In re Jimmy L

Filed 4/24/06 In re Jimmy L. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977 .

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Julia Craig Kelety, Judge. Affirmed.

C.L. appeals a judgment terminating her parental rights to her son, Jimmy L., under Welfare and Institutions Code section 366.26.^[1] C.L. contends the San Diego County Health and Human Services Agency (the Agency) violated her substantive due process interest in a continued parental relationship with Jimmy by refusing to expand visitation once the Agency recommended termination of parental rights. She also maintains the Agency denied her an opportunity to present "her side of the story" as required by principles of procedural due process. C.L. contends the court erred by denying her section 388 petition and by finding the beneficial parent-child relationship exception under section 366.26, subdivision (c)(1)(A) did not apply. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Jimmy L. was born in December 2002 to C.L. and James H.^[2] After a postnatal toxicology test showed Jimmy was exposed to methamphetamine, the Agency detained him^[3] and filed a petition under section 300, subdivision (b). The petition alleged C.L. used methamphetamine during her pregnancy and James knew she was using drugs and failed to intervene. On January 15, 2003, C.L. submitted to jurisdiction.

C.L., then age 34, had a lengthy history of substance abuse. She experimented with drugs in junior high school and first tried methamphetamine in 1986, becoming an "active" user in 1989. C.L. used methamphetamine continuously from 1989. In January 2003, the court ordered her to enroll in the Substance Abuse Recovery Management System program (SARMS). C.L. complied; however, she tested positive for methamphetamine in January, February and March 2003. After a detoxification program in March 2003, she successfully completed a 10-day residential program. In April 2003, C.L. began a second out-patient program.

After her admission to the second treatment program, C.L. made substantive progress with her case plan. Jimmy was a happy, healthy child who was doing well in foster care. C.L.'s visitation with Jimmy was liberal and unsupervised. She never missed a visit. In the 12-month status review report, the social worker noted "it is very evident that [mother and child] are bonded." C.L. completed the out-patient substance abuse program in March 2004. The primary protective concern centered on C.L.'s relationship with James who tested positive for methamphetamine and did not participate in services.

In April 2004 C.L. gave birth to a baby girl, A.L., who remained in her care. C.L. reported a difficult pregnancy and postpartum depression. In the month following A.L.'s birth, she did not comply with case plan requirements or contact Jimmy. In early May 2004 the Agency reinstated supervised visitation. At the end of May, C.L. resumed therapy and other court-ordered services. She tested negative for drugs in May and June 2004.

In June 2004 Jimmy was placed with a maternal great-aunt who expressed an interest in adopting him should reunification efforts prove unsuccessful. During the summer of 2004, C.L. was not consistently compliant with SARMS. Her last contact with SARMS occurred on June 29, 2004.^[4] Nevertheless, at the conclusion of the 18-month review hearing on September 18, 2004, the Agency recommended placing Jimmy with C.L., who had custody of his brother and baby sister. C.L. agreed to terminate her relationship with James, continue therapy, accept Intensive Family Preservation Program (IFPP) services and cooperate with SARMS.

As of October 27, 2005, C.L. had not contacted SARMS. She was found in contempt and served five days in custody. On November 15, 2004, C.L. tested positive for methamphetamine. The Agency did not receive the test results until December 9, 2004. The social worker immediately went to C.L.'s home to request an "on demand" drug test. C.L. refused to test, telling the social worker she recently used methamphetamine on several occasions and the test would be positive. The social worker found conditions in the home unsanitary, cluttered and dangerous for small children. The food supply was limited. There was spoiled food on the sink, table and stove. C.L. agreed to place the children in respite care until she got "straightened out."

On December 20, 2004, after C.L. tested positive for methamphetamine, the Agency detained Jimmy and filed a supplemental petition under section 387 to remove Jimmy from C.L.'s custody.^[5] The Agency recommended C.L. demonstrate a period of sobriety before the children were returned to her care. Jimmy was placed with the foster mother who had cared for him from birth until he was about 18 months old. When he saw his foster mother after an almost six-month absence, he ran to her shouting, "Mama."

On December 20, 2004, at the detention hearing, the court authorized the Agency to allow C.L. unsupervised visitation, overnight visits and a 60-day visit with Jimmy with the concurrence of minor's counsel. After initial resistance, C.L. entered a long-term residential treatment program on January 11, 2005. She appeared severely addicted to methamphetamine. At the jurisdiction hearing, C.L. submitted on the allegations of the section 387 petition, admitting she relapsed, and requested a contested disposition hearing.

At disposition, the court noted C.L. received reunification services in Jimmy's case for 18 months and denied her further reunification services.^[6] The court set a permanency hearing under section 366.26, ordered the Agency to provide sibling visitation and verbally confirmed the December 20, 2004 visitation order.^[7]

C.L. participated in parenting classes and therapy and "made a great deal of progress in her recovery from substance dependence." She had a day-long unsupervised visit with Jimmy in February 2005 and again in March 2005.

At the end of February 2005, a social worker specializing in adoption was assigned to the case. In approximately April 2005 the social worker realized Jimmy's visits with C.L. had not been supervised. She discontinued unsupervised visitation and made arrangements to supervise weekly one-hour visits at her office. When visitation at Agency offices proved difficult to coordinate, the social worker allowed C.L.'s aunt (Aunt) to supervise one four-hour visit in April 2005.

In May 2005, C.L. visited with Jimmy twice at Agency offices. During her supervised visits, C.L. taught Jimmy colors and numbers, played with him, offered snacks and changed his diaper. She was able to supervise Jimmy appropriately and interact with the social worker. C.L. complained to the social worker about visitation at Agency offices. Her travel time was approximately one and a half to two hours each way on public transportation.

On May 25, 2005, C.L. filed a section 388 petition asking the court to vacate its order setting the section 366.26 hearing and place Jimmy in her care at the residential treatment facility or, alternatively, to expand visitation and allow additional time for reunification. On May 31, 2005, the date previously set for the section 366.26 hearing, the Agency requested a continuance to allow time for proper notice under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.), and to complete the required assessment report. (See §§ 366.21, subd. (i), 366.22, subd. (b).) C.L. requested the court address visitation issues, specifically her claim the social worker changed visitation to make it more difficult for C.L. to prove the existence of a beneficial parent-child bond. The court scheduled a special hearing.

On June 2, 2005, the court initially had the impression unsupervised visits were rescinded only because the new social worker believed the visitation order called for strict supervision. However, neither the Agency nor minor's counsel had approved the earlier unsupervised visitation; they occurred as a result of a misunderstanding of what was meant by the term "supervision." C.L. believed as long as the visits took place at the treatment facility with program staff present, the requirement for supervision was met. The Agency required one-on-one supervision. The court understood the social worker was required to supervise some visits in order to prepare her assessment report but said "visits at the program would help as well."

Despite the court's suggestion, the Agency did not recommend a change in visitation. Minor's counsel was reluctant to support unsupervised visitation. She was cautious about expanding visitation because C.L. lied about her drug use "to everyone involved in the case for months and months." The court proposed that, in addition to visitation at Agency offices, Aunt supervise visits at the treatment facility. The Agency and minor's counsel agreed; C.L. requested a trial on her request for unsupervised visitation.

Due to its schedule, the court was unable to set a hearing until July 27, 2005, the date set for the section 366.26 hearing. The court requested the parties cooperate to set specific dates and times for supervised visitation at Agency offices and at the treatment facility. C.L. complied with the court's request. A pretrial settlement conference had been scheduled for June 28, 2005; the court wanted to hear then whether visitation was "working out." The June 28, 2005 minute order does not address any issue concerning visitation.

C.L. continued to do well in residential treatment. She had supervised visits with Jimmy twice a week. Jimmy's siblings were present during visits at the treatment facility. Jimmy adored his older brother and was sweet to his little sister.

The hearings on C.L.'s section 388 petition and the permanency plan under section 366.26 were held conjointly in late July and early August 2005. Asked to explain her management of C.L.'s visitation with Jimmy, the social worker stated that, generally, it was the Agency's "unwritten policy" not to expand visits or to allow unsupervised visits unless there was a strong possibility the child would return to parental custody. If the Agency did not recommend adoption, then it would consider expanding visitation. Here, the Agency's recommendation to terminate parental rights was based on C.L.'s lengthy history of substance abuse, her relapse during the reunification period after extensive services, her ability to hide drug use and the short time she had remained sober. In addition, Jimmy was closely bonded with his foster mother with whom he had lived all but six months of his life. The foster mother loved Jimmy and wanted to adopt him. Were the foster mother to adopt Jimmy, she would allow C.L. continued contact and visitation.

The court denied C.L.'s section 388 petition, finding it would not be in Jimmy's best interests to remove him from a safe, secure home and place him with C.L., whose circumstances were not yet stable. The court found C.L. regularly and consistently visited Jimmy, and they shared a bond, but that bond did not outweigh the child's need for the permanency provided by adoption. The court determined Jimmy's relationship with his siblings did not provide an exception to termination of parental rights. Jimmy was adoptable and adoption would not be detrimental to him. The court terminated C.L.'s and James's parental rights to Jimmy.

DISCUSSION

Introduction

C.L. contends her due process right to a continued parental relationship with Jimmy was violated by the Agency's policy not to expand visitation or allow unsupervised visitation once the Agency recommended termination of parental rights. She argues the Agency structured visitation to impede the development of a stronger parent-child relationship and foreclose Jimmy's return to her care. She maintains the Agency did not allow her to present a case for unsupervised visitation. C.L. contends the court abused its discretion when it did not place Jimmy in her care at the section 388 hearing. Finally, she challenges the court's finding under section 366.26, subdivision (c)(1)(A) that Jimmy's interest in adoption by his foster mother outweighed the continuation of the parent-child relationship.

The Agency denies the change from unsupervised to supervised visitation rose to the level of a due process violation because (1) C.L. was never denied visitation with Jimmy, satisfying minimum requirements imposed by principles of substantive due process, and (2) C.L. received notice and an opportunity to be heard on the issue of visitation, meeting procedural due process requirements. The Agency asserts the court correctly denied C.L.'s section 388 petition and terminated parental rights under section 366.26.

I

Due Process of Law

A

The Constitutional and Statutory Framework for Visitation in Dependency Proceedings

A parent's interest in the companionship, care, custody and management of his or her children is a fundamental civil right protected by the due process guarantees of the Fourteenth Amendment to the United States Constitution. (In re B.G. (1974) 11 Cal.3d 679, 688.) Children, too, have a compelling independent interest in belonging to their natural family. (Adoption of Kay C. (1991) 228 Cal.App.3d 741, 749.) However, in dependency proceedings, these interests are balanced against the child's significant interest in living free from abuse and neglect in a stable, permanent placement with an emotionally committed caregiver. (In re David B. (1979) 91 Cal.App.3d 184, 192-193.) The applicable statutes governing parental visitation in dependency proceedings are grounded in the fundamental interests of both parent and child to a continued relationship. (See In re Dakota H. (2005) 132 Cal.App.4th 212, 232.) "Visitation rights arise from the very 'fact of parenthood' and the constitutionally protected right ' "to marry, establish a home and bring up children." ' [Citation.]" (In re Julie M. (1999) 69 Cal.App.4th 41, 49.)

In California, a reunification plan must provide for visitation between parents and children that is "as frequent as possible, consistent with the well-being of the child." (§ 362.1, subd. (a)(1)(A).) Visitation between a dependent child and his or her parents is an essential component of a reunification plan, even if actual physical custody is not the outcome of the proceedings. (In re Luke L. (1996) 44 Cal.App.4th 670, 679; In re Emmanuel R. (2001) 94 Cal.App.4th 452, 462-463; In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1138.) Limitations on visitation "may not exceed those necessary to protect a child." (§ 361, subd. (a); see In re Dirk S. (1993) 14 Cal.App.4th 1037, 1046 [applying section 361 to limitations on visitation].)

Once family reunification is no longer the primary goal, the state interest requires the court to focus on the child's placement and well-being, rather than on the parent's challenge to custody. (In re Marilyn H. (1993) 5 Cal.4th 295, 307.) The focus of dependency proceedings shifts from the parent's interest in reunification to the child's interest in permanency and stability. (Id. at p. 309.) Nevertheless, the parent and child retain the right to visitation even if reunification is not the anticipated outcome. (§§ 366.21, subd. (h), 366.22, subd. (a); see In re Luke L., supra, 44 Cal.App.4th at p. 679; In re Emmanuel R., supra, 94 Cal.App.4th at pp. 462-463; In re Nicholas B., supra, 88 Cal.App.4th at p. 1138.)

After reunification services are terminated, the court is required to continue to permit a parent to visit the child unless it determines visitation is detrimental to the child. (§§ 366.21, subd. (h), 366.22, subd. (a).) If the court selects a permanency plan other than adoption at the section 366.26 hearing, it is required to make an order for parental visitation unless it finds visitation would be detrimental to the physical or emotional well-being of the child. (§ 366.26, subd. (c)(4)(C).)

The power and responsibility to regulate visitation rests in the judiciary. (In re Jennifer G. (1990) 221 Cal.App.3d 752, 754; In re Shawna M. (1993) 19 Cal.App.4th 1686, 1690; In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374.) The court must determine whether visitation should occur and then provide the Agency with visitation guidelines, including any limitations or conditions. (In re Danielle W. (1989) 207 Cal.App.3d 1227, 1237.) The court may or may not define the frequency and length of visitation. (In re Shawna M., supra, 19 Cal.App.4th at p. 1690; In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008-1009; In re Moriah T., supra, 23 Cal.App.4th at pp. 1373-1374.) The court may delegate "ministerial tasks of overseeing the right [to visitation] as defined by the court" to a child protective services agency. (In re Jennifer G., supra, 221 Cal.App.3d at p. 757.) The Agency, within the guidelines established by the court, has flexibility in managing visitation. (In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1476.)

B

The Order for Visitation and C.L.'s Visitation with Jimmy

The court order of December 20, 2004 reads: "The social worker has discretion to lift supervision of the mother's visitation, expand to include overnights, and to initiate a 60 day visit, each with concurrence of minor's counsel." At the section 387 disposition hearing on February 4, 2005, the court stated, "And I do confirm the existing visitation orders, and further adopt the specific orders set forth in the [Agency's] January 12th report and make them the order of the court."^[8]

Between December 15, 2004, and January 6, 2005, C.L. visited Jimmy twice. The record does not reflect whether these visits were supervised or unsupervised. C.L. had a day-long unsupervised visit with Jimmy in February 2005 and one in March 2005. In April 2005 the adoptions social worker set up supervised visitation one hour a week at her office in San Diego and authorized one four-hour visit supervised by Aunt. The visits at Agency offices did not always occur as planned due to scheduling and travel logistics, communication problems and last minute disruptions. In May 2005 C.L. and Jimmy had two visits supervised by the social worker at Agency offices. After the special visitation hearing on June 2, 2005, C.L. and Jimmy visited twice each week, once at Agency offices supervised by the social worker and once at the treatment facility supervised by Aunt.

C

Substantive Due Process

C.L. contends the Agency violated her substantive due process interest in a continued parental relationship with Jimmy when it based visitation policy and practice on the Agency's permanency plan recommendation. She maintains unnecessary limitations on visitation improperly ensure termination of parental rights by eroding the parent-child relationship. " '. . . A parent's interest in the accuracy and justice of the decision to terminate his or her parental status is . . . a commanding one.' [Citation.]" (Santosky v. Kramer (1982) 455 U.S. 745, 758; see In re Charlotte D. (2006) 136 Cal.App.4th 1027, 1037-1038.)

The United States Supreme Court has "emphasized time and again that '[t]he touchstone of due process is protection of the individual against arbitrary action of government.' [This applies to] a denial of fundamental procedural fairness [and to] the exercise of power without any reasonable justification in the service of a legitimate governmental objective." (County of Sacramento v. Lewis (1998) 523 U.S. 833, 846.) Because "[d]ue process of law, as a historic and generative principle, precludes defining," there are no precise standards for determining what governmental actions are proscribed by substantive due process. (Rochin v. California (1952) 342 U.S. 165, 173.)

The Agency argues C.L. forfeited or waived any challenge to supervised visitation by not challenging or appealing the visitation order of December 20, 2004. A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court. (Civ. Code, §§ 3515, 3516; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §§ 390, 391 at pp. 440-442; In re Kevin S. (1996) 41 Cal.App.4th 882, 885.) Forfeiture, also referred to as "waiver," applies in juvenile dependency litigation and is intended to prevent a party from standing by silently until the conclusion of the proceedings. (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1037-1038; Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1149; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1152; see In re Riva M. (1991) 235 Cal.App.3d 403, 411-412.)

The December 20, 2004 visitation order, confirmed by the court at disposition on February 4, 2005, did not limit C.L. to supervised visitation with Jimmy. The terms of the order permitted the Agency to lift supervision and expand visitation with the concurrence of minor's counsel. At the time the visitation order was initially issued and later confirmed at the disposition hearing, C.L. did not know the Agency would decline to expand visitation within the parameters set by the court.^[9] The issue is not forfeited on appeal on the grounds urged by the Agency.

However, after the Agency imposed strict supervision requirements on visitation, C.L. complained to the social worker and to the court. The court set a special hearing on visitation. Although C.L. requested a trial on unsupervised visitation at that hearing, the court suggested an interim solution -- adding weekly visitation supervised by Aunt at the treatment facility -- to which the Agency and minor's counsel agreed and C.L. acquiesced. The court afforded C.L. further opportunity to bring concerns about visitation to its attention at the pretrial settlement conference scheduled for June 28, 2005. The appellate record does not show she did so. The record supports the inference C.L. accepted the visitation arrangement reflected in the court's order of June 2, 2005. C.L. did not appeal from that order and has forfeited the issue of substantive due process on appeal.

In addition, although C.L. posits a substantive due process claim, she cites no authority on federal or state grounds to support her claim the Agency violated her substantive due process rights by not expanding visitation.^[10]

Moreover, were we to reach the merits of C.L.'s argument, on this record we would not find she was denied constitutionally acceptable visitation with Jimmy. As county counsel noted, a claim the Agency limited visitation in order to preclude a strengthened parent-child bond is a serious allegation. However, there is nothing in this record to show the Agency limited visitation to intentionally affect the existing parent-child relationship. The Agency's concerns were primarily based on the length of time Jimmy had been a dependent of the court, C.L.'s substance abuse history, including her recent relapse, the short time she had maintained her sobriety and her ability to hide drug use. Based on case specifics, the Agency chose not to exercise its discretion to expand visitation.^[11]

Although a court may grant the Agency broad discretion in setting the frequency and length as well as the time, place and manner of visitation, the court retains control and authority over visitation. (In re Jennifer G., supra, 221 Cal.App.3d at p. 754; In re Shawna M., supra, 19 Cal.App.4th at p. 1690.) If a social worker is uncertain of the court's direction or a parent or child is unhappy with the Agency's management of visitation, it is incumbent on the party to seek clarification or modification with the court of its visitation order. As long as a parent has a meaningful opportunity to seek increased visitation when appropriate, we do not believe a brief period of restricted visitation implicates substantive due process. (In re Danielle W., supra, 207 Cal.App.3d at p. 1238 ["As administrator of the court's order, the parole officer or Department is subject to the supervision of the juvenile court which provides the parent with the required due process"]; see also Winston v. Children and Youth Services (1991) 948 F.2d 1380, 1391; In re Joshua M. (1998) 66 Cal.App.4th 458, 472.)

Here, after the Agency declined to lift its requirement for strict supervision, C.L. sought and obtained increased visitation through judicial proceedings. Although she did not prevail on her request for unsupervised visits, the court granted relief from the limited visitation arranged by the Agency. After the special hearing, C.L. had expanded weekly visitation with Jimmy, supervised by a family member in a convenient location.

Nevertheless, C.L. argues the Agency's refusal to allow unsupervised visitation with Jimmy was unreasonable and arbitrary in light of its approval of her unsupervised visitation with Jimmy's younger sister. C.L. argues such visitation was safe for A.L. and would be safe for Jimmy as well. We expect parental visitation would not occur unless safe for a child. However, a constitutional challenge requires the reviewing court to balance the interests of the individual with the state's asserted reasons for restraining individual liberty. (Youngberg v. Romero (1982) 457 U.S. 307, 320.) After reunification services end, the state's goal is to secure a safe, permanent placement for the child. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) The child, too, has a significant interest in a stable, permanent placement with a committed caregiver. (In re David B., supra, 91 Cal.App.3d at pp. 192-193.) Although a parent has the opportunity under section 388 to show he or she can provide that committed, permanent placement, the state's focus is no longer on family reunification. (In re Marilyn H., supra, 5 Cal.4th at p. 309.)

Here, the children's interests differed. A.L. lived with C.L. for her first eight months and was within the initial reunification period; Jimmy had been in relative or foster care all but three months of his life. Given C.L.'s inability to effect a stable reunification and Jimmy's interest in a permanent placement after more than two years as a dependent of the court, neither constitutional interests nor state law required the court or the Agency to expand visitation to the extent required by reunification. (Compare § 362.1, subd. (a)(1)(A) with §§ 366.21, subd. (h) & § 366.22, subd. (a).)

Finally, we note the court vested minor's counsel with authority to approve expanded visitation. Whatever its general policy or standard of practice, the Agency was not free to expand visitation without the concurrence of minor's counsel. Minor's counsel opposed unsupervised visitation because C.L. lied about her drug use for an extended period. As a result, Jimmy and his siblings were neglected and placed at risk of serious harm. In view of minor's counsel's position, error, if any, in the Agency's management of C.L.'s visitation was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18.)

D

Procedural Due Process

C.L. asserts the Agency did not afford her an opportunity to present "her side of the story," that is, there was no evidence of any protective risk to Jimmy from extended, unsupervised visitation. Procedural due process pertains to notice and the opportunity to be heard. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1068.) A factor in determining the process that is due is the extent to which individuals are able to "present their side of the story before a responsible government official." (In re Malinda S., supra, 51 Cal.3d at p. 383.) An opportunity to be heard " 'must be granted at a meaningful time and in a meaningful manner.' [Citation.]" (In re Joshua M., supra, 66 Cal.App.4th at p. 472.) In California, the court is the government entity responsible for determining visitation. (See In re Jennifer G., supra, 221 Cal.App.3d at p. 754; see also In re Moriah T., supra, 23 Cal.App.4th at p. 1377 ["if the agency is abusing its responsibility in managing the details of visitation, [a party] may bring that matter to the attention of the juvenile court by way of a section 388 petition to modify the visitation order"].)

We do not believe C.L. was denied procedural due process. In February, March and April 2005, she visited with Jimmy one day each month and did not request increased visitation. In May 2005, when C.L.'s complaints about visitation at Agency offices did not result in any informal accommodation, C.L. brought her concerns to the court's attention. The court immediately set the matter for hearing. Although C.L. did not gain the full relief sought, the court arranged increased weekly visitation supervised by a family member.

C.L. exercised her right to a prompt judicial review of her concerns about the Agency's management of her visitation with Jimmy. During that hearing, she accepted the visitation schedule proposed by the court. Her procedural due process rights to a judicial determination after a fair hearing were not violated.

II

The Section 388 Petition

The juvenile court may modify an order if a petitioning party shows, by a preponderance of the evidence, changed circumstances or new evidence and the proposed modification would be in the child's best interests. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 322; In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) We review the court's order for abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 310.) An abuse of discretion occurs only when the trial court's decision is arbitrary, capricious or patently absurd. (Id. at p. 318.)

C.L. contends her circumstances changed substantially in the approximately six months since the section 387 disposition hearing. She requested the court vacate the order setting the section 366.26 hearing and either return Jimmy to her care, extend visitation or provide reunification services. In the alternative, C.L. requested the court take the section 366.26 hearing "off calendar" for 90 days to see "if reunification can be obtained." C.L. alleged a modification of the dispositional order was in Jimmy's best interests because "a child is always better off to be with a parent."

C.L. presented evidence she was in complete compliance with her treatment program and was making continuous progress. The court found there was "no doubt" C.L. had changed since her serious relapse in 2004. However, the court questioned whether the change was stable given the substantial risk C.L. might relapse once she returned to her home environment.

The record supports a reasonable conclusion C.L.'s circumstances were not sufficiently stabilized to show changed, as opposed to changing, circumstances. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) C.L.'s previous relapse occurred after she received extensive services over an 18-month reunification period. Ernest Lotecka, Ph.D., the program psychologist at the treatment facility, testified there would be a danger of relapse when C.L. left the treatment facility and returned home. He found it significant C.L. relapsed when Jimmy was returned to her care. C.L.'s performance and motivation were promising; however, the children's successful return to her care required gradual and incremental steps over time.

Noting that C.L. had shown progress in recovery, the court found C.L. could not show that a modification in the prior order would be in Jimmy's best interests. Even when a parent shows changed circumstances, the court may not grant the relief requested unless it is in the best interests of the child. (§ 388.) When the court considers a request for change of placement immediately before a section 366.26 hearing, it must recognize the focus has shifted to the child's need for permanency. " 'When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' " (In re Stephanie M., supra, 7 Cal.4th at p. 317.)

Here, the court determined that removing Jimmy from a stable, secure home was not in his best interests. Jimmy was significantly bonded with his foster mother. She cared for him from birth to 18 months. When Jimmy saw his foster mother for the first time in almost six months, he ran to her calling, "mama." By the time of the section 388 hearing, Jimmy had lived with the foster mother for 25 of his 30 months. He was safe and happy in her care. The court's focus on Jimmy's need for continuity and stability was appropriate. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) The court reasonably exercised its discretion when it denied C.L.'s section 388 petition.

III

The Beneficial Parent-Child Relationship Exception

The purpose of the California dependency system is to protect children from harm and preserve families when safe for the child. (§ 300.2.) If reunification is not possible within the statutory time frame, the child must be provided a stable, permanent home by adoption, guardianship or placement in long-term foster care. (§§ 366.21, 366.22, 366.26.) Adoption is the permanent plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th at 567, 574.) If reunification efforts have failed and the child is adoptable, the court must select adoption unless it finds terminating parental rights would be detrimental to the child under at least one of five statutory exceptions. (§ 366.26, subd. (c)(1)(A)-(E); see also In re Erik P. (2002) 104 Cal.App.4th 395, 401; In re Derek W. (1999) 73 Cal.App.4th 823, 826.)

Section 366.26, subdivision (c)(1)(A), provides an exception to termination of parental rights when "[t]he parents . . . have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship." To meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) The parent must prove he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) The court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

We review the trial court's findings for substantial evidence. (In re Autumn H. supra, 27 Cal.App.4th at p. 575.) Substantial evidence must be reasonable in nature, credible and of solid value. (DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.) We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)

The court found there was a parent-child bond between C.L. and Jimmy. It was not the nature of their relationship that troubled the court; the evidence showed Jimmy and C.L. shared an affectionate and loving relationship. Rather, it was the court's view that the parent-child bond, weakened by drug use and neglect, was not sufficiently certain to outweigh Jimmy's need for permanency in the place he considered home. The adoptions social worker testified that Jimmy's bond with his foster mother, who had cared for him most of his life, was stronger than his bond to C.L., who had not been able to adequately care for him during his three-month placement in her care.

In making its decision, the court properly considered C.L.'s history of substance abuse and the length of time Jimmy had been in foster care. Despite C.L.'s progress in a structured treatment program, the risk of relapse was not mere speculation. C.L. had a long history of addiction, relapse and recovery. Even after 18 months of intensive services, she was not able to place Jimmy's needs ahead of her own when he was returned to her care. The court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The court determined C.L.'s bond with Jimmy could not substitute for the stable, safe and loving relationship he had with his foster mother. Substantial evidence supports the court's conclusion that the beneficial parent-child exception under section 366.26, subdivision (c)(1)(A) did not apply to preclude termination of parental rights.

DISPOSITION

The judgment is affirmed.

HALLER, J.

WE CONCUR:

McCONNELL, P. J.

AARON, J.

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^[1] Statutory references are to the Welfare and Institutions Code.

^[2] James H. did not appeal.

^[3] The Agency did not remove C.L.'s six-year-old son, D.L., Jimmy's half-brother, who remained in her custody.

^[4] C.L. later admitted using methamphetamine in August 2004.

^[5] The Agency detained A.L. in foster care and filed a section 300 petition on her behalf. D.L.'s father assumed custody of his son. D.L. was later cared for by a maternal aunt.

^[6] Reunification services provided in A.L.'s case allowed C.L. to continue with court-ordered drug treatment.

^[7] The written disposition order of February 4, 2005, does not address parental visitation.

^[8] The Agency's recommended findings and orders did not address parental visitation.

^[9] An appeal taken at that time would not have been ripe for judicial review. " 'A controversy is "ripe" when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made.' " (Consumer Cause, Inc. v. Johnson & Johnson (2005) 132 Cal.App.4th 1175, 1183 quoting California Water & Telephone Co. v. County of Los Angeles (1967) 253 Cal.App.2d 16, 22; see also New York Times Co. v. Superior Court (1990) 51 Cal.3d 453 [generally, the doctrine of ripeness precludes the redress of legal injuries before they occur].)

^[10] Although similar to the framework used to analyze an alleged violation of federal procedural due process, the framework on which C.L. relies applies to state procedural due process claims. (See In re Malinda S. (1990) 51 Cal.3d 368, 383, Lassiter v. Department of Social Services (1981) 452 U.S. 18, 24.)

^[11] Respondent Agency does not attempt to defend a policy or practice of managing visitation based upon a pre-adjudicated permanency plan recommendation. Instead, the Agency takes the position the social worker was "merely enforc[ing]" the court's order for supervised visitation.