Opinion
NOT TO BE PUBLISHED
Super. Ct. No. PDP070008
BLEASE, Acting P. J.
Janette F. (appellant), the mother of Lorna H. (the minor), appeals from the order of the juvenile court terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395; further undesignated statutory references are to the Welfare and Institutions Code.) Appellant contends the juvenile court abused its discretion in denying her petition for modification (§ 388). Appellant also claims the court committed reversible error in terminating her parental rights because substantial evidence supported application of a statutory exception to adoption (former § 366.26, subd. (c)(1)(A).) Disagreeing with each of those claims, we affirm.
The father of the minor, J.H., also filed an appeal. However, on February 14, 2008, this court dismissed his appeal, following the father’s failure to file an opening brief.
FACTUAL AND PROCEDURAL BACKGROUND
On March 7, 2007, El Dorado County Department of Human Services (DHS) filed an amended juvenile dependency petition pursuant to section 300 on behalf of the two-month-old minor. That petition alleged appellant had a history of substance abuse, domestic violence, and mental health difficulties that rendered her incapable of providing adequate care for the minor. The juvenile court sustained that petition, adjudged the minor a dependent child, ordered the minor removed from parental custody, and denied appellant reunification services.
The juvenile court granted appellant twice weekly supervised visitation. Appellant had been visiting the minor consistently, and those visits had gone well. The minor interacted with appellant in a positive manner and demonstrated an appropriate attachment to appellant.
On September 14, 2007, appellant filed a petition for modification, seeking reunification services. According to appellant, she was receiving services on her own initiative, and had no positive tests for illegal substances. Moreover, appellant alleged, her visits with the minor had gone well, and they had “developed a strong bond that . . . should not be broken.”
DHS did not believe appellant had established a change of circumstances sufficient to justify a modification of previous juvenile court orders. According to DHS, appellant had missed numerous drug tests and on other occasions tested positive for alcohol tests and on other occasions tested positive for alcohol and marijuana. Moreover, DHS noted, the minor had lived most of her life with a foster family, with whom she was bonded. That family was committed to adopting the minor.
At the October 2007 hearing on the petition for modification, several witnesses testified, including appellant. Appellant told the juvenile court she was seeing a therapist for her mental health difficulties and took medication. Appellant’s last use of illegal substances was in late May 2007. However, in late June and early September 2007, appellant used alcohol.
Appellant testified she believed the bond she shared with the minor was “incredible.” According to appellant, the minor called her “mom.” Appellant also told the juvenile court she had ample support from family members to assist her.
After hearing argument on the petition for modification, the juvenile court denied the petition. In doing so, the court stated in part; “. . . I’m not convinced that [appellant] has addressed the issues that have -- satisfactorily addressed the issues which caused this petition to be filed in the first place. There’s a long and extensive history of this case of mental illness and a long and extensive history of drug usage. I would indicate that in terms of the if it’s miss -- again, these are -- both of these parents have a history of drug addiction and alcohol abuse. [¶] [Appellant] indicated that just a couple weeks ago they were drinking alcohol when he was over at the house and that this shows that certainly alcohol is continuing to be used. That can be of particular concern. It wasn’t raised by any of the attorneys, which surprises me, but mixing Xanax with alcohol has a synergistic effect. At least that’s what the Court has previously been told in previous hearings. That’s probably a relatively dangerous thing, but the bottom line issue is it appears that the mother is taking great steps to try to develop self-sufficiency, which she’s to be commended for, and has made significant efforts in that regard, but that really isn’t what the case was about. The case was -- the case is about, you know, there’s supposed to be a demonstrating of substantial change of circumstances to conclude that the mother is aggressively addressing her mental health issues and her substance abuse issues. I don’t believe that that evidence was shown today. [¶] And that’s not meant disrespectfully, ma’am, but your demeanor in the courtroom today has caused me some concern that it may be that you need another assessment by whoever is working with you. [¶] In terms of also addressing the mental health issues, it was not wasted on the Court that the -- there was no -- I shouldn’t say no -- there was -- other than the sponsor, the work sponsor, there was very little evidence that the substance abuse issues were addressed. I didn’t find that testimony particularly helpful in the court. It seemed to me that [appellant’s] sponsor has a very different understanding of the 12-step program than the Court’s. Since I’m the drug dependency court bench officer, I do have some significant exposure to the 12-step program and also to the disease of alcoholism and the disease of addiction, as well as mental health issues. I don’t feel that there was a satisfactory showing that there has been a proper addressing of the substance abuse again. The parties at this late juncture still are indicating they’re consuming alcohol. [¶] As to the mental health issues, it bothers -- I shouldn’t say bothers the Court. It was disappointing to the Court that in this particular case the therapist of [appellant] apparently declined to testify that she felt that she was not in a position to say anything good or bad, although [appellant] indicated that she was on vacation, it was represented . . . she simply did not feel comfortable testifying in this matter. So I have no evidence to support the -- this Court’s thinking that the mental health issues have been adequately addressed. [¶] I would like to emphasis [sic] to the parents that contrary to any assumption you may have about juvenile court bench officers, the law is very clear in what I can and cannot do. It is not shown by -- shown there’s a substantial change of circumstances. It’s in the best interest of the child, I’m compelled by law to deny the 388 along the same lines as the father. [¶] In terms of the best interest of the child, again, I did not receive any evidence that would cause me to believe that it is in the best interest of this child to stop this permanent placement hearing. . . . [The evidence indicates] that [appellant] on many occasions has been inappropriate in the presence of the child, has said inappropriate things that would clearly alarm any social worker or any person who has any limited understanding of the psychological and emotional impact of some of the comments or statements being made by [appellant]. Just the yelling and the screaming, a child this young is very much affected by this, so that was unfortunate as well. [¶] Again, this child has -- I’m required in taking a look at this and making a determination as to the best interest of the child. I’m required to consider the current placement of this child at this stage of the proceedings and why that is a significant factor. And I would indicate that that is unopposed, that this child has a very close and healthy bonded relationship with the current placement, the current foster placement, and I’m not convinced that there was any showing other than general statements that the mother has a close and bonded relationship with this small child. [¶] There is . . . there was a showing of affection by both parents, and that is clearly noted by this Court. But more than that, the Court is supposed to be looking at the undertaking of parental relationships or the undertaking of a more significant relationship with this child over and above playing with the child or engaging the child in play. And I understand this child is very young, but again, that’s the standard that I’m required to weigh this case within the context of how I’m supposed to weigh this case.”
Objecting to the proposed termination of appellant’s parental rights, counsel for appellant argued appellant had established a statutory exception to adoption, based on her regular contact with the minor and the benefit the minor would gain from continuing their relationship. The juvenile court rejected that claim, stating in part: “ . . . I agree that the parental relationship exception as defined primarily by case law does not apply in this case. There has been -- there has not been a showing of parental relationship that would cause this Court to take exception to the termination. And, therefore, I’m required to proceed with this permanent placement, and I agree with counsel the Autumn H., I incorporate by reference the analysis of Autumn H., 27 Cal.App.4th; Casey D., 70 Cal.App.4th 3rd 388. [¶] And I will reiterate what I said before, that there is certainly a showing of a relationship that the parents have with this child. I’m not satisfied as to parental relationship or that it is to such a degree that this exception would apply.”
At the conclusion of the hearing, the juvenile court found it likely the minor would be adopted and terminated appellant’s parental rights.
DISCUSSION
I
Appellant contends the juvenile court abused its discretion in denying her petition for modification because she established changed circumstances and new evidence demonstrating reunification was in the best interests of 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 the difficulties underlying the dependency petition. However, doubtless out of its concern for the minor’s needs, the court did not find a sufficient change of circumstances and suggested the best interests of the minor would be promoted by proceeding to the selection of a permanent plan for the minor.
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. In the meantime, it was likely, as the record suggests, that the minor would continue to develop and attach to her foster parents.
In her petition, appellant averred it was in the best interests of the minor to provide appellant with reunification services, in large part 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 fully develop appropriate parenting skills.
For example, during her testimony at the hearing on the petition, appellant discussed the on-going programs in which she was participating.
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 she should receive reunification services due to a significant bond existing with the minor. At the time of the hearing on the modification petition, the minor had been out of appellant’s custody for most of the minor’s life. 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. The focus of appellant’s brief appears to be on appellant, rather than on the minor. Finally, the record suggests the minor was much more attached to her prospective adoptive parents than to appellant.
Most importantly, in her petition appellant did not allege any facts that the minor’s needs for permanence and stability would be promoted by eventual return to a parent who DHS believed had not made significant improvement in her situation.
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 cite 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 minors, and the nature of the alleged changed circumstances, was before the court. Moreover, 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 minor’s best interests in deciding whether to grant the petition for modification. As we have seen, those interests consist of the minor’s need 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 adjusted well in her foster care placement. On the other hand, appellant was still working on the difficulties that had contributed to the dependency proceedings. On this record, it is not surprising the court suggested impliedly that the minor should not be forced to wait any longer.
It is true, as appellant notes in her brief, that she was not seeking the immediate return of the minor to her custody. All she wanted, appellant averred, was the “opportunity” to reunify with the minor. The difficulty with appellant’s scenario, as we have suggested, is that it is unfair to and not in the best interests of the minor for the minor to be delayed permanence for some unknown and indefinite period of time, with no certainty or even likelihood that appellant could progress beyond supervised visits with the minor.
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 Deijah T. (2000) 83 Cal.App.4th 666, 673-675.)
II
Appellant contends the juvenile court erred reversibly in terminating her parental rights because there was insufficient evidence to support the court’s decision not to apply a statutory exception to adoption based on a beneficial relationship existing between appellant and the minor. Noting evidence of regular contact, a significant parental relationship, and the existence of a parental role for her, appellant suggests the minor would suffer if her relationship with appellant was severed.
“‘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.]’ [Citation.] 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.” (Former § 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.)
Effective January 1, 2008, that provision has been renumbered as subdivision (c)(1)(B)(i). (Stats. 2007, chs. 565, § 4,; 583, § 28.5.)
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.)
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, 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 the minor 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., 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 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, also cited by appellant, 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 the minor, in the absence of which the exception does not apply.
Here, the issue was as follows: In light of the minor’s likely 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 the minor would not benefit from continuing a 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 appellant’s 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 her parental rights are affirmed.
We concur: NICHOLSON, J., HULL, J.