In re Luis R.

Filed 9/12/07 In re Luis R. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

APPEAL from orders of the Superior Court of Los Angeles County, Jacqueline H. Lewis, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Raymond G. Fortner, Jr., Los Angeles County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Senior Associate County Counsel for Plaintiff and Respondent.

Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant Jesus R.

Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant Jassel C.

I. INTRODUCTION

Jassel C. (the mother) and Jesus R. (the father) separately appeal from a juvenile court order terminating their parental rights to their four children pursuant to Welfare and Institutions^[1]section 366.26. The juvenile court order refusing to apply the section 366.26 subdivision (c)(1)(A) beneficial exception to adoption must be affirmed because it is supported by substantial evidence. Also, the mother appeals from the denial of her section 388 modification petition. We also affirm an order denying the mothers section 388 petition because the juvenile court, without abusing its discretion, could have found there were no changed circumstances and the childrens best interests would not be served by modifying any existing orders.

II. BACKGROUND

On November 22, 2005, the Los Angeles County Department of Children and Family Services (the department) filed a section 300 petition on behalf of: Gabby R. (who was born in July 1999); Jesus R. (who was born in March 2001); Jocelyn R. (who was born in May 2003); and Luis R. (who was born in October 2004). The detention report stated that the children were detained on November 17, 2005 due to allegations of general neglect. A department social worker arrived at the parents apartment where Los Angeles Police Department Officers Laurino and Miller were waiting. (The department papers do not identify the first names of the two officers.) Officer Laurino stated that they went to the parents apartment due to a call from Dawn Esparaza, an outreach worker from the Los Angeles Unified School District. Ms. Esparaza and an associate, Linda Miller, came to the apartment at approximately 10:30 a.m. because Gabby had been absent from kindergarten for over 10 days. All four children were at home alone. Gabby, who was six years old at the time, did not know where the mother could be found. Gabby had not seen the mother since the previous night. Ms. Esparaza and Ms. Miller saw that the home was filthy and the two younger children were in dirty diapers. Steam was emitting from a pressure cooker on the stove with a live gas flame. The police were called after the stove was turned off by either Ms. Esparaza or Ms. Miller.

Ms. Esparaza and Ms. Miller left the mothers home and waited outside for the police. When the police arrived, the two school employees and the two police officers walked back to the mothers apartment. The mother was again not in the home and the four children, as previously, were alone. Officer Laurino asked four-year-old, Jesus to open the door. Officer Laurino observed that the home was dirty and cluttered. Officer Laurino saw dried food on the floor. Dirty clothing was strewn about the two bedrooms. The children were dirty. Cockroaches were observed throughout the apartment. Two-year-old, Jocelyn was standing on a chair approximately five feet from the stove where the pressure cooker had been heating when the two school employees arrived. Jesus subsequently ran out of the apartment toward a lunch truck on a side street where the mother was standing. The mother arrived at the apartment about 20 minutes later after Ms. Esparza and Ms. Miller first appeared at the family apartment. According to the detention report, [The mother] told Esparza and Miller that she had been at the apartment managers apartment.

The mother told the police officers that she went to the truck to buy the children some chips. She asked a neighbor, who was working on his car, to watch the children. However, Officer Laurino observed that a person could not monitor the children from where the neighbor was working on the car. He also noted that the mothers apartment door opens to a congested, busy, open-gated parking lot. The parking lot is very close to Sepulveda Boulevard. The mother stated that she had previously left the children alone but had kept the apartment door open so four-year-old Jesus could come get her. The mother was in the apartment managers apartment. According to the detention report, it was impossible to see the mothers apartment from the apartment managers unit. A neighbor, who did not want to be identified, said the mother repeatedly left the children alone in the apartment. The mother admitted she left the children alone. The mother did not know how long the children had been left alone during the visits to the managers apartment or the lunch truck.

The case social worker noted that the kitchen was dirty with dried food caked on the stove and countertop. The refrigerator had a half-empty gallon of milk, a bottle of beer, a package of tortillas, and some dried food in small bowl. The mother stated that she was cooking beans but there was no other food in the home. The mother planned to get food later in the day.

The mother did not have the childrens immunization records. The mother said Gabby had not attended school for the last few weeks. This was because Gabby hurt her thumb. According to the mother, a doctor said not to send Gabby to school for one month. The mother stated Gabbys hand got caught in the front door but the thumb was not broken. The mother stated the thumb had stitches. The mother had an appointment with a doctor to have the stitches removed. But the mother did not know when or with whom the appointment was scheduled.

In an addendum report, the department stated the mother has a history of substance abuse and is a current illicit drug user. The mother had a positive toxicology screen for amphetamines and methamphetamines. The mother initially denied using illicit drugs. According to the social workers detention report, the explanation for the positive drug test was as follows, [The] mother then stated that she was at a friends house where they were smoking that shit. The mother responded that it was a long time ago that she was around such people. The mother admitted that she had used narcotics in the past but stated she did not do so anymore. In 1996, the mother was convicted for switchblade knife possession. From 16 to 19 years of age, the mother was in a gang.

At the November 22, 2005, detention hearing, the juvenile court found the father was the presumed father of all the children. The juvenile court also found a prima facie case existed to detain the children and ordered them detained. The mother was given monitored visitation and the father was granted unmonitored visits. The department was ordered to provide family reunification services. The department was also ordered to provide the parents with referrals for drug rehabilitation, random narcotics testing, parenting classes, and individual counseling. The department was given discretion to place the children with the father if the mother moved out of the home and it was fumigated and cleaned.

On December 20, 2005, the department filed a first amended petition. The department added the allegation the father failed to ensure that Luis received immunizations. The December 20, 2005 jurisdiction/disposition report stated that Gabby said the mother went to buy Cheetos for the children. The mother left the children in the house alone. The children were all awake. Gabby said the mother had left them alone at other times. The mother asked the apartment manager to watch the children. The department report stated: Gabby stated that her mother would say she was going to tell the apartment manager to watch them, but the manager always remained in her home and the children remained alone in the apartment. . . . Gabby stated that she was afraid when her mother left her alone with her siblings because she left the door open. Gabby thought the father was aware that the mother left them alone. Gabby and Jesus stated that they wanted to return to their parents. The children were all placed in the same foster home.

On the day the children were detained, the mother had been cooking beans on the stove. Gabby said her younger siblings were in the kitchen but did not go near the stove. Gabby stated the house was dirty and was in this condition on a daily basis. She stated the mother bathed the children daily and they ate regularly. Gabby hurt her right finger on Halloween when a door was accidentally closed on it. According to a department report: Gabby stated that when she did not follow directions, her mother would have her face the wall and have a time-out. Gabby also stated that her mother would hit her with a belt . . . [on a] daily basis. The belt hurt but she did not remember seeing any marks on her leg after being hit. The mother did not hit any of Gabbys siblings.

Gabby said the parents fought with each other everyday. Gabby would be awakened from sleep because her parents were yelling at each other. Gabby said she could hear them hitting each other and the police would come to their home. A receptionist at the Van Nuys Division of the Los Angeles Police Department stated that the police may have responded to the address but never wrote a report.

On December 11, 2005, the mother was interviewed. During the interview about five different people came into the apartment without knocking and went into the back rooms or used the telephone. The mother stated people often come to her home because she allows them to use her telephone.

The mother admitted that Luis had not received a single immunization since his birth. The mother stated the doctor said to wait until Luis turned one year old to get any immunizations. The mother stated that she did not leave the children alone. The mother went to talk to the manager about the rent. The mother was standing outside of the managers apartment door, which was about 30 feet from where the children resided. The mother did not make breakfast for the children that day because they were usually not hungry. When she went to the food truck, she asked Art to watch the children. Art was fixing his car in the front of her apartment building. The mother showed the case social worker the pot and lid that the beans were cooking in on top of the stove. The lid was tightly secured when closed. The mother said the handle was facing the inside of the stove and the children would not have attempted to reach the pot.

The mother stated that she began using drugs at the age of 19. The mother smoked methamphetamine for two years. She never inhaled or used methamphetamine intravenously and it was always available to her at no cost. The mother said she began using methamphetamine to lose weight and stopped when she became too thin. The mother stated that she was able to stop using methamphetamine on her own and did not have to enter a drug program. According to the mother, to stop using drugs, you to have to want to; and she wanted to stop. The mother began using crystal in order to lose weight after Luis was born. The mother would use the drugs at night when the children were asleep in their beds. The mother stated the father was unaware that she was using drugs. When the father recently found out about her drug use, he was angry with her. The mother often used drugs after she and the father argued. The mother said she should have waited for advice from an attorney prior to drug testing. The mother did not feel that she had a drug problem. The mother denied being convicted of drug possession. The mother stated that a friend was arrested who then used the mothers name and birth date.

The mother candidly admitted that she had been using drugs regularly since the children were detained, while the father was at work. The mother said she had consumed a bottle of Tylenol but it did not affect her so she then chose to use meth. Toward the end of the interview, the mothers demeanor changed. The mother was trying to locate documents in a file but was losing focus and becoming agitated. The mother was asked if she had recently used methamphetamine and was coming down from a high. The mother put her head down and her finger in front of her mouth. The mother then said, [S]hh with a grin. A social worker reported, [The m]other . . . did not deny that she was under the influence while being interviewed . . . . The father was in the bedroom during the interview. The mother stated she usually cleans in the afternoon. The cockroaches were in the apartment because the next door neighbors had recently moved. The insects, according to the mother, then moved into her apartment.

The father stated that he was working and did not know if the mother left the children alone on November 17, 2005, or any other date. The father did not know how long the mother had been using drugs. The father subsequently stated that he noticed the mother had been using drugs the past six months. He found a ball and a pipe. The father confronted the mother and she agreed that she would not use narcotics again. The father said the mother never failed to keep the house clean and she had dinner prepared when he returned from work at 6 p.m. According to the father: the children left their toys lying around but the house is usually clean; he buys food every two weeks; and Gabby did not want to go to school but they would still send her.

The February 8, 2006 disposition report stated the mother planned to enroll in a six-month inpatient program as soon as the children were returned home. The mother was asked if she was enrolling in the program to have a place to stay or if she was serious about getting treatment for substance abuse. The mother did not respond but stated that she did not have any friends or family she could live with so she could attend an outpatient program. The mother had not drug tested and stated it was because and it was too much trouble for her to call the test site every night. The mother denied using any drugs for two months. On January 10, 2006, the mother told a childrens social worker, Robert Mariscal, I will not change, I am who I am.

The mother stated that she and the father were having problems for the past several years. In the prior two months, they had three physical confrontations and often argued. The mother said the father struck her with his hands but left no marks or bruises. The father did not disagree with the mothers statements concerning domestic violence and both agreed that they needed counseling.

The children were visiting the father on Sundays. The children would return to their foster home with stomachaches because they were given too much junk food. The problem had been resolved.

In a February 8, 2006, ex parte application the department requested the visitation order be changed to permit only monitored visits for the father. In addition to the mothers statements of domestic violence, Gabby and Jesus reported that their parents referred to the youngsters with derogatory names. Gabby stated the father would slap the mother. The children were afraid because they thought their parents would hurt each other. On December 11, 2005, the mother admitted striking Gabby with a belt which bruised the childs leg. Gabby was struck with a belt after calling the mother a derogatory name. According to the mother, Gabby got a really bad bruise. Gabby stated the father gave the children timeouts when they misbehaved. However, on January 5, 2006, Gabby and Jesus disclosed to Mr. Mariscal, the social worker, that the father hit them on their arms and legs. They stated that they were happy in the foster home where they were given timeouts out for misbehavior rather than being hit. Both parents denied that the father physically disciplined the children. The court granted the ex parte application and ordered the father to have monitored visits pending adjudication.

The department filed a second amended petition on February 24, 2006, which alleged domestic violence and physical abuse. On March 21, 2006, the parents entered no contest pleas. The juvenile court found the children were dependents as described by section 300, subdivisions (a) and (b). As sustained, the second amended petition alleged the parents created a detrimental home environment and placed the children at risk of physical and emotional harm because: the parents have a history of engaging in verbal and physical confrontations in the presence of the children; the mother left the children home alone with no adult supervision while a stove was ignited with access by the children; the mother has a history of substance abuse and is a current user of illicit drugs including methamphetamines and amphetamines; as a result of the foregoing drug addiction, the mother failed to obtain immunizations for Luis and did not ensure Gabby regularly attended school; and the home was in a filthy and unsanitary condition.

The juvenile court ordered the department to provide family reunification services. The parents were given monitored visits. The juvenile court ordered both parents to participate in a counseling program including individual counseling. The father was ordered to participate in parenting, domestic violence counseling, and alcoholics anonymous. The mother was ordered to participate in: parenting classes; domestic violence counseling; drug counseling; and random drug testing.

On June 13, 2006, in an interim review report, the department stated that the parents were given referrals on January 10 and April 5, 2006, so that they could abide by the juvenile court orders. On May 28, 2006, the department scheduled an appointment with the Clinical Assessment Provider Program to help the parents overcome the case issues. A department social worker telephoned the mother. The mother was told that she and the father needed to attend the appointment which was scheduled for May 31, 2006. The parents missed the appointment. Neither parent had enrolled in or completed any of the court ordered programs. The mother failed to undergo drug testing on January 30, February 3 and 13, and March 1 and March 17, 2006. The mother had negative test results on April 11 and 27 and May 10, 2006.

On August 16, 2006, the department informed the court that the mother enrolled in the Tarzana Treatment Center on July 27, 2006. However, the mother was discharged because she was present at only one group session and failed to attend all other group and individual sessions. The parents failed to visit their children on August 2 and 9, 2006.

In an August 22, 2006 status review report, the department stated neither parent had complied with any court orders. The mother failed to test on January 30, February 3 and 13, March 1 and 17, and May 24, 2006. The mother had negative test results on April 11 and 27, May 10, June 23, and July 7, 2006. The mother stated she did not undergo the required tests because she was mad at you guys for taking her kids.

The parents consistently visited the children. The mother gave the children the most attention. The father only gave attention to Gabby and did not interact much with the other children. He seemed overwhelmed with all the children. The parents struggled with setting structure. The children acted out to get the parents attention. The children placed Happy Meal Boxes on the floor. When the parents did not clear the floor, the social worker had to pick up the refuse and place it on a table. The mother would yell at Jocelyn and would cease the behavior after Juan Carlos Bravo, the foster care social worker, gave a disapproving look. Mr. Bravo stated that it is how the mother parents the children that she does not change.

Mr. Bravo reported that there was good interaction in the visits. The children were very comfortable with their biological parents, to whom they displayed their affection in different ways. The children were cheerful, happy, and affectionate toward the parents. The family members had good interaction and there was more progress by May 2006. When the parents missed visits on June 7 and July 5, 2006, the children were sad and disappointed.

The children were well adapted to their placement. The children had good relationships with the foster mother. They followed rules and listened to authority. The two older children, Gabby and Jesus, stated that they wanted to stay with the foster mother.

In January 2006, the foster mother stated the children returned from home visits with their parents on two occasions vomiting orange chunks and fluids. The children were apparently fed Cheetos to the point they became sick and vomited. The children became ill prompting their doctor to request that the children be maintained on a healthy food diet. Both parents denied giving the children junk food.

The children had been residing with foster mother, Ericka H., since they were detained. She expressed interest in adopting the children if they could not reunify with their parents. The foster mother stated that when the children were initially placed with her they were filthy and smelled like they had not bathed in weeks. The girls had knots in their hair. The children reeked when she gave them showers. According to the foster mother, It took weeks for the dirt to come off them.

The foster mother also stated that the children all wanted to sleep together. According to the foster mother, [T]hey could not be kept apart. Jesus would go upstairs and fall asleep on the floor in the room with his sister. On January 5, 2006, Gabby stated that the parents called each other bad names. Gabby and the other children began to reenact the parents behavior with teddy bears. The children reenacted the father slapping the mother and stating, [G]o fuck yourself. The children stated they were scared because the parents would fight at night and worried the parents would hurt each other. The children huddled together in bed and fell asleep crying. Since they began residing with the foster mother, the children had made strides in their development and were not afraid to sleep at night.

On August 22, 2006, the juvenile court set the matter for a contested six-month review hearing on September 27, 2006. On September 27, 2006, the department recommended the mother receive six more months of reunification services. The recommendation was contingent upon the father moving from the home. The department reported that the mother had re-enrolled in the Tarzana Treatment outpatient program. The department also reported that the mother had failed to undergo drug testing on August 8 and 23, 2006. The mother tested negative for drugs on August 28 and September 5, 2006. The foster mother, Ericka H., was no longer interested in adoption. The children were referred to the Placement and Recruitment Unit to identify an appropriate adoptive family and proceed with the plan of adoption. On September 27, 2007, the juvenile court continued the contested hearing to November 2, 2006.

On November 2, 2006, the department reported that the mother tested positive for cocaine on October 4, 2006. The mother also failed to undergo a drug test on October 23, 2006. The parents had visited the children only twice monthly for the past three months although they were allotted four visits each month. The department social worker stated that the parents continued not to comply with the case plan and court orders. Neither parent was willing to complete the necessary programs to ensure safe return of the children to their custody. It also appeared that the mother was not committed to sobriety. The department recommended that family reunification services be terminated as to both parents.

The parents visited the children on September 8 and 15, 2006. The children were happy to see the parents. Mr. Bravo reported that the parents missed visits on September 22 and 29, 2006. The children were not sad and did not appear to be emotionally disappointed when their parents failed to appear for scheduled visits.

At the contested six-month review hearing on November 2, 2006, the mother testified that she had been enrolled in the Tarzana Treatment Center outpatient program for three months. As part of the drug program at the Tarzana Treatment Center, the mother was required to participate in a drug program and group counseling. The mother did not attend group counseling for domestic violence because she had to pay for it. The mother had a sponsor. The mother attended individual counseling every Friday. The mother also provided the court with a completion certificate from the Tarzana Treatment Center. In addition to these programs, the mother attended narcotics anonymous meetings. The mother explained that she failed to appear for a drug test on October 23, 2006 because she was ill. She denied using drugs on October 6, 2006. According to the mother, the parents missed visits with the children because of car problems. The mother testified that her drug of choice when she used was meth, which she had used since she was 18 years old. The mother denied using any drugs for 10 months.

After counsel argued, the juvenile court made a number of specific factual findings concerning the parents lack of compliance with the case plan. The juvenile court stated: While the court finds that the parents have consistently and regularly visited, court is finding they have not made significant progress in resolving the problems that led to the removal of the children, nor have they demonstrated the capacity and ability to complete the objectives of the treatment plan or to provide for the childrens safety, protection, physical and emotional health and special needs . . . . []  I will note we are 20 days away from have been in this court a year. During that period, the parents have done very little. Mother has been in a program not for three months but for nine weeks after falling out of a program for non-compliance. During [those] nine weeks, she has at least one no-show on a drug test and a positive drug test. []  Court cannot make a finding that she made significant progress in resolving the problems that led to the removal of these children. Shes done some parenting. Shes gone to some classes, but this is not significant progress, and thats shown by mothers most recent positive drug test on [October 4, 2006] followed by a no-show on [October 23, 2006]. []  Court does not find mothers indication that she did not use and that she was then sick for the next test particularly convincing. []  Mother sums up the case the best when she indicated on page ten of [departments exhibit] 1, I am who I am. I am not going to change. I dont need to change. Its fucked up that my kids got taken away. That was mothers opinion at the beginning of the case. []  Basically what shes shown a year later it is time to turn to permanence for the children. That is what they are deserving of. . . .  []  Mother never indicated previously that she needed further referrals for domestic violence. Its only been subsequent to the contest being set that mother is now indicating Oh, by the way, I could not afford the [domestic violence] counseling; therefore, the department did not provide appropriate referrals. Its disingenuous.

The juvenile court found: continued jurisdiction was necessary; return of the children to the physical custody of the parents would create a substantial risk of detriment to the youngsters; the department made reasonable efforts to enable the childrens safe return home and to complete a permanent plan; and there was no substantial probability that the children would be returned to the parents within six months. The juvenile court also found that the extent of the progress the parents had made in the last period of review toward alleviating or mitigating the causes necessitating placing in foster case was minimal. On November 2, 2006, the juvenile court terminated family reunification services and set the matter for a section 366.26 permanent plan hearing on March 1, 2007.

On December 28, 2006, the department reported that the children had been placed in a prospective adoptive home on December 4, 2006. The children had made age appropriate attachments with the adoptive parents. The home was a good match for the childrens needs. The adoptive parents had shown a genuine loving and supportive home. Gabby and Jesus were enrolled in and attending school.

On March 1, 2007, the department reported that the home study for the prospective adoptive family had been approved. The prospective adoptive family wanted to provide the children with a permanent and stable home. The adoptive mother stayed at home. The adoptive mothers mother also lived in the home and would help with the four children. The children appeared comfortable in the presence of their adoptive parents. Gabby stated that she liked the adoptive parents and that they were nice. The biological parents were homeless but consistently visited the children. The prospective adoptive parents transported the children to the visits.

At the March 1, 2007 section 366.26 hearing, the mother requested a contested hearing. Renelde Espinoza, the mothers counsel, also advised the juvenile court of the mothers intent to file a section 388 petition. The juvenile court continued the section 366.26 hearing to April 2, 2007, for a contest at the mothers request.

On March 5, 2007, the mother filed a section 388 petition requesting the children be placed in her custody or alternatively, weekend overnights, unmonitored visits, or reinstatement of family reunification services. The section 388 petition alleged: the mother had tested negative for drug use from August 28 through December 29, 2006 (a total of 10 clean tests); the mother completed a parenting class in October 2006; the mother completed a 6-month drug program and after care; the mother visited regularly; the mother had a loving and nurturing bond with the children which, if broken, will be detrimental to the childrens emotional well-being; the children were in the mothers custody and care their entire lives prior to detention; and the children wanted to return home. The mother submitted a copy of the parenting class completion certificate, which was dated October 4, 2006. As noted, the mother had a positive test for cocaine on October 4, 2006. The mother attached a letter from the Tarzana Treatment Center dated January 24, 2007. The letter stated that the mother had successfully completed all the requirements for the intensive portion of the outpatient program.

On March 12, 2007, the juvenile court summarily denied the section 388 petition but stated, Please feel free to submit w/information regarding group domestic violence counseling and individual counseling letter. On March 13, 2006, the clerk sent a letter to the mother stating that the petition was denied because the childrens best interests would not be promoted by the proposed change of the existing orders.

On April 2, 2007, at the contested section 366.26 hearing, the father requested a continuance on the ground he had experienced kidney failure. The mother joined in the continuance request and added that she had been taking care of the father and was emotionally low. The juvenile court denied the continuance requests on the ground that it was not in the childrens best interests to continue the matter. The juvenile court further noted that, although the parents might not be feeling emotionally ready, they were both there and ready to proceed.

The mother testified it would be good for her to remain in the childrens lives. The mother explained she is their mother and loves them. The mother testified it would be in the childrens best interest to maintain a relationship with her, Because thats all that we have and they were never separated from us. When she and the father visited the children, they: took the youngsters to McDonalds; played with them; and talked to them. The mother had not attended any school activities. The mother testified she missed a visit because she did not know where to go. The mother left messages for the social worker. However, the social worker never called the mother back. The mother admitted that the social worker claimed to have left a message. But the mother never heard the social workers message. According to the mother, the children appeared to be happy to see her during the visits.

Erin Riley, who represented the children, argued it was clear that the parents expressed love for the children. However, Ms. Riley argued that there was no benefit from continuing the relationship which outweighed the loving and stable adoptive home environment. Ms. Riley argued: For the first time Gabby gets to be a child, because shes not shes being cared for, instead of having to care for her siblings. All the children are well-adjusted, and Gabby indicates she enjoys living there. [] The children have not shown problems leaving the visits with the parents, and the siblings are placed together . . . .

The juvenile court found the children were adoptable and terminated parental rights. In so ordering, the juvenile court stated: The court would note that Ive always been on this case since the matter came into this system on November 22, 2005, so we [are] almost at the 18-month date here, from the time the children entered the system. . . .  []  The court finds it would be detrimental for the children to be returned to the parents. I would note for just a moment that the parents compliance with the case plan has been incredibly minimal in this matter here. []  In fact the matter was set for a contested [section 366.21(e)] back in August, by the time we got to the contested hearing mother had tested positive for cocaine, back in October. The parents have never progressed further than monitored visits in this matter because of their lack of compliance. []  Mother is asking the court for more time, but these are children and they have a very limited amount of time. Unfortunately, especially Gabby has had to be, at her very young age, a parent to the rest of these children because the parents have never been parents. They have been they have been as parents the same as they have been as visitors, and those are a play toy. []  They have never really parented these children. They continue to not be able to parent these children. And it is time for the court to look at whats in the best interest of the children and to look at permanence. []  Once the court determines that the children are adoptable, the court needs to look at whether any of the exceptions to adoption exist in regards to the [section 366.26 subdivision] (c)(1)(A) exception. [W]hile the parents have maintained regular and consistent visitation the court cannot find that the relationship that the children have with their parents is more important than the stability, the importance of these children of having a permanent plan of adoption and having a permanent home that they can call their own. []  I think Ms. Riley pointed it out very well and how they finally get to be children, and especially Gabby, and be taken care of. []  And so the permanence finding permanence together and in an adoptive home is very important and completely outweighs the benefit any possible benefit to the children of continuing to parent their own parents. []  I find it interesting today that given the history of the case the parents come in looking for a continuance in regard to whats in their interest not in regards to what is in their childrens best interest. The parents separately appealed from the order terminating parental rights. The mother filed an amended appeal notice on May 11, 2007, in which she challenged the order denying her section 388 petition.

III. DISCUSSION

A. The Termination Exception

The parents contend their visitation coupled with their bond with the children established the section 366.26 subdivision (c)(1)(A) exception to parental rights termination. Section 366.26, subdivision (c)(1)(A) provides in part: If the court determines, based on the assessment provided . . . and any other 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. The fact that the child is not yet placed in a pre-adoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted. A finding . . . that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to . . . []  (A) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.

At a section 366.26 hearing, the juvenile court is required to select and implement a permanent plan for the dependent child. If the child is likely to be adopted, adoption is the preferred permanent plan. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; In re Edward R. (1993) 12 Cal.App.4th 116, 122; In re Heather B. (1992) 9 Cal.App.4th 535, 546.) Under section 366.26, subdivision (c)(1)(A), a parent must show that he or she has maintained regular visitation and contact with the child. Further, the parent must prove the child would benefit from continuing the parental relationship. The burden is on the parent to prove that termination of parental rights would be detrimental to the child. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350; In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108; In re Derek W. (1999) 73 Cal.App.4th 823, 826-827; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345; In re Tabatha G., supra, 45 Cal.App.4th at p. 1164.) In determining whether the exception applies, the juvenile court considers: the age of the child; the portion of the childs life spent in the parents custody; the positive and negative interaction between the parent and the child; and the childs particular needs. (In re Amber M. (2002) 103 Cal.App.3d 681, 689; In re Jerome .D. (2000) 84 Cal.App.4th 1200, 1206; In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) The juvenile courts determination is reviewed for substantial evidence. (In re Amber M., supra, 103 Cal.App.4th at p. 689; In re L.Y.L. (2002) 101 Cal.App.4th 942, 947, 955; In re Jerome D., supra, 84 Cal.App.4th at p. 1207.) The father notes that there is a division among decisions as to the whether the applicable standard of review is for an abuse of discretion as distinguished from an analysis which examines the record for substantial evidence. (See e.g. In re Jasmine D., supra, 78 Cal.App.4th at pp. 1351-1352.) Under either review standard, however, the result in this case is the same.

In this case, the juvenile court concluded that the benefit of having a permanent home outweighed the benefit of the relationship the children might have with their parents. Application of the factors to consider in determining whether a relationship is important and beneficial establishes the juvenile court did not err in concluding that the childrens need for a permanent, stable adoptive home outweighed the purported benefit of a continued relationship with the parents. The children were initially removed from the parents custody on November 17, 2005. At that time: Gabby was six years old; Jesus was four years old; Jocelyn was two years old; and Luis was one year old. The youngest child, Luis, was approximately 13 months old when he was removed from the parents custody. By time of the parental rights termination hearing, Luis had spent most of his two and one-half years of life in foster care. Likewise, Jocelyn who was two years old when she was detained, was about to have her fourth birthday in foster care. Gabby and Jesus were a little older when they were detained. Nevertheless, for almost two years, foster parents provided the day-to-day care needs for the children.

The children were removed after the mother, who had a history of drug abuse, left the youngsters in the home without adult supervision. The home was filthy and unsanitary. The parents also did not ensure that Gabby attended kindergarten. The mother had a positive drug test on the date the children were detained. The mother subsequently refused to drug test stating on one occasion, I will not change, I am who I am. She also stated that she was not drug testing due to anger with the department. The mother tested positive for cocaine as late as October 4 and missed a drug test on October 23, 2006.

After being detained, the children revealed the parents engaged in domestic violence. When the children were initially detained, they could not be separated at night because they were afraid. The mother admitted there were physical confrontations with the father and he did not deny it. Although the juvenile court ordered the parents to obtain counseling to address the issues that brought the family to the departments attention, there is no evidence that either parent ever obtained domestic violence assistance. Numerous times during the proceedings, the juvenile court attempted to reunify the family by ordering the department to provide services to the parents. However, the mother waited well into the proceedings to attempt to partially comply with the case plan. Significantly, there is no evidence the father ever did anything to materially comply with the case plan. The parents failed to comply with the case plan in a timely manner and to address the situation which caused the detention.

Furthermore, we disagree with the parents that the order must be reversed because they had a bonded, loving family or a strong bonded relationship with the children. The fact that there was frequent and loving contact between the family members did not mean that the exception must apply. Rather, the parents were required to show that they occupied parental roles rather than a friendship. (In re Brittany C. (1999) 76 Cal.App.4th 847, 854 [parents must show at least one biological parent occupies a parental role rather than a friendship]; In re Andrea R., supra, 75 Cal.App.4th at pp. 1108-1109 [parents are required to establish more than frequent and loving contact or an emotional bond accompanied by pleasant visits but must show a parental role]; In re Casey D. (1999) 70 Cal.App.4th 38, 51 [there is legislative preference for adoption which should be ordered unless exceptional circumstances are established by showing the existence of such a strong and beneficial parent-child relationship which outweighs the childs need for a stable and permanent home]; In re Amanda D. (1997) 55 Cal.App.4th 813, 821 [beneficial test requires parent to show a parental role to the minors and strength and quality of the biological relationship outweighs the security and sense of belonging a new family would confer]; In re Jason E. (1997) 53 Cal.App.4th 1540, 1548 [exception applies by showing the existence of a significant, positive, emotional attachment from child to parent and that relationship of the parent to the minor is one of parent and child rather than one of being a friendly visitor or friendly nonparent relative such as an uncle]; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419 [frequent and loving contact insufficient to establish exception which also requires showing of parental role]; In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576 [for exception to apply parent must occupy a parental role].)

The evidence in this case shows no more than pleasant visits which is insufficient to meet the burden of proof as to the section 366.26, subdivision (c)(1)(A) exception. During the visits, the parents played with the children and talked about their lives. The visits took place at a McDonalds restaurant. The children were initially disappointed when the parents missed visits. However, by September 2006, they were no longer disappointed when the parents failed to appear for visits. In addition, the only parental role in the biological family identified by any party to this action was the one that Gabby had to play because her parents failed to act as the parents. Substantial evidence supports the juvenile courts parental rights termination order.

B. The Section 388 Petition

The mother argues the juvenile court abused its discretion in denying her section 388 petition. Section 388 provides in part: (a) Any parent or other person having an interest in a child who is a dependent child of the juvenile court or the child himself or herself through a properly appointed guardian may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court or in which a guardianship was ordered pursuant to Section 360 for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified and, if made by a person other than the child, shall state the petitioner's relationship to or interest in the child and shall set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order or termination of jurisdiction. . . . [] (c) If it appears that the best interests of the child may be promoted by the proposed change of order, . . . or termination of jurisdiction, the court shall order that a hearing be held and shall give prior notice, or cause prior notice to be given, to the persons and by the means prescribed by Section 386, and, in those instances in which the means of giving notice is not prescribed by those sections, then by means the court prescribes.

Our Supreme Court stated the applicable standards in a section 388 petition as follows: The petition for modification must contain a concise statement of any change of circumstance or new evidence that requires changing the [previous order. [Citation.] The petition must be liberally construed in favor of its sufficiency. [Citations.] . . . [I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing. [Citation.] (In re Jasmon O. (1994) 8 Cal.4th 398, 415; see In re Hector A. (2005) 125 Cal.App.4th 783, 792.) The parent has the burden of showing changed circumstances by a preponderance of the evidence. (In re Jasmon O., supra, 8 Cal.4th at p. 415; In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Marilyn H. (1993) 5 Cal.4th 295, 309-310; In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.)

The request for change must be viewed in the context of the dependency proceedings as a whole. (In re Marilyn H., supra, 5 Cal.4th at p. 307; In re Heather P. (1989) 209 Cal.App.3d 886, 891.) As our Supreme Court explained in the Marilyn H. case: The requirement of petitioning the court for a hearing pursuant to section 388 to show changed circumstances must be viewed in the context of the dependency proceedings as a whole. (Cynthia D. v. Superior Court [(1993) 5 Cal.4th 242,] 253.) Dependency proceedings are proceedings of an ongoing nature. While different hearings within the dependency process have different standards and purposes, they are part of an overall process and ongoing case. One section of the dependency law may not be considered in a vacuum. It must be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387.) (In re Marilyn H., supra, 5 Cal.4th at p. 307.) After reunification services have been terminated, the juvenile courts focus has shifted to the needs of the child for permanency and stability. (In re Zacharia D. (1993) 6 Cal.4th 435, 447; In re Marilyn H., supra, 5 Cal.4th at p. 309.) When the section 388 modification petition is filed after reunification services have been terminated and the section 366.26 selection and implementation hearing has been set, the juvenile court must recognize that the focus of the proceedings has shifted from the parents interest in the care, custody, and companionship of the child to the youngsters best interests. (In re Stephanie M., supra, 7 Cal.4th at p. 317; In re Janee J. (1999) 74 Cal.App.4th 198, 211.)

The mother claims the juvenile courts denial of the section 388 petition without a hearing was an abuse of discretion. We disagree. As noted previously, the juvenile court should order the hearing if the petition presents any evidence a hearing would promote the best interests of the child. ( 388; In re Jasmon O., supra, 8 Cal.4th at p. 415; In re Heather P., supra, 209 Cal.App.3d at p. 891.) The Supreme Court has held: The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.] (In re Marilyn H., supra, 5 Cal.4th 295, 310; In re Hirenia C. (1993) 18 Cal.App.4th 504, 516; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416.) The prima facie requirement is met by presenting facts which, if given credit at the hearing, would sustain a favorable decision on the modification petition. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806; In re Edward H. (1996) 43 Cal.App.4th 584, 592-594.) A hearing is not required in every case but pursuant to the express terms of section 388 itself the court shall grant the hearing [i]f it appears that the best interests of the child may be promoted by the proposed modification of an existing order. Section 388 permits an opportunity for a hearing if the statutory requirements, which include a legitimate change of circumstance or new evidence and the best interests of the child, will be promoted by a different order. (In re Marilyn H., supra, 5 Cal.4th at p. 309; In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) The decision denying the hearing is reviewed for an abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 318; In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505; In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)

Here, the section 388 petition was filed well into the proceedings. The section 388 petition was filed on March 5, 2007, which was four days after the scheduled March 1, 2007 section 366.26 hearing. This was four months after reunification services were terminated. It was over 16 months after the children had been detained on November 17, 2005. More importantly, while the mother partially and sporadically complied with portions of the case plan, two primary issues leading to the detention of the children remained questionable during the last reporting period. Notably, neither parent had addressed domestic violence issues. In this regard, when the juvenile court denied the section 388 petition, the juvenile court stated the mother could feel free to provide information about domestic violence and individual counseling. Although the petition alleged the mother had completed the certain programs, the juvenile court implicitly determined that the mother had failed to establish changed circumstances because it requested further information regarding these two areas of concern. The court was not required to grant a hearing based on changing circumstances. As one appellate court has noted: 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. (In re Casey D., supra, 70 Cal.App.4th at p. 47; accord In re Edward H., supra, 43 Cal.App.4th at p. 594; In re Baby Boy L. (1994) 24 Cal.App.4th 596. 610.)

In this case, the childrens removal from the home was initially caused by the mothers drug abuse and neglect. The mothers problems with these issues led to the sustained allegations of neglect, domestic violence, and substance abuse. Moreover, the fact that the mother may have participated in an outpatient program from August until December 2006 did not mean that she had complied with court orders concerning drug abuse or domestic violence. The courts request for further information was not made in a vacuum but after a November 2, 2006 contested hearing and reports showing the mother tested positive for cocaine on October 4 and a missed drug test on October 23, 2006. Thus, within a relatively short time before filing the section 388 petition, the mother had still not appropriately resolved her drug abuse problem. The juvenile court was well aware of the fact the mother had enrolled in but not completed drug treatment programs in the past. The juvenile court could certainly have concluded that it was not in the childrens best interests to be removed from their stable environment. Under these circumstances, the mother did not make a prima facie showing triggering the right to proceed by way of a full hearing because she did not meet the statutory requirement of showing the best interests of the children will be promoted by the change. (In re Stephanie M., supra, 7 Cal.4th at p. 317; In re Marilyn H., supra, 5 Cal.4th at pp. 309-310; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423-424; In re Casey D., supra, 70 Cal.App.4th at pp. 48-49.) Because there was no evidence that established changed as opposed to changing circumstances or anything concerning the best interests of the children, the juvenile court did not abuse its discretion in summarily denying the section 388 petition.

IV. DISPOSITION

The orders under review are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

ARMSTRONG, J.

KRIEGLER, J.

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