In re Gabriel R.

Filed 3/11/10 In re Gabriel 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 an order of the Superior Court of Los Angeles County, Debra Losnick, Juvenile Court Referee. Affirmed.

M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel and Kim Nemoy, Senior Deputy County Counsel for Plaintiff and Respondent.

I. INTRODUCTION

Valerie R., the mother of Gabriel R. and Xavier R., appeals from a Welfare and Institutions Code^[1]section 366.26 parental rights termination order. The mother contends: it was error to deny her section 388 petition without a hearing; and because she satisfied the section 366.26, subdivision (c)(1)(B)(i) beneficial relationship exception, it was error to terminate her parental rights. We affirm the parental rights termination order.

II. BACKGROUND

The Department of Children and Family Services (the department) investigated an August 20, 2007 emotional abuse allegation concerning one-year-old Gabriel R. The mother was 17 years old and had dropped out of school. The father, Austin R., was 19. The parents were not married. Neighbors had complained that the parents argued, smoked methamphetamine and fought over drugs; further, they had seen the mother with bruises. Law enforcement officers had responded to the parents studio apartment on July 31, 2007 and August 10, 2007 due to reports of hitting, screaming and arguing. Both parents had criminal histories, including assaultive conduct by the mother. Gabriel was in need of immunizations. The parents were uncooperative and did not respond to a department social workers multiple attempts to contact them. On one occasion when a social worker confronted the mother in person, the mother claimed to be a maternal aunt. On September 18, 2007, department social worker Lilia Aguirre found the parents apartment in disarray. The father was hostile to her. On October 4, 2007, Ms. Aguirre found the apartment was unclean; moreover, the child was drinking rotten milk from a bottle; and there was no fresh milk in the home. Based on the fathers behavior, she suspected he was under the influence of drugs. Thirteen-month-old Gabriel was detained.

The department filed a section 300 petition on October 10, 2007. Also on October 10, 2007, the juvenile court found a prima facie case for detaining the child. The court order the department to provide family reunification services to the parents. The juvenile court placed Gabriel in foster care.

There was evidence the parents had engaged in domestic violence, including in the childs presence. A September 24, 2007 police report reflected: the parents had been arguing due to the father being intoxicated; the father became enraged when the mother asked him to leave the apartment; he grabbed her by the hair and pulled her to the floor; he dragged her by the hair; he stood over her and said, You[re] nothing but a little ho!; and he kicked her in the stomach. The mother described the incident in detail to Kimberly Cardozo, a department social worker. The mother said: the parents had become involved in a verbal argument; the father pushed her and pulled her hair; she asked him to take her to her parents home; the father, who had been drinking, and with the child in the car, drove recklessly and raced another vehicle; the mother was afraid they would crash; she yelled at the father to stop and let her out; he complied, but refused to allow her to take Gabriel with her; she got back into the car and they returned to their apartment; the argument escalated; the father pushed her, kicked her in the stomach, grabbed her arms forcefully, and pulled her hair; he threw furniture and clothing around the home. The mother filed a police report and took the child to her parents home. But she left her parents house with the father and child at 4 a.m. the following morning. The parents had another argument on October 4, 2007, within hours after Gabriel was detained. The mother claimed she accidentally dropped a stereo speaker from the balcony of the parents third floor apartment, which hit the fathers car and smashed a car window. On October 8, 2007, the father was arrested for spousal assault. The mother told police officers: the father had punched her in the arm and pulled her hair with both of his hands; she then followed the father to his car to try to stop him from leaving; the father grabbed her by the hair and pulled her out of the vehicle. The officers observed the mother had suffered redness, swelling and abrasions. The mother described the October 8 incident to Ms. Cardozo, who related it as follows: [The mother] stated [the father] refused to give her back her cell phone and grabbed her by the hair and dragged her out of the car. She stated she was yelling and screaming at him to stop but he would not. She stated she found a stick on the floor and began to hit [the father] as a method of trying to stop him from hurting her. She stated there was a lot of noise made between her and [the father] and the police were called and [the father] was arrested. On September 24 and again on October 8, 2007, the mother refused an emergency protective order.

There was also evidence the parents used drugs. The maternal grandmother told a social worker that the parents both used drugs and that the mother had a drug problem. The mother admitted to a department social worker that she had used methamphetamine when she was 13. She denied using drugs since that time. The maternal grandmother said the mother was using drugs approximately eight months before Gabriel was detained; the maternal grandmother knew the mother was using drugs because she lost weight and her skin was pale. The father admitted his drug use. From April through August 2007, the father had been repeatedly cited for being under the influence of a controlled substance. He had lost his job at Walmart in part due to drug use. Moreover, the father had been placed in a Proposition 36 drug diversion program. (Pen. Code, 1210, 1210.1, 3063.1; Health & Saf. Code, 11999.4 et seq.) The mother underwent four drug tests over the course of the detention proceedings as to her childrenon November 15, 2007, March 13, 2009, April 8, 2009 and April 13, 2009. The test results were negative for drugs.

On November 19, 2007, the juvenile court sustained allegations under section 300, subdivisions (a) (serious physical harm) and (b) (failure to protect): the parents engaged in physical altercations in Gabriels presence; the father had a history of substance use; in September 2007 the father placed the child in a detrimental and endangering situation by speeding and driving a vehicle in a reckless fashion with the child as a passenger, and the mother was unable to take action to protect the child; and the parents medically neglected the child by failing to obtain immunizations in a timely fashion.

On October 15, 2007, eleven days after Gabriel was detained, the mother had enrolled in rehabilitative programs at the American Asian Pacific Ministries, Inc. The programs consisted of parenting classes, which met once a week, and group anger management counseling, available three times a week. The anger management group counseling addressed domestic violence issues. On October 23, 2007, however, a department social worker, Ms. Cardozo, told the mother that she would have to attend a domestic violence program; the group anger management sessions she was attending would not suffice. On November 2, 2007, a department social worker gave the mother referrals for all recommended programs, including a domestic violence program. In the initial four months, from October 15 to February 13, 2007, the mother completed 14 group anger management sessions and 10 parenting classes. At some point, however, the mother stopped attending her programs.

On February 25, 2008, the juvenile court ordered the mother to attend domestic violence counseling, individual counseling to address case issues, and anger management. The mother signed a court ordered disposition case plan to that effect. The court granted her unmonitored visitation provided the maternal grandmother was present. On March 3, the mother reenrolled in programs. From March 3 to March 27, 2008, the mother attended 9 of 12 group sessions and 3 individual sessions; she missed 3 sessions. The mother missed 7 sessions during April 2008. But the mother denied that she had missed more than 3 sessions.

On April 1, 2008, the mother enrolled in a continuation high school. But she dropped out on April 25, after attending only 4 classes.

On April 7, 2008, the juvenile court ordered unmonitored visitation for the mother three times a week with department discretion to allow overnight visits. But the mothers visitation with Gabriel was inconsistent. She saw him only three times in March 2008, twice in April, and twice in May.

In May 2008, police officers were dispatched to the maternal great grandfathers residence where the mother was living along with the maternal grandmother. The mother had locked herself in a bedroom. The maternal grandmother said the mother was disrespectful, did not follow house rules, and was not doing her part. The maternal great grandfather asked the mother to leave his home. In January 2009, the mother reported that she was living with an aunt.

On May 6, 2008, the mother was discharged from her programs at the American Asian Pacific Ministries, Inc. due to continued non-compliance with treatment. The Assistant Clinical Director reported: On [May 6, 2008,] the client signed to drug test and was reminded several times by staff to not leave without testing. Client left the premises and did not drug test. Recommend client be considered for residential treatment or a more structured setting instead of an outpatient treatment [milieu].

On June 24, 2008, department social worker Tamatha Echevarria recommended that reunification services for the mother be terminated. Ms. Echevarria concluded: [T]he risk level continues to be at very high risk of abuse if returned home to the mother at this time. The mother . . . has not complied with court order for Individual Counseling, Anger Management, and Domestic Violence Counseling. The mother has not made reasonable efforts to achieve any high school credits during the time of supervision and continues to make poor choices when given the opportunity to participate in programs and school or hang out with friends. In addition, the mothers living situation is unstable at the time as the great grandfather has asked her to leave his home.

A six-month review hearing ( 366.21, subd. (e)) was held on August 13, 2008, ten months after Gabriel was detained. The juvenile court terminated reunification services for the mother and ordered permanent placement services. The court found, The mother is not in substantial or significant compliance. The court further ordered that the mothers visitation be monitored.

Later that same day, August 13, 2008, the mother was arrested for possession of a controlled substance. A South El Monte deputy sheriff found the mother and father arguing in a parked car. The father had a visible bruise on his lip. The deputy sheriff searched the mothers purse with her permission and found a clear plastic baggie containing an off-white crystallized substance, which the deputy recognized as methamphetamine. The mother told the officer she had snorted methamphetamine for a two-month period a year earlier, but the drugs in her purse did not belong to her and she did not know how the baggie had gotten there. The mother also told the officer she was pregnant. A medical exam confirmed the mother was three-months pregnant. The mother was in custody until at least August 18, 2008. The mother later said the charges against her had been dismissed. The department had not been able to verify the outcome of the mothers criminal case.

The department lost contact with the mother for six months, from August 13, 2008 to February 11, 2009. During this time, the mother only once requested visitation with Gabriel. She wanted to see him on Christmas day, but the visit could not be arranged.

On January 29, 2009, the mother gave birth to a second child, Xavier R. The mother had hidden her pregnancy from department social workers as well as Gabriels caregiver. After Xaviers birth, although the mother knew department social workers were trying to find him, she concealed his location. The maternal grandmother was evasive and refused to confirm or deny the pregnancy. The mother resumed visitation with Gabriel on February 9, 2009, after a six month absence. She missed a February 16 visit, but then was consistent in her visitation for the following two weeks, from February 23, 2009 to March 2, 2009. The mother denied any continuing relationship with Gabriels father, Austin R., but there was evidence to the contrary. They were together when the mother was arrested and, according to relatives, they frequently argued over the telephone.

On March 2, 2009, when questioned by Ms. Echevarria, the mother denied she had given birth to a second child. But on March 11, 2009, the mother admitted to another social worker, Belinda Marquez, that she had in fact given birth to a second child. Ms. Echevarria, who was assigned to Gabriels case, told Ms. Marquez that she had not known the mothers whereabouts for approximately six months. The mother told Ms. Marquez the child was with his father, Ynez S. However, an inspection of Ynez S.s home revealed no baby, no crib, and no baby-related items. Paternity testing later demonstrated that neither Ynez S. nor Gabriels father, Austin R., was Xaviers father. Also on March 11, Ms. Marquez located the mother and the child, Xavier, at a maternal aunts home. Following interviews with the mother and with Ynez S., the child was detained. Ms. Marquez concluded: the child was a victim of general neglect; and the mother, who was only 18 years old, had a history of drug use (which she denied) and domestic violence, had failed to comply with court orders or to reunify with Gabriel, and was not truthful during interviews. Following Xaviers detention, the mother produced an affidavit of perpetual guardianship giving the maternal grandmother guardianship of Xavier.

On March 16, 2009, the department filed a section 300 petition as to Xavier. The juvenile court ordered that he be detained and granted monitored visitation. Xavier was placed in foster care with his sibling Gabriel.

A contested permanency review hearing ( 366.22) was held as to Gabriel on March 23, 2009. The juvenile court terminated reunification services to Gabriels father, Austin R.

As of April 2009, the mother was living with her maternal aunt and extended family. The maternal aunt was on felony probation for committing fraud to obtain aid. The maternal aunts two daughters had been arrested for trespassing, petty theft, and possession of a controlled substance. The family was known to the El Monte Police Department for their disruptive behavior in the neighborhood. The mother told a department social worker that prior to Xaviers detention, the maternal aunt had been providing daycare for him.

The mother had enrolled on December 11, 2008 in parent education classes given by the Baldwin Park Unified School Districts Adult and Community Education program. The curriculum covered substance abuse education, domestic violence, anger management and parenting. The mother was expected to attend three times a week for three hours each session. As of April 1, 2009, the mother had completed only 17 sessions. She was asked to complete her classes elsewhere. On April 1, 2009, the mothers parent education instructor, Linda C. Rodriguez, reported: Ms. R[.] has attended 52 hours (equivalent to 17 sessions) in our classes. . . . Ms. R[.] was generally a passive [sic] and tended to share more in small groups rather than to the whole class. She often was lethargic and chose not to share. [] To her credit, she stated that she recognized that her former mate started abusing her emotionally, and later physically. She now recognizes signs of abuse. She also said that she chose to leave that relationship in order to protect her child, Gabriel. [] Ms. R[.] commented that she formerly demonstrated inappropriate behaviors and that she now maintains relationships based on maturity and self-control. She is confident that she is now a better role model for her child. [] Ms. R[.] states that she was not officially assigned to parenting classes. She was deemed capable of understanding program regulations, but often seemed to be subtly resistant and only shared passively. She has not yet finished her assigned classes. [] I have concluded that it would be in the best interest of this student if she were to complete her classes elsewhere. First, by sometimes not signing in and out of sessions, as agreed in her contract, she claimed to have attended sessions for which we had no record. This was not the case with other students on these dates. Second, she seemed detached and unable to relate to topics. Third, on several occasions, she could not stay after class to meet with me, even though I expressed the importance of meeting with one another. Unfortunately, many issues, must be deal with privately, and it would have been inappropriate to share private information about her case in front of others. The aforementioned, in addition to her claim that her homework was taken from the classroom gives us little on which to base her progress. The mother never told Ms. Rodriguez that she had a new baby or that the infant had been detained.

A contested hearing on the petition as to Xavier was held on April 6 and 20, 2009. The mother testified. She admitted she lied about the child living with Ynez S. She admitted she had tried to hide Xavier from department social workers. She said that on the day Xavier was found, the maternal aunt was babysitting him. She testified she was residing with the maternal aunt at that time, but Xavier lived with the maternal grandmother. The mother said she lied when she told department social workers that the child was living with the maternal aunt. She admitted she never mentioned the affidavit of guardianship in favor of the maternal grandmother until after the child was detained. She admitted she lied when she told Ms. Echevarria that Gabriel was her only child. The mother insisted, despite a negative deoxyribonucleic acid test, that Ynez S. was Xaviers father. She denied any drug use. She denied any ongoing relationship with Gabriels father, Austin R. Ms. Echevarria testified that after Xavier was detained, the maternal grandmother said she had been taking care of the child and the mother had never been left alone with him. Ms. Echevarria further testified the mother had never completed a domestic violence program. The maternal grandmother testified that after Xavier was born he lived with her; further, the mother was never left alone with the child. The juvenile court sustained allegations as to Xavier under section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling): the mother had a history of illicit drug use, including methamphetamine; the childs sibling, Gabriel, was receiving permanent placement services; the mother and her former male companion, Gabriels father Austin R., had a history of engaging in violent altercations in Gabriels presence, and Gabriel was receiving services due to his parents domestic violence.

In April 2009 the mother enrolled in a 10-week drug program and a 10-week anger management program offered through the El Monte Police Departments Community Relations Office. On May 5, 2009, the mother enrolled in a 52-week domestic violence program at Acacia Counseling. The department reported that Austin R.s grandfather told the childrens caregiver that the mother lived on and off in his home with Austin R. when she was pregnant with Xavier.

On May 18, 2009, the juvenile court held a contested disposition hearing as to Xavier. The court denied the mother reunification services as to Xavier due to her failure to reunify with Gabriel. ( 361.5, subdivision (b)(10).) The mothers subsequent mandate petition (Cal. Rules of Court, rule 8.452) was denied. (In re X.R. (B216187, July 14, 2009) [nonpub. opn.].)

The mother had been visiting both children as often as allowedfor two hours once a week. The foster mother reported that the visits went well and without incident. Gabriel referred to his foster mother as mom in the mothers presence. But, with the foster mothers encouragement, he referred to the mother as momma. At other times, Gabriel referred to the mother as the lady with the abc[s] because of her many tattoos. The foster mother wanted to adopt the children. She had been caring for Gabriel since January 16, 2008, when he was a year and four months old. She had been caring for Xavier since his detention. Social workers described the foster mother as extremely committed to the children.

A contested section 366.26 hearing was held on September 21, 2009, two years after Gabriels detention, and more than six months after Xavier was detained. At the outset of the hearing, the following transpired: [Mothers counsel Andrew] Rifkin: Today mother provided me information and requests that I file a 388 petition. I would ask that the court grant that petition or give me an opportunity to be heard regarding that petition today. . . . [] The Court: Well, generally it is not my practice to address 388[s] on the morning of a contested .26 hearing. It certainly isnt very timely. [] Mr. Rifkin: Well, according to the letters from mothers programs, she had completed the classes on September 17. So it is -- [] . . . [] Mr. Rifkin: . . . So she just completed the courses. . . . [M]other has complied with what the court wanted her to do. She has been visiting regularly. . . . I would have filed [the petition] sooner if I had gotten the information sooner, but the mother just completed these programs. [] The Court: Right. But the [section 300] petition for at least the one child is October 10th of 2007. So the mother has had nearly two full years to comply with this case plan. Following further argument, the juvenile court denied the petition.

In her written section 388 petition the mother requested that the juvenile court return the children to her care or reinstate reunification services because, I have been visiting my children regularly and have completed a drug program and domestic violence program. The mother asserted the change would be better for the children because, I have a strong bond with my children and they would be better off growing up in my home than in a stranger[]s home. She presented written evidence that as of September 17, 2009, she had completed City of El Monte Police Department anger management and drug and alcohol programs and had continued to attend past completion.

At the hearing, the mother testified she had been visiting her children for two hours once a week for the past six months. The visits occurred at the agency. She played with her sons and fed them, changed their diapers. She brought them food. Three-year-old Gabriel called her Mom. Upon her arrival, Gabriel always ran up and hugged her. He got mad whenever she said she had to leave. The juvenile court found the mother could not show the section 366.26, subdivision (c)(1)(B)(1) exception applied. She had seen the children only weekly. All of the visits had been monitored. She was essentially a friendly visitor to her children. The court terminated parental rights and ordered the children placed for adoption.

III. DISCUSSION

A. Section 388

The mother contends the juvenile court erroneously denied her section 388 petition without a hearing. 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 . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of 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 . . . . [] (d) If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . . The request for change must be viewed in the context of the dependency proceedings as a whole. (In re Marilyn H. (1993)5 Cal.4th 295, 307; In re Heather P. (1989) 209 Cal.App.3d 886, 891.) When, as here, 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 focus of the proceedings has shifted from the parent's interest in the care, custody, and companionship of the child to the youngster's best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Janee J. (1999) 74 Cal.App.4th 198, 211.) The juvenile court should order a hearing if the petition presents any evidence a hearing would promote the best interests of the child. ( 388; In re Jasmon O. (1994) 8 Cal.4th 398, 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 at p. 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.) But, as the Court of Appeal held in In re Casey D. (1999) 70 Cal.App.4th 38, 47, 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 interest. (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.) The parent has the burden of showing changed circumstances by a preponderance of the evidence. (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 Kimberly F. (1997) 56 Cal.App.4th 519, 526.) The decision denying a 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.)

The mother argues it was error to deny her section 388 petition without a hearing because she had demonstrated maturity and a renewed commitment to her rehabilitation, had maintained regular visitation with her children, and her interactions with them were positive. The mother emphasizes that she was very youngonly 15when Gabriel was born. She notes she not only completed the City of El Monte Police Department anger management and drug programs but continued to attend beyond her completion dates. We find no abuse of discretion. First, the juvenile court was not required to entertain an oral section 388 motion at the time set for the section 366.26 hearing. (In re Marilyn H., supra, 5 Cal.4th at p. 310; In re Baby Boy L., supra, 24 Cal.App.4th at p. 609.) Second, the mothers efforts to comply with her case plan as well as her visitation with Gabriel had been inconsistent over an extended period of time. Gabriel was a dependent of the juvenile court for more than ten months before reunification services to the mother were terminated. During that time the mother failed to seek protection from a batterer, repeatedly lied to social workers and others, inconsistently attended parenting classes and anger management counseling, failed to complete a domestic violence program, dropped out and reenrolled in programs, was inconsistent in her visitation, was twice discharged from programs for non-compliance, enrolled in a continuation high school but dropped out after attending only four classes, and was asked to leave her maternal great grandfathers house for being disrespectful and not following rules. In the following year prior to the section 366.26 hearing, the mother repeatedly lied, was arrested for possession of a controlled substance, admitted having snorted methamphetamine a year earlier, severed contact with the department and with Gabriel for six months, hid her pregnancy with Xavier from the department and Gabriels caregiver, concealed Xaviers location from social workers, lied about his existence and whereabouts, claimed to have attended substance abuse, domestic violence, anger management and parenting classes for which there was no record, and was asked to complete her classes elsewhere. When the section 366.26 hearing was held, Gabriel was three years old and Xavier was eight months old. Gabriel had been a dependent of the juvenile court for two years. He had been in a stable, now pre-adoptive home for a year and nine months. Xavier had been detained for six months in the only stable home he had ever known. The juvenile court could reasonably conclude that evidence the mother, four days prior to the section 366.26 hearing, had completed a 15-session anger management program and a 16-session drug and alcohol group was not sufficient evidence of changed circumstances such that it appeared the childrens best interests might be promoted by the proposed change of order. At best, the mother demonstrated that she might be able to reunify with her children at some future point. The juvenile court could reasonably conclude that was not enough.

B. The Beneficial Relationship Exception To Parental Rights Termination

The mother argues she satisfied the section 366.26, subdivision (c)(1)(B)(i) beneficial relationship exception and therefore it was error to terminate her parental rights. As amended effective January 1, 2008, section 366.26 provides in part: (c)(1) 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. . . . 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. Under these circumstances, the court shall terminate parental rights unless either of the following applies: [] . . . [] (B) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.

At a section 366.26 hearing, the juvenile court is required to select and implement a permanent plan for the dependent child. (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)(B)(i), a parent seeking to avoid termination of parental rights must show regular contact has been maintained with the child. Further, the parents must prove the child would benefit from continuing the parent-child relationship. The burden is on the parent to prove that termination of parental rights would be detrimental to the child. (In re Megan S. (2002) 104 Cal.App.4th 247, 251; In re Angel B. (2002) 97 Cal.App.4th 454, 466; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) The Court of Appeal has explained: [T]he parent must show more than frequent and loving contact or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent. [Citations.] (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954.) In determining whether the exception applies, the juvenile court should consider: the age of the child; the portion of the child's life spent in the parent's custody; the positive and negative interaction between the parent and the child; and the child's particular needs. (In re Amber M. (2002) 103 Cal.App.4th 681, 689; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206; In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)

We review the juvenile court's determination for substantial evidence. (In re Amber M., supra, 103 Cal.App.4th at p. 689; In re L.Y.L., supra, 101 Cal.App.4th at p. 955.) As the Court of Appeal held in L.Y.L.: The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to other appeals. If there is substantial evidence to support the findings of the juvenile court, we uphold those findings. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.) We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court's order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. (In re Autumn H., supra, 27 Cal.4th at p. 576.) The appellant has the burden of showing the finding or order is not supported by substantial evidence. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.) (In re L.Y.L., supra, 101 Cal .App.4th at p. 947.)

The mother argues: Gabrielwho had lived in her care for the first year of his liferecognized her and they had a warm relationship; her visitation with her children following Xaviers birth was consistent and loving; she was a young mother who was just growing into her own identity, with a strong commitment and deep love for her children; following a relapse she had made renewed efforts to be a mother to them despite her young age; she did not miss any visits after Xavier was detained; she brought them food, changed Xaviers diaper, played with them, read books to Gabriel; Gabriel was always excited and happy to see her and became upset when it was time for her to leave; and their time together, although limited, was quality time.

The juvenile court found the benefit of a permanent home outweighed any benefit to the children from continuing a relationship with the mother. Substantial evidence supports the juvenile courts finding the children would not benefit from continuing the parent-child relationship. The mother in recent months had pleasant visits with her children. But given the mothers failure to comply with her case plan on a sustained, consistent basis, those visits were limited and monitored. She did not and had not participated in their day-to-day lives or met their day-to-day needs. Over a two-year period from the time Gabriel was detained, the mother never moved beyond mere visitation with her children. She did not occupy a parental role in their lives. While Gabriel had spent the first year of his life in her care, he had not lived with her nor had consistent contact with her for the following two years. She had not seen him at all for a six-month period of time. Xavier had been in the mothers care only briefly as a newborn. There was no evidence the children would suffer emotional or other injury if parental rights were terminated. This was substantial evidence supporting the juvenile courts decision.

IV. DISPOSITION

The parental rights termination order as to Valerie R. is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WEISMAN, J.^*

We concur:

ARMSTRONG, ACTING P.J. KRIEGLER, J.

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

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