In re Santiago O.

Filed 10/15/07 In re Santiago O. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. D. Zeke Zeidler, Judge. Affirmed.

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

Raymond G. Fortner, Jr., County Counsel, Larry Cory and James M. Owens, Assistant County Counsels, and William D. Thetford, Senior Deputy County Counsel, for Plaintiff and Respondent.

__________________________

The case involves appeals from different orders by Andy O., the mother of minors Santiago, Jesus and Jennifer. First, appellant appeals from the order denying her Welfare and Institutions Code section[1]388 petition as to all three children and contends the juvenile court abused its discretion when it denied her petition after a contested hearing. Three months later, after Santiago was placed with his father, appellant filed a second section 388 petition as to Jesus and Jennifer. Appellant also appeals from the order denying her second petition and terminating her parental rights as to Jesus and Jennifer. Appellant contends the court erred when it denied her second petition without a hearing and when it found the exception to termination in section 366.26, subdivision (c)(1)(A) did not apply. We affirm.

FACTUAL AND PROCEDURAL SYNOPSIS

I. 2005

On January 25, the Los Angeles Police Department reported appellant and her children were living in a van with no clothes, food or money. An officer observed soiled diapers, a dirty mattress and dirty clothes and blankets strewn all over the van. The officer observed appellant hallucinating and believed she was under the influence of a controlled substance. Appellant stated she had been living in the van for two days because she and her boyfriend (Eduardo) had had an argument and he left her and the children in the van. Appellant did not know how to drive and had recently suffered a miscarriage.

On January 28, respondent Los Angeles County Department of Children and Family Services (Department) filed a dependency petition on behalf of the children.

In February, the Department reported Santiago, the oldest child, stated appellant and Eduardo fought almost every day, and, during the last fight, he and Jesus saw Eduardo slap appellant hard in the face.

The social worker observed the children to be dressed in t-shirts and no underwear, walking up and down the street barefooted. Appellant said all their clothes were at a friends house where she normally washed them. Appellant stated Santiago had not been in school for over a week because she could not afford to buy him shoes and it had been a long time since any of the children had received any kind of medical or dental attention. Jennifer had a severe diaper rash. Appellant stated she could not afford diapers and Jennifer wore the same diaper all day.

Appellant said she had been evicted from her apartment about a month earlier because she had allowed the maternal grandmother to move in with her. Appellant also said she had last seen the maternal grandmother a few years ago and thought the maternal grandmother was dead. Appellant admitted she used cocaine and marijuana and drank beer regularly.

The Department detained the children and placed them together in foster care.

In March, the Department reported appellants aunt informed it that appellant had been incarcerated for assault with a deadly weapon. Appellant and Eduardo had been residing with the children in their foster home since March 11. On March 15, appellant and the foster mother got into a verbal fight. Appellant left the house, returned with a knife, and a physical altercation ensued. The children were placed in another foster home on March 16.

The April report stated appellant had been released from jail and was homeless, moving from motel to motel, had no telephone and used a cousins address as her mailing address. A visit with the children on April 8 went well.

In June, the Department reported appellant was still homeless, and, in the last two months, had provided it with three different addresses and telephone numbers. Appellant missed two of her four drug tests; the ones she took were negative.

At the June jurisdictional hearing, the court sustained the petition and declared the children to be dependents of the court. The court ordered the children were not to be separated absent emergency notice to all counsel. The court ordered appellant to submit six drug and alcohol tests (and complete a substance abuse program if she missed a test or tested dirty). The court ordered appellant to complete a parenting education program and enroll in individual counseling to address domestic violence and anger management. The court ordered appellants visits be monitored. The court found Juan L. was the alleged father of Santiago, Santiago A. was the alleged father of Jesus, and Juan Q. was the alleged father of Jennifer.

The September report stated appellant was participating in individual counseling, parenting classes, life skills development classes, and drug and alcohol treatment and testing. All nine of appellants drug and alcohol tests were negative.

Appellant was still having difficulty maintaining a stable home. The Department provided appellant with referrals for shelters and explained to her that at a shelter, she would receive case management and day care services and employment and job training and could start having overnight visits. Appellant rejected the idea of going to a shelter. In July, appellant advised the social worker that Eduardo had agreed to assist her in getting an apartment. In September, appellant said she was ready to enter a shelter. The social worker advised appellant to contact the referrals she had been given and said she (the social worker) would transport appellant and help with intake. Appellant telephoned later that day and said she had contacted the shelters and there were no openings. The social worker then contacted the shelters and learned there were multiple openings.

Then appellant reported she had a one-bedroom apartment and Eduardo was paying the rent. The social worker encouraged appellant to obtain housing independent of Eduardo. The foster family agency social worker reported that on September 1, appellant had come to a visit with bruises on her face and a black eye. Appellant explained that when she and Eduardo were out to dinner, she had been involved in an altercation with three unknown females who believed she was involved in a gang.

Appellant regularly visited the children at the foster family agency, and she and the children appeared to enjoy the visits. The foster mother reported Santiago had disclosed appellant had told him she had an apartment and was hopeful the children would be returned to her at the next court hearing. Later that day, while the children and foster parents were having dinner, Santiago became emotional and began crying hysterically and began vomiting when he was taken to the bathroom. Santiago said he missed his mother and Eduardo and it made him sad to see her cry when the visits ended.

Appellant was in partial compliance with the case plan. The social worker did not believe appellant was able to implement any skills she had learned as appellant refused to enter a shelter and continued to rely on others to meet her needs. Dr. Harry Reece, appellants therapist, provided appellant with an employment referral, but appellant was not interested in employment because she expected to receive Aid to Families with Dependent Children when the children were returned to her.

The social worker believed appellant loved her children and wanted to be an effective parent, but she had failed to demonstrate the ability to obtain and maintain a stable home for the children. The Department recommended six more months of reunification services. Appellant requested a contested hearing on the issue of returning the children to her or beginning overnight visits. The court set a contested hearing.

On October 13, the social worker met appellant at the apartment. The apartment had no furnishings. There was no refrigerator, stove, heater, storage area for food, beds, bathroom or kitchen. Appellant and Eduardo slept on the floor and shared a community kitchen and bathroom. The social worker informed appellant that if her request for overnight visits was approved, Eduardo could not be present because he had not submitted to a criminal background check. Appellant stated Eduardo had no family or friends he could stay with during weekend visits. The last time the issue had been discussed, appellant said Eduardo could stay with a cousin who resided around the corner from her home. Eduardo was an undocumented alien and did have the necessary identification for a background check; he obtained employment by using other peoples identities. The social worker suggested Eduardo apply for temporary citizenship, but he was unwilling to do so. The social worker believed unmonitored contact with Eduardo would place the children at risk because they had seen him strike appellant.

When the social worker advised appellant she had located the fathers of Santiago and Jesus, appellant said if the children were placed with their fathers, she would commit suicide. Appellant had previously stated she did not know the whereabouts of the fathers. After being informed the fathers had been located, appellant revealed she had known where they were. The social worker continued to believe that appellants situation and judgment skills had not improved and that appellant had gained little insight into effectively parenting her children and was not able to appropriately care for the children.

Dr. Reece reported appellant had been keeping track with the requirements of her program and had completed an anger management class and was enrolled in a 16-week parenting class. Dr. Reece was concerned that appellant was unemployed, had no stable income and relied on Eduardo and food stamps. He believed appellant needed more educational and job preparedness skills so she could become self-sufficient. Dr. Reece recommended appellant start having overnight and weekend visits.

Juan L., Santiagos father, attended the November hearing and asked the court for visits. Appellant withdrew her request for a contested hearing and asked the court to grant the Department discretion to allow overnight visits. Counsel stated appellant understood Eduardo was one of the biggest impediments to the return of her children. The court granted the Department discretion to start overnight visits and ordered monitored visits for Santiago and his father.

In November, Eduardo was arrested and charged with domestic battery. Appellant stated Eduardo became jealous because she accepted a ride home from Santiagos father. The police report indicated Eduardo and appellant engaged in a verbal argument in the house, appellant went outside to defuse the situation, and Eduardo followed her and continued to argue. Eduardo attempted to strike appellants face, but she covered her face and the blow struck her left forearm. Eduardos cousin Rodrigo, who lived with them, was present and tried to calm Eduardo. Appellant asked Rodrigo to get her purse so she could leave. As Rodrigo was leaving the apartment, Eduardo confronted Rodrigo and struck him in the face. The police report was based on statements made by appellant and Rodrigo. Later, when appellant was asked about the incident, she claimed the police lied and Eduardo only yelled at her and called her names. Appellant remained with Eduardo after his release from jail because she did not want to be alone during the holidays and he had promised not to hit her anymore.

II. 2006

In January, the director of appellants drug treatment program reported that during November and December, she arrived at the program with bruises on her face and arms. Appellant was living in a garage that had been converted into a one-room apartment; the rent was $350 a month. Appellant said Eduardo was helping her pay rent, but he did not live there. Appellant worked part time and earned $40 a week. The social worker visited the new residence. The apartment had beds for Santiago and Jesus. Appellant stated Eduardo was going to buy a bed for Jennifer and a refrigerator. Appellant assured the social worker that Eduardo did not reside at or visit her new residence, he lived in Riverside, and she had not had any contact with him. During the visit, Eduardo appeared and asked appellant to give him his jacket.

Although appellant continued to participate in her program, she also continued to deny and minimize the problems which required court jurisdiction. When told that Santiago and Jesus said they were frightened and sad when appellant and Eduardo fought and Eduardo hit her, appellant responded the Department had brainwashed the children and told them to be afraid. Appellant said she and Eduardo had disagreements, but he never hit her.

Santiagos father asked to have Santiago placed with him. The children remained placed together and were thriving in foster care. The foster parents had an approved adoptive home study and were committed to adopting all three children if they were not reunited with their parents.

The Department recommended termination of reunification services. Appellant opposed the recommendation and asked for another contested hearing. The court continued the hearing and ordered that Santiagos father could have visits in his home if his wife was shown not to have a criminal record and the home was appropriate.

The April report indicated appellant had completed domestic violence counseling and parenting, but had not completed individual counseling. Appellant claimed she was no longer involved with Eduardo. The social worker believed appellant was still unable to protect the children. The children frequently reported they wished appellant could visit with them so the foster parents could take care of her too. The foster parents reported appellant frequently became tearful at the end of the visits and occasionally her sadness escalated into rage and she would scream at the foster parents.

The AA/NA/CA attendance sheets indicated appellant attended meetings from October 2005 through January 2006. The letter from Our Homes By Anita, Inc. stated appellant had attended a one-year course of alcohol and drug studies, life skill classes and individual counseling. Because appellants Medi-Cal insurance was cancelled, her individual therapy with Dr. Reece stopped; however, she continued to participate in individual and group therapy with counselors at the clinic.

The home of Santiagos father was appropriate for visits, but the Department did not recommend visits until it received the results of his wifes criminal background check as she had assaulted him seven years previously. The court ordered the Department to address the issue in its report for the next hearing.

At the April hearing, the court admitted several documents into evidence. Attached to one report was a suspected child abuse report filed by the childrens therapist; in November, Santiago had witnessed a physical altercation between appellant and Eduardo. Eduardo was driving with all three children in the car. The altercation occurred while the car was moving. Appellant was in the back seat screaming at Eduardo, and Eduardo turned around and slapped her in the face more than once. The boys were afraid Eduardo would become violent again.

The court found appellant was in compliance with the case plan, but she had not made significant progress in resolving the problems that led to the removal of the children. The court terminated appellants reunification services.

The Department subsequently recommended Santiago start overnight visits in his fathers home, and the court ordered the visits and set a hearing to address whether Santiago should be released to his father. Based on the recommendation of the childrens therapist, the Department also asked that the frequency of appellants visits be changed from two-hour weekly visits to one hour every other week. The therapist believed that the visits had a detrimental affect on Jesus because appellant ignored him and focused her attention on his siblings, which angered Jesus. Immediately after the visits, Jesus would act out by not talking and not listening to his caretakers and by instigating verbal altercations with Santiago. The therapist also believed the visits had a detrimental affect on Santiago because appellant repeatedly stated she loved and missed him and continually asked him to tell her that he loved and missed her. Santiago would become emotionally overwhelmed by his concern for appellant. After the visits, Santiago initially became withdrawn and then would act out by refusing to obey or listen to the caretakers.

The foster family agency social worker who monitored the visits reported that during the May 25 visit, appellant again ignored Jesus and focused her attention on Santiago. Jesus initially did want to attend the visit, but rather, he wanted to have dinner with the foster mother. When the social worker advised appellant of Jesuss wish, appellant became defensive and stated that the foster mother and the social worker were responsible for Jesus not wanting to visit. When appellant was told Santiago also did not want to attend the visit initially because it conflicted with his schools open house, appellant became confrontational with him and asked if it was true that he did not want to see her again. Even after the social worker explained Santiago had meant only the one visit, appellant continued to make inappropriate comments in Santiagos presence. Santiago appeared to be afraid. Appellant accused the foster mother and the social worker of being liars and coaching her children to not want visits. When the social worker advised appellant the visit would be terminated if she did not calm down, appellant responded she would not leave no matter what the social worker said. Appellant then hugged Santiago and began to cry very loudly on his shoulder, which made him cry. Appellant then hugged Jesus and Jennifer and told them goodbye and walked out of the visit leaving Santiago sad and crying.

The childrens attorney advised the court she was also aware that appellants crying during the visits was traumatic for the children, and she joined in the request to lessen the frequency of the visits. On June 1, the court changed appellants visits to two, one-hour visits a month.

In July, the social worker reported Santiago indicated that he wanted to be placed with his father. The Department recommended Santiago be released to his father.

III. The Section 388 Petitions

On July 14, appellant filed a section 388 petition requesting that she be allowed home of mother, overnight visits and further reunification services.

At the hearing, the childrens attorney joined in the Departments request to deny the petition. The court denied the petition and found appellant had not made sufficient progress and it was not in the childrens best interest to either place them with appellant or reinstate reunification services. The court noted that any future section 388 petitions should be accompanied by a report from an individual counselor who has a familiarity with the entire case history.

Appellant filed a timely notice of appeal from the August 30 order denying her section 388 petition.

In November, the Department reported the social worker had been unable to assess the home of Santiagos father because the address he provided could not be located. The social worker reported the children were thriving in the home of their prospective adoptive parents. Santiago and Jesus stated that what they liked best about their home was that the caretakers take good care of them and that they have lots of friends at their current school. The boys also liked playing on the school soccer team and being in boy scouts.

On November 20, the court ordered Santiago be placed with his father. The court then granted appellants request for a continuance so she could file another section 388 petition based on documents she had shown her attorney for the first time that day. Appellant filed the petition that afternoon. The court denied the petition without a hearing noting it had denied a similar petition on August 30 and the letter from the therapist was based on two visits and did not contain any indication the therapist had any information about the case other than what appellant had told him.

IV. Termination of parental rights

Appellants attorney asked the court to appoint separate counsel for Santiago because it was no longer being recommended that parental rights be terminated as to him. The childrens attorney opposed the request and indicated that Santiagos father and the prospective adoptive parents were going to allow the children to continue to have contact with each other. The court denied the request and commenced the section 366.26 hearing.

Appellant testified she visited Jennifer and Jesus twice a month at the foster family agency office and the visits were monitored. During the visits, appellant and the children played games. Jesus would tell appellant what he did at school. The children called her mom. Appellant took care so they would not get hurt and feed them food provided by the agency. Appellant changed Jennifers diapers. Jesus and Jennifer competed for appellants attention.

Jesus and Jennifer had been out of appellants care for about two years, and, for the entire time, her visits were monitored. Appellant argued her parental rights should not be terminated because of the parent/child exception in section 366.26, subdivision (c)(1)(A). The childrens attorney joined in the request to terminate parental rights. The court terminated appellants parent rights as to Jesus and Jennifer.

Appellant filed three notices of appeal from the November 20 order denying her section 388 petition and terminating her parental rights. This court consolidated those appeals.

DISCUSSION

I. First Section 388 Petition

Appellant contends the juvenile court abused its discretion when it denied her first section 388 petition which requested home of mother, overnight visits or reinstatement of reunification services as to all three children. Appellant argues she had complied with the case plan, stabilized her life, terminated her relationship with her abusive boyfriend, and the children wanted to live with her.

After the court terminates reunification services, as here, the parents interest in the care, custody and companionship of the child is longer paramount, the focus shifts to the needs of the child for stability and permanent placement; there is a rebuttable presumption that continued foster care is in the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Angel B. (2002) 97 Cal.App.4th 454, 465 [particularly when such placement is leading to adoption by the long-term caretakers.].)

A. Background

The petition alleged circumstances had changed since the February 7, 2005, placement order[2]in that she was employed, had completed outpatient alcohol and drug treatment, a 20-week parenting course, 80 hours of anger management, attended AA meetings regularly and visited the children regularly. The petition also alleged it was in the childrens best interest because Santiago would soon be placed with his father, and granting petition would preserve the sibling relationship.

The Department filed a report in response to the petition. The report acknowledged appellant was in partial compliance with the case plan, but had not completed individual counseling, had stopped drug testing and continued to behave aggressively towards the foster parents and the foster family agency social worker. The report stated appellant continued to struggle to meet the childrens emotional needs and she had not internalized and implemented the skills she had been taught. Although appellant claimed she had terminated her relationship with Eduardo, she had made that claim before and it turned out to be false. In the past, appellant had denied Eduardo had ever assaulted her. The Department was concerned about Santiagos disclosure that his father had taken him to appellants home and told him that if he told anyone, his father and mother would go to jail.

After a hearing at which the court admitted Department reports and documentary evidence presented by appellant, the court denied the petition on the basis that appellant had not made enough progress in resolving the problems which led to the courts jurisdiction and it was not in the childrens best interest to grant the petition.

B. The court did not abuse its discretion when it denied the petition.

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.)

In In re Kimberly F. (1997) 56 Cal.App.4th 519, 532, the court summarized the factors a court should consider 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.)

The court had sustained the allegations of the dependency petition that appellant had a history of substance abuse rendering her incapable of providing regular care for her children, had created an endangering home environment, had failed to obtain dental, medical or visual care for the children, had failed to ensure Santiagos regular attendance in school, and had failed to provide the children with the basic necessities of life.

The evidence adduced at the hearing was strictly Department reports and the documents submitted by appellant. As support for the alleged change in circumstances, appellant attached the following documents to her section 388 petition: a June 30, 2006, letter for Our Homes By Anita, Inc. (Our Homes), a counseling and treatment service, documenting her completion of an outpatient alcohol and drug treatment program, her current participation in an aftercare program twice a week, and her having learned to keep a budget and recently getting a better job; a letter from an employer;[3]several pages of AA attendance sheets from October 2005 to June 2006; a certificate of completion of a 20-hour parenting class; a March 27, 2006, letter from Our Homes stating appellant was continuing in individual counseling and outpatient substance abuse treatment, had previously seen Dr. Reece for individual counseling, and had attended classes in domestic violence, anger management, parenting, and life skills, was currently employed and receiving income from supplemental relief and was managing her budget and buying food; and a certificate for 80 hours of anger management.

At the hearing, appellant introduced an August 21, 2006, letter from Our Homes stating she was currently attending maintenance and counseling, taking random drug tests with no positive tests and had continued to manage her funds, keep an apartment and maintain employment; an additional AA attendance sheet showed attendance at a July meeting; and a certificate for completion of 100 hours of a domestic violence class.

Appellant insists she visited consistently and had strong bonds with the children, was nurturing and no serious problems or incidents occurred during the visits. The record shows otherwise. Even though appellant visited consistently, her visits were a bare minimum; she started out at two hours a week. In November 2005, the court granted the Department the discretion to give appellant overnight visits. In June 2006, at the request of the Department and childrens counsel, the court reduced the visits to one hour every other week because, as discussed above, of inappropriate behavior by appellant which was distressing Santiago and Jesus and causing them to act out. Apparently appellant waited until her July 2006 petition, filed 18 months after the children were detained and 7 months after the Department was given discretion to permit overnight visits, to request overnight visits. At the time of the section 388 hearing, Santiago wanted to be placed with his father, and Jesus wanted to be adopted by his foster parents.

Appellant was stabilizing her life; she had taken the classes ordered by the court, but had not yet completed her individual therapy. There was no indication appellant still had a drug or alcohol problem. However, compliance alone is not determinative of whether a section 388 petition should be granted; the court had a duty to evaluate appellants efforts and prior failings, particularly her denial of any abuse by Eduardo, and the likelihood of her ability to care for and protect the children. (See In re Brian R. (1991) 2 Cal.App.4th 904, 918.)

The social worker expressed doubt about appellants ability to protect the children or implement the skills she had learned. Appellant had paid rent of $450 a month since November 2005. Although appellant claims on appeal that she had broken up with her abusive boyfriend, she adduced no evidence (no affidavit or testimony) to that effect. In addition, the proof of appellants employment was a bit vague. Appellants documentation was of prior employment at the end of 2005. The April Department report included a letter from an employer indicating employment as of March 2006 at $100 a week. Although the letters from Our Homes indicated appellant was currently employed; there was no documentation of her current hours or salary.

Even though the court looks to the change of circumstance or new evidence since the order the parent seeks to modify, in this case the court terminated appellants reunification services in April because she had not made significant progress in resolving the problems that led to the removal of the children. Other than two additional letters from Our Homes, the documentary evidence attached to the section 388 petition was basically the same as at the time the court terminated services. Appellant did not testify at the hearing, and thus she did not offer the court any reassurances to contradict that finding. In other words, although appellant was complying with the case plan and becoming ready to parent her children, she had not ameliorated the problems of her inability to protect her children and provide them with regular care and the basic necessities of life.

Moreover, the children had been in foster care for a long time, and the court had to consider the detriment of terminating that relationship. (See In re Jasmon O. (1994) 8 Cal.4th 398, 418-421.) The Department reports indicated the children were thriving in foster care and the foster parents wanted to adopt them and had an approved adoptive home study. Accordingly, appellant did not present changed circumstances or new evidence of a significant nature justifying a modification of the February 7, 2005, order.

Furthermore, citing In re Daijah T. (2000) 83 Cal.App.4th 666, 674-675, appellant claims maintaining the sibling relationship was in the best interest of the children. The issue in Daijah T. was whether the mother was entitled to a hearing on her section 388 petition. The court referred to another case in which a section 388 petition alleged that a mother with a history of mental illness had demonstrated changed circumstances because she had regularly participated in psychotherapy, had regularly visited with the child, held a full-time job, and was ready, capable and able to provide for the child on a full-time basis, entitling the mother to an evidentiary hearing. (Id., at p. 674.) There was no evidence appellant was ready, capable and able to provide for her children in addition to supporting herself.

After reunification services have failed, it is not only important to seek an appropriate permanent solution -- usually adoption when possible -- it is also important to implement that solution reasonably promptly to minimize the time during which child is in legal limbo. A child has a compelling right to a stable, permanent placement that allows a caretaker to make a full emotional commitment to the child. (Original italics.) (In re Celine R. (2003) 31 Cal.4th 45, 59.)

II. The Second Section 388 Petition

A. Background

The second section 388 petition also sought to modify the February 7, 2005, placement order and requested that Jesus and Jennifer be placed with appellant or that appellant receive further reunification services. The alleged changed circumstances were basically the same as those alleged in the prior section 388 petition, i.e., that appellant had employment, had completed an outpatient alcohol and drug program, was attending AA meetings regularly, had completed 20 weeks of parenting classes and 80 hours of anger management counseling, visited the children regularly, and had begun individual counseling with Dr. Jay Wung. The petition alleged the requested relief would be in the childrens best interest because Santiago was living with his father and returning the other children to appellant would maintain the sibling relationship.

The court considered the petition and summarily denied it without a hearing. The court explained it had denied a similar petition on August 30 and advised appellant that any future petitions were to be supported by a report from an individual therapist familiar with the entire case and there was no such report. The court noted the Dr. Wungs letter, which was attached to the petition, was based on two visits, and there was no indication that he had any information about the case other than what appellant had told him.

B. The court did not abuse its discretion when it denied a hearing on the

second petition.

If the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing. The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing. A prima facie showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited. (Citations omitted.) (In re Daijah T., supra, 83 Cal.App.4th at p. 673.)

A party filing a section 388 petition is not automatically entitled to a full hearing on the motion. If the petition fails to state a change of circumstances that might require a change of order, the court may deny the application ex parte. (Cal. Rules of Court, rule 5.570(b).) The petition is addressed to the sound discretion of the juvenile court and its discretion will not be disturbed on appeal in the absence of a clear abuse of discretion. (In re Jasmon O., supra, 8 Cal.4th at p. 415; see also In re Jamika W., supra, 54 Cal.App.4th at p. 1451 [The denial of a petition without a hearing is reviewed for an abuse of discretion keeping in mind the change of circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged prior order.].)

Thus, whether appellant made a sufficient showing entitling her to a hearing depends on the facts alleged in her petition, as well as the facts established as without dispute by the courts own file. (In re Angel B., supra, 97 Cal.App.4th at p. 461.) [C]ases have held that simple completion of the kinds of classes taken by the mother . . . does not, in and of itself, show prima facie that either the requested modification or a hearing would be in the minors best interests. (Id., at p. 463.)

Without evidence appellant would be able to assume custody and/or provide suitable care, at most, she established changing circumstances. A mere prima facie showing of changing . . . circumstances was not enough to require or justify a hearing on return of the child. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.)

Appellant filed her second section 388 petition just three months after the court had a hearing on and denied her first section 388 petition. Appellant incorporated the documentary evidence from her first petition. The only new evidence was a letter from Dr. Wung, who had had only two sessions with appellant, and another letter from Our Homes dated November 17, 2006. Appellant suggests those letters satisfied the courts requirement that any future petition had to be accompanied by a report from an individual counselor who has familiarity with the entire case history. The court specifically stated there was no such report.

The letter from Our Homes indicates that appellant is attending counseling and testing negative, and is truly dedicated to the well being of her children and does not pose a danger to them. She does not present any violent tendencies. The other information in that letter was the same as in the letters from Our Homes submitted as part of the first petition. In essence, Dr. Wung reaches the same conclusion that appellant is not a danger to her children. Neither letter contains any analysis of appellants relationship to her children or her ability to take care of them other than not being a danger to them. There was no indication of her progress in counseling and classes as opposed to her attendance at those sources. Our Homes description of appellant as calm and cooperative was contradicted by the description of appellants behavior at visits contained in the Department reports.

However, not being a danger to children is not the same thing as being able to parent them. Appellant did not adduce any evidence to refute the Departments evaluation that she had not implemented the skills she had learned or the courts implied finding she lacked the ability to protect and care for the children.

Perhaps such a showing earlier in a dependency proceeding might justify additional services, but in the context of the entire proceedings in this case, especially as the court had just held a contested hearing on overnights visits or reinstatement of reunification services, appellant did not made a prima facie showing justifying another hearing on returning the children to her custody or providing her with more reunification services.

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

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

Appellant contends there was no substantial evidence supporting the courts finding the section 366.26, subdivision (c)(1)(A) exception did not apply. 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.)

Although 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.)

The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the childs life spent in the parents custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the childs particular needs. (Fn. omitted.) (In re Angel B., supra, 97 Cal.App.4th at p. 467.)

Appellant argues her regular contact with her children and their happiness in seeing her and their affection towards her was adequate to substantiate a finding under this exception and that she acted as a mother within the confines of the visits she had. Appellant is mistaken. Even though appellant regularly visited her children, not only were the visits brief, they became even briefer because of inappropriate behavior on her part, and they never progressed beyond monitored visits. In addition, the visits had a negative effect on Jesus (and on Santiago who was not named in this petition). The boys acted out after the visits. Appellant had not assumed a significant parental role in the lives of Jesus and Jennifer.

Citing various articles, appellant suggests that the children should have relationships with more than one set of caretakers. Appellant also urges that guardianship would provide the stability they need and adoption is not the answer as it can be illusionary. Appellants argument are better addressed to the Legislature which has determined adoption is the preferred answer. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419 [The Legislature had decreed, however, that guardianship is not in the best interests of children who cannot be returned to their parents.].)

DISPOSITION

The orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

PERLUSS, P.J.

ZELON, J.

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

[2] The Department incorrectly argues that in order to grant the petition, the order that needed to be changed was the April 25, 2006, order terminating reunification services; section 388 permits a parent to challenge any prior order. In this case it may be a distinction without a difference because appellant did not show additional changes since the April order to justify reinstatement of services.

[3] The employer stated appellant had worked for her assisting her in home maintenance from October 9 to December 31, 2005, for $75 a week. Attached to the April Department report was a letter dated March 27, 2006, from another employer stating she employed appellant as a babysitter starting on January 1, 2006, at $100 a week.