In re Luis A.

Filed 2/20/08 In re Luis A. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from orders of the Superior Court of Los Angeles County. Margaret S. Henry, Judge. Affirmed.

Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.

______________________________

Lourdes C., the mother of minors Luis and Kimberly, appeals from the order denying her Welfare and Institutions Code section[1]388 petition as to both children and the order terminating her parental rights as to Kimberly. Appellant contends that the juvenile court erred in denying her section 388 petition as she established changed circumstances and that the court also erred in not finding applicable the section 366.26, subdivision (c)(1)(A) exception to the termination of parental rights. We affirm.

FACTUAL AND PROCEDURAL SYNOPSIS

I. Prior History

There had been a significant number of child abuse hotline referrals regarding this family dating back to 1995 when Luis was born. There were 10 referrals regarding Luis through October 2001; in 1998 and 2001, there were substantiated referrals of general neglect of Luis by appellant; and eight more referrals, three of which were substantiated, between May 2004 and March 2005.

Appellant accepted voluntary family maintenance (VFM) services from respondent Los Angeles County Department of Children and Family Services (Department) and signed a case plan on June 18, 2004.[2] Appellant agreed to participate in parenting education and counseling, but by late September 2004, she had not followed through with enrolling in any programs. Appellant declined an offer for housing assistance because of an unarticulated reason related to her boyfriend Cesar. The Department provided additional housing referrals in October and November as well as referrals for a therapist, homeless shelters and resources for food.

In mid-February 2005, appellant refused to sign the necessary paperwork to enable Luis to receive therapy at school. Appellant began parent education classes in March, attended once, and stopped going because she did not like the format of the class.

The Department referred the case for family preservation services in March, the case was accepted by the program, and appellant received referrals for housing, shelter, parenting classes, and counseling. The Department provided transportation assistance.

At the end of March, appellant refused to enroll Luis in an after-school program that would have helped with homework and provided activities. Luis was exhibiting more problematic behaviors, and he told a childrens social worker (CSW) that he was tired of appellants moving from place to place. Appellant allowed Luis to the live with a maternal aunt, and appellant accepted voluntary family reunification (VFR) services in April.

The Department provided appellant with more housing and shelter referrals in May and June. In June, a CSW and a family preservation worker drove appellant to the Union Station Foundation to help her enroll there. A counselor informed them that appellant had applied for the program one month earlier, but she left after being told she would have to put her Supplemental Security Income (SSI) into a savings account and use half of her food stamps. The counselor said appellant did not want to follow the program rules and the children were out of control.

The Department and the family preservation program provided appellant with more housing referrals in July. Appellant was admitted to the hospital in July for high blood pressure and diabetes.

II. Detention

The Department filed a section 300 petition on July 21, 2005. The petition alleged appellant had created a detrimental home environment for the children in that she led a transient lifestyle, lacked the resources and stability to provide adequate care and supervision, refused to accept numerous housing vouchers, failed to provide the children with adequate food on a consistent basis, and, on prior occasions, the children slept on the street and were found in a filthy condition with soiled clothes and poor hygiene. The petition alleged appellant entered a VFM agreement and VFR contract, but failed to cooperate with the agreement and contract and failed to provide the children with a stable home environment and complete counseling and parenting classes. Lastly, the petition alleged Luis was found wandering down a street late at night without adult supervision.

At the July hearing, the court detained Luis with maternal aunt Marie and Kimberly with maternal aunt Margaret and ordered appellant have monitored visits a minimum of three times a week. The court noted the Department had provided 12 months of voluntary services, and appellant had a history of not following through.

At the August hearing, the childrens attorney said the caretakers were concerned about Cesars behavior as he was following them and having relatives go to their houses and demand to see the children. The CSW had told Cesar to stay away from the children. Appellants counsel indicated she exhibited major mood swings and was low on medication.

In September, the Department reported appellant had been hospitalized from August 1 to September 3 and the hospital was providing appellant with free medications for asthma, diabetes, and a heart condition.

At the September 15 hearing, appellants attorney argued the petition focused on her unstable housing. Counsel for the Department and the children noted it was more appellants transient lifestyle, her refusal to accept and cooperate with services and her inability to provide appropriate care for the children. The childrens attorney indicated appellant visited regularly with Kimberly but not with Luis.

The court sustained the entire section 300 petition. The court found appellant was not capable of taking care of the children and was not able to follow through with things. The court ordered unmonitored visits only in the caretakers homes and the caretakers were not to leave during the visits.

In November, the Department reported appellant visited Kimberly regularly three days a week for one hour each day with no problems. Appellant had not seen Luis since September 15.

Although the Department had initiated a referral to a counseling agency, appellant missed her initial appointment because she was hospitalized and did not attend her second intake appointment for unknown reasons. A paternity test excluded Cesar as Kimberlys father.

The court removed the children from appellants custody and ordered family reunification services.

III. Review Hearings

In March 2006, the Department reported appellant claimed housing was her only problem. Appellant had completed a parenting class, but her instructor indicated appellant needed more classes. Appellant had failed to participate in individual counseling.

Appellant had visited Kimberly regularly on a weekly basis at a McDonalds restaurant. Even though the Department had informed appellant that Cesar was not allowed at the visits, he had continued to accompany her. Margaret, Kimberlys caretaker, reported that Kimberly asked Margaret to hold her when Kimberly saw appellant from a distance and Kimberly did not want appellant to pick her up. Appellant had visited Luis only three times.

Luiss behavior had improved dramatically and his school grades and citizenship were positive; he received math and writing intervention through an Individualized Education Plan (IEP).

At the hearing, the court indicated that Luis and Kimberly were not a sibling group. When appellant indicated she was having problems visiting Luis, the court responded she continued to bring Cesar to the visits and admonished her that Cesar had abused Luis, was not participating in any programs, and, as long as she remained with Cesar, the court would not return the children to her.

Appellants attorney stated she wanted the Department to assist appellant to obtain a mental health evaluation. Appellant admitted that she had missed another appointment to set up counseling. The court told appellant she was to participate in counseling even if it was not through the Department of Mental Health. The court noted the matter had come to it after the Department had worked with appellant for months and months.

In May, the Department reported that although appellant visited Kimberly regularly, she had not attended a visit with Luis at the end of March, she cancelled a visit scheduled for the first week in April because she claimed she did not have any money, she visited for one hour in mid-April, she cancelled a scheduled visit toward the end of April because she said she was sick, she visited for half an hour at the end of April, and she visited for one hour in early May. Appellant never stayed for the full two hour visit.

Appellant had refused a new set of referrals at the beginning of April claiming she had already scheduled a counseling appointment, but, at the end of April, appellant called the CSW to say she could not find a counseling agency. The CSW provided appellant with a new set of counseling referrals. Appellant told the CSW she had enrolled at the Chinatown Services Center and was scheduled to begin counseling.

At the hearing, the court found appellant was only in partial compliance with the court-ordered case plan. The court ordered additional reunification services.

In June, the Department reported appellant was enrolled in weekly individual counseling and was scheduled to begin therapy on May 15, but appellant was hospitalized from May 15 to May 20 and again from May 21 to May 22 so she did not have her first session until June 9.

The CSW provided appellant with a referral for the Regional Center, which required an educational history and a psychological and neurological evaluation. The CSW contacted appellants therapist, who agreed to refer appellant for a psychological evaluation.

Appellant visited Kimberly twice a week for two hours each visit. Appellant visited Luis toward the end of May and twice in June. At the first June visit, appellant called Cesar and allowed Luis to speak with him. At the second June visit, appellant and Luis argued, she cursed at the people in the restaurant where the visit was taking place, and the caretaker ended the visit due to appellants inappropriate behavior. The caretaker indicated Luis had begun to exhibit behavioral problems again.

At the hearing, appellant said the CSW was helping her, but she was sick and told the CSW she could not do everything right now and needed more time.

In November, the Department reported it had replaced Luis into the foster home of Alicia in the middle of August. Appellant was residing in a hotel and had not complied with the court-ordered case plan. According to appellants therapist, appellant had attended one session and had not returned after that. Although the CSW told appellant in July, August and September that she was required to attend therapy, appellant continued to believe she only needed to obtain housing. Appellant was hospitalized from August 9 to August 21, August 27 to August 30, September 13 to September 25, and September 28 to September 30.

Cesar continued to occasionally drop off appellant for visits with Kimberly at the caretakers home. Appellant visited Luis once a week for about an hour.

In January 2007, the Department reported that by the end of November 2006, appellant had completed 10 additional parenting classes. A team decision making meeting was held in December to assist appellant with referrals and services. The Department agreed to provide funds to help appellant obtain housing, and she agreed to attend counseling. The adoptive home study for Kimberlys caretaker had been approved in October.

At the hearing, appellants attorney explained that even though appellant was making progress, it was not enough to proceed with a contested hearing. The court found that appellant had completed parenting and was in the process of finding a home but was only in partial compliance with the case plan and had attended only one counseling session and had failed to obtain a Regional Center assessment. The court found appellant had not consistently and regularly visited the children or made significant progress in resolving the problems that led to the removal of the children and had not demonstrated the capacity and ability to complete the objectives of the treatment program and to provide for the childrens safety, protection, and physical and emotional health. The court terminated reunification services.

III. Section 388 and Section 366.26 Hearings

A. Background

In May 2007, the Department reported that toward the end of December 2006, Luis had begun receiving wraparound services, including counseling, and his grades had improved, although he continued to struggle with classroom behavior and task completion.

Kimberly had established a relationship with her caretakers and adjusted well to their home, and her caretakers were willing to adopt her and considered her an important part of their household. The Department referred Luis to the placement and recruitment unit to locate a prospective adoptive home for him.

Appellant had been visiting with Luis and Kimberly, but there had been a few incidents during the visits with Kimberly where appellant started a fight with Kimberlys caretaker, and Kimberly became frightened.

At the hearing, appellants attorney indicated she intended to file a section 388 petition within a few days. The court continued the hearing to June for a contested section 366.26 hearing.

On June 19, appellant filed a section 388 petition requesting the court to change its order terminating reunification services. The alleged changed circumstances were that previously appellant did not have a residence and was in and out of the hospital and now needed more services to comply with the case plan. The petition claimed it was in the best interests of the children because appellant visited consistently, Kimberly had lived with appellant until she was two-years-old, housing and stability was a large component in the case and she now had stable housing and could provide for the children, and Luis had lived with her for a large majority of his life. Attached to the petition were a certificate of completing a parenting class; a May hospital discharge indicating appellant had been hospitalized from April 18 to April 25, 2007, and been diagnosed with uncontrolled hypertension, diabetes, asthma, bronchospasm, injury/poisoning at home, hyperlipidemia, iron deficiency anemia, leukocytosis, tobacco use disorder, noncompliance/long term use of insulin, and polyneuropathy; and a lease agreement signed by appellant and Cesar on May 9, indicating they and the children were the tenants/residents, the rent was $875 a month and an additional $1,100 was required as a security deposit.

On June 28, the court held a contested section 366.26 hearing. The Department reported that Luis had told the CSW he would like to be adopted, but only by people he knew such as his maternal aunts or his current caretaker. Luiss foster mother said he could stay with her for as long as he liked, but she was not interested in adopting him. Luiss maternal aunts were not interested in providing him with a permanent home.

Appellant had visited Kimberly twice a week for one hour each visit, but she had not visited Luis for the past two months. A letter from appellants therapist indicated appellant had resumed counseling in January 2007, had attended ten sessions, cited health reasons for her extended absence from June 2006 to January 2007, and the main issue appellant addressed in her sessions was stress management.

In July, the Department reported that Luis had adjusted well to his foster home and had informed the CSW he did not want to go anywhere else. Luis was doing well in school, his behavior had improved, and he had been attending therapy regularly.

After not visiting with Luis for two months, appellant had recently visited on July 6. Appellant continued to visit Kimberly twice a week. The caretaker reported that Kimberly enjoyed seeing appellant, but she often turned to the caretaker for comfort and panicked if the caretaker walked away.

On July 9, appellants landlord indicated the rent which had been due on the first of every month had not been paid. The Department continued to have concerns that appellant still had contact with Cesar, allowing him to drop her off for visits with both children.

B. The Contested Hearing

1. The CSW

CSW Adelina Arutyunyan testified that she had been assigned to the case for over a year. Appellant had not complied with all of the courts orders, including individual counseling to address mental health issues and attending additional parent classes as recommended by her instructor. The CSW believed appellants health could affect her ability to parent the children. Appellant had completed counseling sessions dealing with stress management.

Appellant never had unmonitored visits with the children and she had not visited regularly in the past, although she had visited Kimberly regularly during the last period. On several occasions, Cesar accompanied appellant and watched from a distance. The CSW had spoken to appellant about Cesars presence at the visits when she first came on the case and when the caretakers reported he dropped appellant off, but appellant said he was the only person available to help her.

Appellant acted inappropriately during the visits by engaging in arguments with the caretakers, and on one occasion, throwing a Coke bottle at the caretakers car when the caretakers ten-year-old son was arguing with the caretaker.

The CSW observed appellant interact positively with Kimberly, and Kimberly called appellant mother. Kimberlys caretaker wanted an open adoption and said she would allow appellant to visit. Although Kimberly knew appellant was her mother, she turned to the caretaker, not appellant, for comfort.

Regarding Luis, his visits with appellant were good and sometimes he said he wanted to go back with her. Appellant had only seen Luis twice in the last two months and she had not recently called to ask for visits with him.

2. The Caretaker

Margaret, Kimberlys caretaker testified she had cared for Kimberly for two years and had always been the monitor for appellants visits. Kimberly called appellant mom or mommy. Margaret had no concern about appellants appropriateness during the visits. Appellant played, sat and ate with Kimberly and sang songs or read books to Kimberly. There were times when Margaret and appellant argued and raised their voices, and Kimberly got scared. Kimberly cried once or twice and said she wanted to go home and turned to Margaret. Appellant brought candy, doughnuts and other junk food to the visits even though Margaret had asked her not to, and Margaret attributed Kimberlys cavities to that food. At times, appellant brought a toy or doll, and she attended Kimberlys preschool graduation. Margaret and her husband helped Kimberly with her homework and took her to her doctors and dental appointments.

Margaret preferred to adopt Kimberly, and she had told appellant from the beginning that she would allow appellant to continue to visit. Margaret would also allow Luis to visit Kimberly and a visit had already been arranged for the next week.

3. Appellant

Appellant testified that she had been living by herself for three months. Appellant was waiting for her SSI check to pay the rent and was going to borrow $500 from a friend and try to get the rest of the money from others. Appellant relied on SSI and bought and sold items to get extra money. Appellant received $635 in SSI, but her rent was $875. Appellant needed help with bus tokens to go places.

Appellant had completed two parenting classes, the last in November 2006. Appellant was participating in individual counseling at the Chinatown Center and sometimes she saw her counselor once a week.

Appellant has diabetes, asthma, low iron and high blood pressure. Sometimes, appellants health affected her ability to get to counseling appointments. Appellant was on medication for diabetes, asthma, and low iron; she was last in the hospital on June 28 due to asthma.

Appellant denied she was in a relationship with Cesar, but admitted he had helped her get her apartment because she had poor credit. Appellant claimed that she last had an intimate relationship with Cesar in 2006 and had last seen him when he signed the lease.

Appellants relationship with Kimberly was good. Appellant acknowledged Margaret had said she would allow appellant to visit with Kimberly once a week if she were to adopt Kimberly.

Appellant admitted she had missed three or four visits with Luis in the past two months. Luis had lived with appellant until he was seven years old, then she gave him to her sister Marie to care for, and he lived with Marie for a year, and then he returned to appellant a couple of months prior to intervention by the court.

4. The Courts Ruling

In denying appellants section 388 petition the court found that the best interests of the children would not be promoted by the proposed change and stated:

I dont know if mother has done everything in her power. I think shes made some really good efforts. She is farther along. . . . Its to her credit that she is still living and that shes found a place to live, but we really are [talking] about a capacity case. She can hardly take care of herself. I dont see her being able to take care of her children. We keep talking about this like its a housing issue. I keep looking back at the original complaint, which is a lot more than a housing issue. I mean, the allegations . . . that were sustained [were] that mother led a transient lifestyle and [lacked] the resources and stability to appropriately care and provide supervision for the children and she had refused to accept numerous housing vouchers from numerous local community agencies and shelters from [the Department] and failed to provide the children with adequate food. On a consistent basis the children slept on the street and were found to be in a filthy condition wearing soiled clothing and having poor hygiene.

Shes definitely come a lot further than she had been, but she hasnt been -- she never followed the case plan enough even after all the services offered to her by the Department before and after the petition was filed. . . .

Shes made progress. I think she made as much progress as she is going to make, but its not . . . enough progress in order to keep the children . . . . [] . . . she cannot function well enough to take care of the children full-time herself, either one of them. Im very happy shell still be in their lives.

With regard to the section 366.26 hearing, after counsel for the Department and Kimberlys attorney argued that no exceptions to the termination of parental rights existed, appellant began screaming, ran from the courtroom, pounded on the doors on the way out, and screamed in the lobby area. Appellants attorney asked the court not to terminate appellants parental rights, arguing Kimberly saw appellant as her mother, the visits were appropriate, and legal guardianship was the most appropriate plan.

The court also stated no amount of services was going to change that appellant was unable to take care of herself and, in fact, she had been provided with a lot more services than the vast majority of parents in the dependency system.

The court found appellant was only in partial compliance with the case plan, was emotionally very immature, and had an inappropriate temper and more problems than had ever been discussed. The court found Kimberly was likely to be adopted, the subdivision (c)(1)(A) exception to section 366.20 did not apply, and terminated appellants parental rights.

Appellant filed a timely notice of appeal from the order terminating her parental rights and subsequently filed an amended notice of appeal also appealing the order denying her section 388 petition.

DISCUSSION

I. The court did not abuse its discretion when it denied appellants section 388

petition.

Appellant contends the court abused its discretion when it denied her petition for more services because she visited Kimberly and Luis regularly, worked on her case plan and had completed two parenting classes and was participating in individual counseling, and finally was able to rent an apartment.

Section 388 permits a parent to petition the court on the basis of a change of circumstances or new evidence for a hearing to change, modify or set aside a previous order in the dependency. The parent bears the burden of showing both a change of circumstance exists and that the proposed change is in the childs best interests. A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the childs best interests. [C]hildhood does not wait for the parent to become adequate. (Citations omitted.) (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The change of circumstances or new evidence must be of a significant nature. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.)

Whether a previously made order should be modified rests within the dependency courts discretion, and its determination will not be disturbed on appeal unless an abuse of discretion is clearly established. (In re Amber M. (2002) 103 Cal.App.4th 681, 685.)

Though there are statements to the contrary, based on the Department reports, it appears appellant visited Kimberly regularly except when she was hospitalized. However, in November 2005, appellant visited three times a week, but by June 2006, the visits were twice a week. Appellants visits with Luis were inconsistent. Even though Margaret, Kimberlys caretaker, indicated appellant was appropriate during the visits, appellant started fights with the caretakers during some visits.

Appellant asserts the court did not make a specific finding regarding whether her circumstances had changed and suggests the court acknowledged circumstances had changed. The court found that although appellant had made progress, she could not function well enough to take care of the children;[3]that is an implied finding appellant had not established significant changed circumstances. Appellant argues she complied with the case plan and removed or ameliorated all of the problems that led to dependency, i.e., because she had secured housing, which she describes as one of the key factors that brought her children into dependency, and had her health issues under control, further services would cement her progress and benefit her children.

Appellant did complete two parenting classes, but she attended those classes prior to the termination of reunification services so completion of those classes did not constitute a changed circumstance. Appellant consistently made excuses for not attending counseling despite having received numerous counseling referrals; after being in the dependency system for two years, appellant had finally started counseling and had attended 10 sessions. However, it appears the sessions focused on stress management not the mental health issues the court wanted addressed. Despite the counseling, the court found appellant was not able to take care of herself much less her children.

Appellant had only been in her apartment for three months at the time of the hearing, she had not paid her current rent, her rent of $875 exceeded her SSI income of $635, and Cesar was on her lease. Appellant indicated she was going to borrow money from a friend to pay her rent and would pay the friend back when she received her SSI check. Thus, it appears appellants housing situation was as precarious as it had ever been. Appellant cited her health as the reason she did not attend counseling from June 2006 to January 2007, and she had been hospitalized at least twice in 2007. The hospital discharge report from May 2007 showed that appellant had been diagnosed with a variety of illnesses, and she testified she was last in the hospital on June 28 for asthma, all of which indicates her claim her health was under control was questionable. Appellant still needed assistance with bus tokens to get places.

Throughout the proceedings, the court noted appellant was only in partial compliance with the case plan. Appellants efforts at counseling came after reunification services were terminated. As the court noted, appellant had been provided more services than the vast majority of parents in the dependency system. Appellant had repeatedly refused to use the referrals. The court referred to appellants failure to follow through at various times during the proceedings. In other words, appellant was getting ready to make an effort to assume a parental role. Hence, at best, appellant showed changing, not changed, circumstances. Accordingly, the court did not abuse its discretion when it denied her petition.

In addition, in In re Kimberly F. (1997) 56 Cal.App.4th 519, 532, the court summarized the factors a court should consider in determining best interests in ruling on a section 388 petition: (1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parents and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been. (Original italics.) The court noted the list was not meant to be exhaustive. (Ibid.) Additionally, the petition must be considered in the context of the entire dependency proceeding. (See In re Marilyn H. (1993) 5 Cal.4th 295, 307.)

Appellant suggests the court applied a simple best interest test of comparing her household and upbringing to that of the caretakers. Not so. In the case at bar, the dependency was based on appellants failure to comply with voluntary services, her transient lifestyle, her lack of resources to provide appropriate care and supervision of the children, her refusal to accept housing vouchers, and her failure to provide the children with adequate food on a consistent basis.

Thus, given the seriousness of and the continuation of the problems leading to dependency, and the fact the problems had not been ameliorated, appellants failure to comply with the case plan until after reunification services were terminated and the courts finding she was not even able to take care of herself and would not be able to take care of the children, she failed to show it was in the best interests of her children to offer her more services. (See In re Angel B. (2002) 97 Cal.App.4th 454, 464 [[A]t this point, the focus shifts to the needs of the child for permanency and stability.].)

II. Substantial evidence supports the finding that the section 366.26, subdivision

(c)(1)(A) exception did not apply.

Appellant contends the court erred in not finding the section 366.26 (c)(1)(A) exception applied as she had a good relationship with Kimberly, Kimberly was happy to see her, she had visited Kimberly regularly and was always appropriate with her, and it would be in Kimberlys best interest to maintain the bond between mother and child.

This court reviews the finding the section 366.26 (c)(1)(A) exception does not apply for substantial evidence. (In re Datoka H. (2005) 132 Cal.App.4th 212, 228.) On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)

A parent must show 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 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 parents rights are not terminated. [] Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adults attention to the childs needs for physical care, nourishment, comfort, affection and stimulation. The relationship arises from day-to-day interaction, companionship and shared experiences. The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent. (Citations omitted.) (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

Even though day-to-day contact is not mandated (In re Casey D., supra, 70 Cal.App.4th at p. 51), more than frequent and loving contact is required. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.)

Although appellant had visited Kimberly regularly, there was no evidence of a significant, positive emotional attachment between appellant and Kimberly. Kimberly recognized appellant was her mother, but she turned to her caretaker when she wanted comfort and panicked if the caretaker walked away. Kimberlys caretaker reported that when Kimberly saw appellant from a distance, Kimberly asked the caretaker to hold her and did not want appellant to pick up her. Kimberly became frighten during some visits when appellant instigated arguments with the caretaker. Appellant had not assumed a role beyond that of a friendly visitor and her visits, which were short and less frequent than when Kimberly was first in foster care, had not progressed to overnight visits much less extended visits. Thus, there was substantial evidence the exception did not apply.

DISPOSITION

The orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, Acting P.J.

We concur:

ZELON, J. WILEY, J.*

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*Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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

[2] Previously, appellant had received services from the Department between July 1998 and September 1999 and between October 2001 and June 2002.

[3] Appellant asserts the court did not have any expert testimony to support its position. However, the court observed appellant at the hearings and had the Department reports to support its finding.