In re Daniella C.

Filed 2/3/10 In re Daniella C. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEALS from orders of the Superior Court of Los Angeles County, Stephen Marpet, Juvenile Court Referee. Affirmed.

Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant Daniel C.

Andre F. F. Toscano, under appointment by the Court of Appeal, for Defendant and Appellant Justine H.

James M. Owens, Assistant County Counsel, and Byron G. Shibata, Senior Associate County Counsel, for Plaintiff and Respondent.

__________________________

INTRODUCTION

Defendants Daniel C. (Father) and Justine H. (Mother) appeal from orders summarily denying their Welfare and Institutions Code section 388[1] petitions. Mother also appeals from the order under section 366.26 terminating her parental rights. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Daniella C.[2] and Justin C. came to the attention of the Department of Children and Family Services (DCFS) through an emergency response referral to DCFS on January 23, 2007. The referral alleged that, a few days prior to the referral being made, Mother had given birth to Justin at Fathers home and, after being transported to a hospital, Mother tested positive for methamphetamine. Justin was born prematurely and tested positive for amphetamine and methamphetamine. Daniella was approximately 14 months old at the time.

On January 30, DCFS filed a dependency petition pursuant to section 300, subdivisions (b) and (j). Count b-1 alleged the circumstances of Justins birth, that Father knew, or should have known, of Mothers illicit drug use, and his inability to protect Justin placed the children at risk of harm. Counts b-2 and j-1 alleged that Mother had a four-year history of illicit drug abuse and was a then-current user of amphetamines, rendering her incapable of providing regular care for the children; the childrens older sibling, Raven H.,[3] had received permanent placement services due to Mothers illicit drug use; and Mothers illicit drug use endangered the childrens physical and emotional health and safety and created a detrimental home environment, placing the children at risk of physical and emotional harm and damage.

The DCFS detention report stated that a Childrens Social Worker (CSW) interviewed Mother and Father. According to Father, he had been the primary caretaker for Daniella, he could protect her from Mother and he wanted to care for her. Father denied seeing Mother use or possess illicit drugs. Mother initially denied using any illicit drugs during her pregnancy with Justin. The CSWs assessment also indicated suspected domestic violence during the past year.

Mother admitted that, in the prior dependency proceedings, Raven was removed from her custody due to her substance abuse problems. At birth, Raven tested positive for drugs that Mother was abusingamphetamine and methamphetamine. At that time, Mother allegedly obtained illicit drugs from Father, and Father admitted using marijuana and engaging in domestic violence. Since 2002, Mother had enrolled in a number of in-patient programs for substance abuse, but she had not been able to resolve her drug problems.

At the January 30 detention hearing, the juvenile court ordered the children to be detained after finding a prima facie case for detaining them under section 300, subdivisions (b) and (j). The court found Father to be the presumed father of both children.

The court ordered DCFS to provide the children and the parents with family reunification services and to provide the parents with referrals for parenting, drug counseling and weekly random drug testing, individual counseling and domestic violence counseling. The court granted the parents monitored visits at least twice a week. Prior to the detention hearing, Father began regular drug and alcohol testing, and Mother entered a six-month residential treatment program for substance abuse.

On February 7, the court ordered continued detention for the children and directed DCFS to investigate the possibility of placement with certain relatives. On February 12, Daniella was placed in an adoptive foster home. Justin remained hospitalized.

A criminal background search for Father revealed a history of multiple arrests, but only one in the past decade, which did not result in a conviction. Father denied knowledge of Mothers drug use during her pregnancy with Justin, but he also admitted to making efforts to prevent her from using drugs. Contrary to her prior statement, Mother now admitted using drugs during the pregnancy. She said that Father had no knowledge of her drug use because she tried to hide her drug use from other people.

For the jurisdiction/disposition hearing, DCFS reported that Justin was now placed with Daniella in the same prospective adoptive home. Daniella appeared to be bonded with her foster family, calling the foster parents momma and dada and waiting every day for her foster father to return from work.

For the month of February, Father had five monitored visits with the children. Mother had three visits, all of which were concurrent with Fathers visits. Mothers treatment program was initially not supportive of Mother leaving the facility for visits. By March, Father was working weekdays and unable to take a day off work each week for visitation.

At the June 18 hearing, the juvenile court approved a mediated agreement between Mother and Father, and sustained counts b-1, b-2 and j-1 of the amended section 300 petition[4] pursuant to In re Malinda S.[5] The court declared Daniella and Justin to be dependent children of the court and ordered them removed from their parents custody and suitably placed. The court ordered DCFS to provide family reunification services to the parents.

The juvenile court noted that Father had tested negative for drugs for the past five months and ordered him to continue weekly random drug testing. The court also acknowledged that Father had completed a parenting education program and directed him to continue to participate in parenting education and individual counseling, including for codependency. The court observed that Justin was medically fragile[6] and ordered DCFS to provide referrals to educate Father about how to care for him so that we can ultimately look to placing Justin with [Father] if [Mother] isnt ready yet . . . .

The court directed Mother to continue with the residential drug rehabilitation program and submit to weekly random drug testing with the knowledge that failure to test or a positive test would likely result in termination of her family reunification services. The court also ordered Mother to complete a parenting class and participate in individual counseling to address child endangerment and other case issues, in addition to the individual counseling provided as part of the drug rehabilitation program.

The court granted Father monitored two-hour visits twice a week, with an additional weekly four-hour unmonitored visit with Daniella, to be liberalized at the discretion of DCFS. For Mother, the court ordered monitored visits, with DCFS to have discretion to liberalize visitation consistent with Mothers progress in her program.

For the July 30 progress hearing, DCFS reported that Mother completed her residential drug rehabilitation program, as well as 25 hours of parenting education incorporated in the program. Mother and Father were drug tested as ordered, with negative results.

Mother and Father were visiting the children, but on an irregular basis. Mother and Father lived in separate residences in the San Fernando Valley area. The children resided in Palmdale, and monitored visits were held at a foster agency in Palmdale. Mother explained that she sometimes lost her ride. The visitation monitor reported that Father had a pattern of requesting visits with less than the 24-hour notice specified in visitation policies and also of confirming, then cancelling visits within a few hours.

In its September 26 status report for the section 366.21, subdivision (e), hearing, DCFS reported Mother and Father were drug testing and participating in programs and counseling as ordered, with no significant instances of noncompliance. The parents were visiting the children regularly. Father consistently picked up Daniella for their weekly four-hour unmonitored visit. DCFS had provided Mother with a bus pass and offered to reimburse her for Metrolink travel.

Father appeared not to know how to care for Justin, on one occasion saying that he felt overwhelmed. Father attended an August medical examination of Justin and presented a report of the examination. The report indicated that most of Justins medical problems had been resolved. Father was employed and had moved into his own apartment. DCFS recommended six more months of family reunification services for both parents.

At the September 26 hearing, the juvenile court ordered family reunification services to continue and reduced the frequency of Fathers drug testing to twice a month. The court liberalized visitation by granting Father and Mother unmonitored day visits with the children in a public setting, limited to twice weekly as to Justin, with no limitation as to Daniella.

In its addendum report dated November 9, DCFS reported that Mother and Father had substantially complied with drug testing requirements and their court-ordered counseling. Father and Mother had been visiting with the children, primarily on weekends. DCFS relayed the foster mothers reports and concerns about the condition of the children when the parents returned them after a visit (such as soiled diapers and smell of cigarette smoke, although the parents had been asked not to smoke around the children, especially Justin, for health reasons). Each child was evaluated by the Regional Center as developmentally delayed in some area and was receiving related in-home services.

DCFS reported concerns about the parents ability to provide adequate care for the children, in that the parents were not demonstrating the necessary skills to parent. The concerns were based upon the soiled condition in which the children were returned to the foster mother after unmonitored visits. The parents had not demonstrated an ability to schedule and keep appointments for visitation on a timely basis. The foster mother reported that on one occasion when Father returned the children, he appeared to be under the influence of alcohol. Both Father and Mother denied he had been drinking. DCFS also noted Mothers failure in 2004 to obtain necessary medical care for Raven, as reason for concern about the parents abilities to provide for the childrens well-being and safety.

Regarding the suitability of Fathers home for possible return of the children to his custody, DCFS found Fathers apartment was neat, clean and furnished appropriately with beds for the children. Father had already arranged and put down deposits for child care.

At the November hearing, the juvenile court continued the previous orders, with the admonishment that the parents needed to call the foster parents 24 hours in advance to schedule a visit. The court continued the matter in order for DCFS to have the foster mother present to testify as to any discrepancies in the parents visits. The court ordered DCFS to assess Mothers home and further assess Fathers home as to whether overnight unmonitored visits should be allowed.

On November 20, the juvenile court resumed the hearing and received stipulated testimony as to what the foster mother would say if called to the witness stand. The testimony is summarized as follows: The parents do not arrive on time and change the schedule at the last minute. When they return, the children smell like smoke. Daniella has returned with dirty diapers and dirty clothes. Justin requires a great deal of attention because of his medical condition, and he has fainted three times in the past three months. During October and November, Mother had seven visits and Father had five visits; the foster mother thought she smelled alcohol on Fathers breath when he returned the children after a visit.

Noting DCFSs strong objection, the court nonetheless liberalized visitation by granting overnight unmonitored visits for Father and Mother and a Thanksgiving Day visit with both parents present at Mothers sober living home. The court ordered the parents not to smoke around the children.

On December 17, the juvenile court continued its order granting Father and Mother weekend overnight visits, each parent on an alternate weekend, and granted extended holiday visits where the parents could visit together with the children on one day and then have separate visits with the children from Christmas Eve to January 3, 2008. The court acknowledged that Father had already arranged some babysitting and that the parents seem to be taking good care of the children. Fathers therapist confirmed Father had completed therapy, and that details were in the therapists written report delivered to DCFS a few days earlier.

In connection with a January 3, 2008 hearing, DCFS provided an arrest report for Father for driving under the influence of alcohol (DUI) on December 8, 2007. The juvenile court ordered that Fathers visits must be monitored, Mother could not be the monitor, and Father could no longer transport the children. The court continued its order for Mothers overnight visitation every other weekend.

On January 16, 2008, there was a further hearing pursuant to section 366.21, subdivision (e). The lab results of Fathers blood alcohol level showed a level over the legal limit at the time of his December DUI arrest. The court ordered Father to undergo weekly random alcohol testing and cautioned that if he tested positive, he would be required to enter a substance abuse rehabilitation program. Visitation was to remain monitored for Father and unmonitored overnight visits every other weekend for Mother. The court found that Father was in partial compliance with the case plan.

On July 24, DCFS filed an ex parte application for Mothers visitation to be changed from unmonitored to monitored and for family reunification services to be terminated. DCFS explained that it had recently received a child abuse referral and, in an effort to investigate, its staff had been unable to locate Mother at her previous address. Additionally, Mother had failed to attend two Team Decision Meetings (TDMs) scheduled to determine Mothers current condition and residence location and to establish a safety plan for the children during unmonitored visits.

DCFS also filed a report for the status review hearing to be held on the same date. DCFS reported that, on July 18, it received a Child Abuse Hotline referral regarding Mother. The emergency response CSW was unable to locate Mother, in that she was not at the sober living home where she had been residing and had not given DCFS notice of any new address. DCFS canceled Mothers visit for the weekend of July 19, 2008.

DCFS reported that Mother had been residing at a sober living home, was employed, and had completed her drug program. Mother reported to DCFS that she has been attending a relapse prevention program, Narcotics Anonymous meetings and, until a few weeks ago, her individual counseling program. She also stated that she had completed an F-rate class to help her care for Justin, had found a licensed childcare person for use if the children were returned to her, and believed she could get a house to rent through her uncle. Mother added that she wanted to go to Oregon to stay with her mother and her two other children, eventually getting a place of her own.

According to DCFS, in May 2008, Mother reported that she had been in a single-vehicle accident because she was using her cell phone. Although DCFS requested Mother to provide a copy of the police report, she instead provided an illegible copy of the fire departments report of its response to the accident.

According to DCFS, the children had been in their current placement since June 2007. Justin had developed severe asthma and required daily at-home breathing treatments. The children were continuing to receive Regional Center services.

Mother participated regularly in unmonitored weekend visitation with the children. The foster mother reported concerns about the children returning sick or dirty, smelling of smoke after some visits. The foster mother related occasions when Mother was attentive to Daniella but showed little interest in Justin. Mother maintained that she did not favor Daniella or ignore Justin. She denied smoking in the past two months and stated that other people at the sober living home were smokers. DCFS attempted to hold a TDM on July 11, and again on July 17, with Mother to determine a plan for the children, but shortly before each TDM, Mother left a telephone message that she was unable to attend due to work or lack of transportation.

As to Father, DCFS reported that, since the January 16 hearing, he had failed to appear for drug testing. Subsequent to the hearing, Father made no contact with DCFS or his children until just prior to having a monitored visit with the children in May. In June, Father told the CSW that he was waiting to enter a live-in drug program, but he never followed up to identify which program he entered. Father had previously indicated that he would not be visiting the children during the next six months and then obtained referrals for drug programs from DCFS. He reported that he was living with someone else but did not provide a new address. In addition, Father did not provide any verification that he had continued individual counseling. DCFS received reports that Father completed eight parenting education sessions as of April but did not receive verification that he completed the program.

At the July 24 18-month review hearing ( 366.22), the juvenile court found Father was not in compliance with his case plan and terminated his family reunification services. Father did not appear at the hearing, but he was represented by counsel. Mother requested a contested hearing. The contested hearing was initially set for August 20, but at that time, it was continued to September 16, and again to October 29.

For the August 20 hearing, DCFS reported receiving documentation that Mother missed a drug test on July 18 and tested positive on July 22 for amphetamine/ methamphetamine. Thereafter, Mother had two negative drug tests and missed a third test in August. Mother did not provide any additional documentation regarding participation in any court ordered services. She did not return forms to DCFS authorizing the sober living homes where she had resided to disclose information regarding the reasons she moved out of the homes.

Mother had one monitored two-hour visit, scheduled a second visit and then called on the scheduled date to reschedule for a third date, but she did not come for the visit on the third date. DCFS acknowledged that all monitored visits for the parents had been at a foster agencys office in Palmdale and the foster mother had never monitored visits.

For the October 29 hearing, DCFS reported that Mother missed six drug tests in the months of September and October. The manager of the sober living facility where Mother was living in September reported that Mother had been asked to leave the home because she refused to comply with a random drug test on September 22. Mother said she left because of problems with one of the other residents and that she was going to work for a relative.

DCFS reported further that, in the past thirty days, Mother completed one visit and arrived too late for another. She missed all of the other visits she had scheduled, each time providing a different reason for not making the visit. In response to Mothers request for temporary identification for drug testing and the need to have Mother sign a delayed birth certificate for Justin,[7] DCFS scheduled an appointment at a time Mother had said she would be available. When Mother did not come to the appointment, there began a series of telephone calls by the CSW attempting to reach Mother for scheduling a new time and voicemail responses from Mother with various excuses for missing the subsequently scheduled appointments. Mother ultimately stopped responding.

According to DCFS, the children remained in the same placement and were flourishing. Their foster mother was willing to adopt them. DCFS recommended termination of Mothers family reunification services and development of a permanent plan of adoption.

On October 29, at the contested section 366.22 18-month review hearing, Mother appeared and Father did not appear but was represented by counsel. Mother withdrew her request for a contested hearing. She requested that the court issue an order for the children to be placed with their maternal grandparents in Oregon with Raven. The court denied the request on the basis that the children had been placed for a long time with a foster family that was ready, willing and able to adopt them. The court found that Mother had failed to comply with her case plan and terminated Mothers family reunification services. The court set a section 366.26 permanency planning hearing for February 26, 2009. The court informed Mother that adoption was the most desirable permanent plan for the children.

In its report for the permanency planning hearing, DCFS included portions of the home study for the prospective adoptive parents as approved July 14, 2008, in which it was noted that the children had been placed in the home since July 20, 2007. Mother continued to visit the children, with four visits in November, one visit in December, one visit in January 2009, and one visit in February 2009, prior to preparation of the DCFS report. Two visits scheduled in January were cancelledthe first, by DCFS because of a holiday and the second due to the monitor being on vacation. Mother had entered a three-month outpatient drug rehabilitation program in November 2008. DCFS recommended continuing the proceedings to allow for receipt of Justins delayed registration of birth.

On June 1, 2009, Mother filed a section 388[8] petition requesting that the court change its October 29, 2008 order terminating Mothers reunification services, and replacing the prior order with an order returning the children to Mother or, in the alternative, reinstating Mothers reunification services with unmonitored visits, gradually increasing the length of the visits until the children were returned to Mother. The changed circumstances asserted by Mother were that, after termination of her family reunification services in October, she re-enrolled in her drug rehabilitation and counseling programs, had identified the reasons for her relapse and what was needed to prevent it, substantially complied with all her programs, regularly attended her 12 step program meetings, continued random drug testing, separated from Father, and remained drug free. Mother attached several supporting documents from programs and therapists for the period prior to, as well as following, the termination of her family reunification services.

Father also filed a section 388 petition to change the courts July 24, 2008 order terminating his family reunification services, replacing the prior order with an order returning the children to Father or, in the alternative, reinstating Fathers reunification services with unmonitored visits, gradually increasing the length of the visits until the children were returned to Father. The changes in circumstances asserted by Father were that, since the time his family reunification services were terminated, he had completed a first offender DUI program which included counseling, drug and alcohol education, and self-help, and had regularly attended Alcoholics Anonymous (AA) meetings each week. Father provided a Notice of Completion from the program and the Department of Motor Vehicles, showing enrollment in April 2008 and completion in March 2009.

On June 15, 2009, DCFS reported that Father missed his scheduled visit with the children on May 5 but rescheduled and attended another visit on May 12. DCFS also reported that Mother had no visits with the children after April 1 and had not called to schedule any further visits.

Another report filed with the court confirmed that the home study for the prospective adoptive parents had been completed and approved as of July 14, 2008, and that the prospective adoptive parents were committed to providing the children with a permanent home. The report included a progress letter from the rehabilitation program in which Mother enrolled after the court terminated her family reunification services. The letter stated that Mother had made tremendous progress, showed commitment to her recovery, and was to complete the program in June 2009.

At the June 15 hearing, the court summarily denied Mothers and Fathers section 388 petitions, finding that the petitions did not show a change of circumstances and that it was not in the childrens best interests to grant a hearing as to either petition. The court found that Mother had had a substance abuse problem since 2000, making it extremely difficult for her to keep children in her home. The court ruled that there was no section 366.26 exception to termination, in that the visitation records showed that the visits never reached the level of either Mother or Father being a parent to the children. The court then found by clear and convincing evidence that the children would likely be adopted, ordered that the parental rights of Mother and Father be terminated, and transferred the children into the custody of DCFS for adoption planning and placement.

DISCUSSION

Father and Mother contend the juvenile court abused its discretion by summarily denying their section 388 petitions, in that they made the required prima facie showing of a change of circumstances. Mother also claims that substantial evidence did not support the juvenile courts ruling that the section 366.26, subdivision (c)(1)(B)(i), exception to termination of parental rights did not apply. For the reasons set forth below, we disagree.

A. Section 388 Petitions

Pursuant to section 388, subdivision (a), after a juvenile court has declared a minor to be a dependent child of the court, the childs parent may petition the juvenile court to change, modify, or set aside any prior order of the court or to terminate jurisdiction of the court over the parents child, based upon grounds of change of circumstance or new evidence. (See, e.g., In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Marilyn H. (1993) 5 Cal.4th 295, 308-309.) We review a juvenile courts decision on a section 388 petition for abuse of discretion. (In re Stephanie M., supra, at p. 318.) That is, we may not disturb the courts decision unless it was arbitrary, capricious, or [a] patently absurd determination. (Ibid.)

In order to trigger a hearing on the section 388 petition, the parent has the burden of making a prima facie showing of both (1) a change of circumstances or new evidence and (2) that the proposed modification would be in the best interests of the child. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250; In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) The juvenile court is not required to hold a hearing on the parents petition if the allegations of the petition, liberally construed, do not show changed circumstances such that the childs best interests would be promoted by the proposed modification. (In re Angel B. (2002) 97 Cal.App.4th 454, 461; In re Anthony W., supra, at p. 250.)

The changed circumstances asserted by Father were that he had completed parenting education, individual counseling, and, subsequent to termination of his family reunification services, a DUI program which included counseling, substance abuse education, and self-help. He was regularly attending AA meetings, was in contact with his sponsor, and had resumed visiting with his children. The alleged changed circumstances paralleled activities which Father failed to perform in his original reunification plan. Father became noncompliant with his original plan when he was arrested for DUI and tested positive for blood alcohol levels higher than allowed by law. Although the only change ordered by the court at that time was to return visitation to monitored status, Father immediately ceased complying with any part of his plan and stopped visiting with the children. There ensued a six-month period during which Father could have renewed his compliance efforts. He did not do so, and the court terminated his family reunification services at the 18-month review hearing.

The change in circumstances asserted by Mother was that, after her 2008 relapse, she had re-enrolled in treatment programs to be completed by the end of June, substantially complied with all her programs, continued random drug testing with negative results for drugs, separated from Father, and remained drug free. These activities were a continuation of the activities required by Mothers original reunification plan. The court terminated family reunification services for Mother as the result of Mothers noncompliance with her plan by relapsing into the same type of drug abuse that gave rise to the dependency proceedings for the children and had been the basis for terminating her parental rights as to Raven in prior proceedings.

The changed circumstances claimed by Father as well as Mother showed only renewed efforts to comply with the initially required, but subsequently terminated, family reunification plan for each of them. Mother had already been provided family reunification services for 21 months prior to termination. She had a history of drug abuse since 2000 resulting in termination of her parental rights as to Raven, with a relapse during her pregnancy with Justin, and an additional relapse in 2008 during the course of her family reunification services. Father had been given an 18-month period in which to comply with his plan but ceased efforts to comply six months prior to the end of the period. Neither Father nor Mother presented evidence that resolved or indicated imminent resolution of the uncertainty about his or her ability to provide a permanent safe, stable home for the children. ( 300; see In re Kimberly F., supra, 56 Cal.App.4th at p. 531 and fn. 9; In re Anthony W., supra, 87 Cal.App.4th at p. 251.)

The juvenile court was faced with weighing this uncertainty against the virtual certainty of immediate adoption of the children upon termination of parental rights. At the time the parents filed their section 388 petitions, evidence showed that the children could have a permanent, stable home with the prospective adoptive parents as soon as parental rights were terminated, freeing them for adoption. Adoption would allow the children to remain in the home of the prospective adoptive parents, where they had already lived for 24 months. The prospective adoptive parents had been caretakers for Justin almost from birth and for Daniella since she was 14 months old.

A key factor in determining whether a proposed modification would be in the best interests of the child is the extent to which it would assure stability and continuity of a home for the child. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) The legislative objective of the dependency statutory scheme is to provide a permanent, stable home for a child who cannot be returned home within a prescribed period of time, generally not to exceed 18 months after the child was originally removed from the parents home. (Ibid.; In re Marilyn H., supra, 5 Cal.4th at pp. 307, 310.) By the time of the hearings on the parents section 388 petitions, 29 months had passed after initial removal, much longer than the 18-month target for the children to be in a stable, permanent home.

The past conduct of Mother as well as Father indicated there was no guarantee that Mother or Father would successfully complete family reunification services if they were reinstated. In either case, the opportunity for the children to have a permanent adoptive home could be lost as time passed while the parents, or either of them, were given further opportunity to demonstrate the ability to provide a permanent safe, stable home for the children. As the Supreme Court so aptly observed, [c]hildhood does not wait for the parent to become adequate. (In re Marilyn H., supra, 5 Cal.4th at p. 310.)

We conclude that the juvenile court had a reasonable basis for finding that it would not be in the childrens best interests to delay their placement in a permanent, stable home in order for Mother or Father to have yet another opportunity to show he or she was able to provide such a home for Daniella and Justin. (In re Stephanie M., supra, 7 Cal.4th at p. 317; In re Marilyn H., supra, 5 Cal.4th at p. 307.) Thus, the court did not abuse its discretion in denying a hearing on the section 388 petitions. (In re Angel B., supra, 97 Cal.App.4th at p. 461; In re Anthony W., supra, 87 Cal.App.4th at p. 250.)

B. Parental Relationship Exception

Mother contends that the juvenile court erred in terminating her parental rights, in that substantial evidence does not support the courts finding there was no parental relationship exception to termination. Section 366.26, subdivision (c)(1),[9] provides that, if a juvenile court finds that it is likely a child will be adopted, the court must terminate parental rights and order the child placed for adoption unless one of the specified exceptions applies. The legislative intent expressed in section 366.26, subdivision (c), is that adoption should be ordered unless exceptional circumstances exist, [and pursuant to subdivision (c)(1)(B)(i),] one of those exceptional circumstances [is] the existence of such a strong and beneficial parent-child relationship that terminating parental rights would be detrimental to the child and outweighs the childs need for a stable and permanent home that would come with adoption. (In re Casey D. (1999) 70 Cal.App.4th 38, 51.)

On appeal, if we determine that the juvenile courts findings that the exception did not apply and that termination of Mothers parental rights is warranted are supported by substantial evidence, we must affirm the findings and, as a result, the courts order. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) Under the substantial evidence standard, the evidence is considered 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. (Ibid.)

Noting that section 366.26 does not define the type of parent-child relationship which would trigger the application of the exception, the court in In re Brandon C. (1999) 71 Cal.App.4th 1530 stated that [c]ourts have required more than just frequent and loving contact to establish the requisite benefit for this exception. (Id. at p. 1534.) Rather, [i]n the context of the dependency scheme prescribed by the Legislature, we interpret the benefit from continuing the [parent/child] relationship exception to mean the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord, In re Casey D., supra, 70 Cal.App.4th at p. 51.) The relationship required is a continuing parental relationship; not one . . . when a parent has frequent contact with but does not stand in a parental role to the child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.) The principle applies even when the natural parent has maintained a relationship that may be beneficial to some degree. (In re Angel B., supra, 97 Cal.App.4th at p. 466.)

Mother contends that she has developed a strong parental bond with Daniella and Justin through having been Daniellas primary caretaker for the first 14 months of her life prior to her detention, her attention to Justin during his hospitalization after birth, and maintaining significant parental contact with the children through her history of visitation with them during the two and a half years of the dependency proceedings, including nearly one year of unmonitored visits, most of which were weekend overnight visits. She asserts that this satisfied her burden to establish the two-pronged exception to termination of parental rights set forth in section 366.26, subdivision (c)(1)(B)(i): The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship, and the nature of their relationship is such that it constitutes a compelling reason for determining that termination would be detrimental to the child. (Ibid.)

Mother emphasizes evidence that supports a finding that the first prong is satisfied, in that she has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(B)(i).) Even if we assume she satisfied the first prong, more is required to establish that the exception applies. To satisfy the compelling reason required by the second prong (ibid.), she must show that her relationship with the children is one that promotes the well-being of the child[ren] to such a degree as to outweigh the well-being the child[ren] would gain in a permanent home with new, adoptive parents. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

As Mother explains, she has made significant efforts to overcome her substance abuse problemsa six-month residential rehabilitation program and, on her own initiative after her relapse in 2008, re-enrollment in a rehabilitation program, as well as regular attendance at Narcotics Anonymous meetings. A letter from the latter program was included in the DCFS report for the June 15, 2009 hearing. According to the letter, Mother had great love for her children, had made tremendous progress, was committed to recovery, had identified the reasons for her relapse and measures to prevent any future relapse, and would complete the program a few days after the hearing. Mother maintains that terminating her parental rights as to Daniella and Justin would result in great detriment to them, in that they would lose their mother who turned her life around because of them.

The evidence before the juvenile court was that Mother had a history of substance abuse which had resulted in terminating her parental rights to Raven in 2004, a relapse resulting in a positive toxicology screen for the same illicit substance for Justin at his birth in 2007, and detention of Daniella and Justin, followed by yet another relapse in 2008 after completing a six-month residential rehabilitation program. The court was required to weigh certainty of a permanent, safe, stable life in the adoptive home against the uncertainty as to whether Mother would be able to stay clean and sober, without again relapsing, and regain custody of the children, as well as the uncertainty that the well-being of Daniella and Justin would again be put at risk and their young lives disrupted by another detention if Mother were to again relapse into substance abuse. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

Although Mother may have made a showing of a significant parental relationship with the children, there was also evidence before the court of the parental relationship of the children with the prospective adoptive parents. They had been the primary caretakers for Daniella from the time she was little more than 14 months old and Justin from shortly after his birth. At the time of the June 2009 hearing, Daniella was almost four years old and Justin was about two and a half years old. There was evidence that the children had flourished in their care and had been provided with the necessities of life, including the special medical care Justin needed, as well as social and emotional support. We conclude that substantial evidence supports the juvenile courts finding that the beneficial parental relationship exception did not apply and, accordingly, we must affirm the courts order terminating Mothers parental rights as to the children. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)

DISPOSITION

The orders are affirmed.

JACKSON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

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[1] All statutory references hereafter are to the Welfare and Institutions Code.

[2] In the record, the childs name is also sometimes spelled Daniellia.

[3] In 2005, a juvenile court ordered the parental rights of Mother and Father terminated as to Raven. She was adopted by her maternal grandparents in 2006 and is not a party in the instant appeal.

[4] The juvenile court dismissed counts b-3 and j-2 relating to Fathers alleged drug use.

[5]In re Malinda S. (1990) 51 Cal.3d 368.

[6] DCFS had previously reported that Justin had surgery for a bowel obstruction shortly after birth and had been evaluated in April 2007 with a heart murmur which would require re-evaluation after six months.

[7] According to DCFS, no birth certificate for Justin had been issued at the time of his birth, in that he was born at home, not in a hospital. In order to have a legally sufficient record of his birth, it was necessary to obtain a certificate of delayed birth from the issuing agency.

[8] Section 388, subdivision (a), provides: Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of the court previously made or to terminate the jurisdiction of the court.

[9] Section 366.26, subdivision (c)(1), provides: If the court determines, based on . . . relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. . . . Under these circumstances, the court shall terminate parental rights unless either of the following applies: [] . . . [] (B) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.