognizing the efforts made by appellant, the court also suggested appellant had only begun to make the necessary changes required to become the kind of parent to which the minor was entitled. The record suggests the minor requires the stability afforded by an empathetic, patient, loving family, for which the minor should not have to wait.
Under the circumstances of this case, the juvenile court did not act arbitrarily, capriciously, or beyond the bounds of reason in denying appellant’s petition for modification. The court’s determination that the minor’s need for permanency compelled denial of the petition and served the minor’s 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 minor. (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.)
II.
Appellant also claims the juvenile court’s failure to apply the beneficial relationship exception to adoption contained in section 366.26, subdivision (c)(1)(A), is not supported by substantial evidence. Noting evidence of a strong bond existing between appellant and the minor, and the previous relationship and frequent contact she had with the minor, appellant argues the court committed reversible error in terminating her parental rights.
“‘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, original italics.)
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, subd. (c)(1)(A).) 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 some recent contact with the minor, there is ample evidence that their visits did not reflect a parent-child relationship. For example, the minor resisted any form of physical affection from appellant. On the other hand, she was affectionate with her prospective adoptive parents. Moreover, the social worker testified that, based on her observations of visits, the minor had only a peer-type relationship with appellant.
Section 366.26 requires both a showing of regular contact and a separate showing that the child actually would benefit from continuing the relationship. In re Autumn H., supra, 27 Cal.App.4th 567, interprets the statutory exception to involve a balancing test, and both In re Autumn H. and In re Beatrice M., supra, 29 Cal.App.4th 1411, posit a high level of parental-type involvement and attachment. Even assuming those decisions overemphasized the importance of the parental role, the record here does not support appellant’s suggestion that the minor 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 the minor and herself, precluding a finding of adoptability. 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 the minor. (§ 366.26, subd. (c)(1)(A).) Here, as the court determined, the record was bereft of such a showing. Instead, there was evidence suggesting it was critical for the minor to obtain the benefits of a stable placement.
In In re Brandon C. (1999) 71 Cal.App.4th 1530, 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, 1537, 1538.)
In re Brandon C., supra, 71 Cal.App.4th 1530, is distinguishable from the proceedings here. The In re Brandon C. court found ample evidence of benefit to the minors of continued contact with their mother. (Id. at pp. 1537, 1538.) Here, by contrast, the record supports the juvenile court’s conclusion that there would not be sufficient benefit to the minor 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 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 relationship existed that would preclude adoption. Accordingly, the court in In re Casey D. affirmed the order that terminated parental rights. (Id. at pp. 53, 54.) However, the court in In re 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 the minor in the absence of which the exception does not apply.
Here, the issue was as follows: In light of the minor’s adoptability, would a continued relationship with appellant benefit the minor to such a degree that it would outweigh the benefits the minor 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 the minor. 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 the minor, 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 the minor would not benefit from continuing her relationship with appellant to such a degree that termination of parental rights would be detrimental to the minor. 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. (In re Amanda D., supra, 55 Cal.App.4th at pp. 821-822.)
DISPOSITION
The orders of the juvenile court denying appellant’s petition for modification and terminating appellant’s parental rights are affirmed.
We concur: DAVIS, Acting P.J., RAYE, J.