In re A.G.

Filed 9/27/06 In re A.G. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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, Cynthia Bashant, Judge. Affirmed.

This is the second appeal in this dependency matter involving five-year-old A.G. and her parents, Suzanne V. and Marvin G.^[1] In the first appeal, Suzanne and Marvin successfully challenged the juvenile court's denial of Suzanne's petition for modification under Welfare and Institutions Code section 388^[2] and the judgment terminating their parental rights under section 366.26. In an unpublished opinion, we remanded the matter with directions to the juvenile court to exercise its discretion at a new section 388 hearing by considering evidence of changed circumstances and A.G.'s best interests with respect to placing A.G. with an appropriate relative. (In re A.G., supra, D045978.) Following a contested hearing on the section 388 petition, which occurred about a year after the first petition was denied, the court again denied the section 388 petition and terminated parental rights.

In this second appeal, Suzanne contends: (1) the court erroneously denied her section 388 petition seeking to have A.G. placed with paternal relatives by considering A.G.'s current circumstances rather than circumstances as they existed at the original section 388 hearing; (2) even if the court could consider current circumstances, it abused its discretion by denying Suzanne's request to have A.G. placed with paternal relatives; and (3) the evidence supported a finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) applied to preclude terminating Suzanne's parental rights. Marvin also appeals, joining in Suzanne's first two arguments and specifically asserting the court erred by failing to consider all the factors set forth in section 361.3 for relative placement. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND^[3]

In January 2004, A.G. became a dependent of the juvenile court and was removed from Suzanne's custody based on findings of parental neglect. (§§ 300, subd. (b), 361, subd. (c).) Despite receiving reunification services, Suzanne failed to comply with the provisions of her case plan. Marvin was incarcerated for recklessly shooting into an inhabited dwelling. At the six-month review hearing, the court terminated services and set a section 366.26 selection and implementation hearing. A.G. had been placed with her maternal aunt and was very bonded to her. However, by January 2005, the aunt had become seriously ill and requested a placement change. Although the paternal great-grandmother, Mary D., recently expressed an interest in having A.G. placed with her, Mary had not maintained a relationship with A.G., telephoned her or requested visits with her.

In February 2005, Suzanne filed a section 388 modification petition, requesting the court set aside its order for a selection and implementation hearing and reinstate services, or alternatively, place A.G. with relatives. Attached to the petition were documents showing Mary and the paternal grandmother, Charlene D., had requested to be considered as a placement option for A.G. at the beginning of the dependency period.

Agency reported it had assessed the protective issues regarding A.G.'s placement with Mary and Charlene. Agency was concerned about A.G.'s long-term safety based on its belief these relatives could not prevent the parents from having access to A.G. Marvin, who was due to be released from prison in about a year, had a history of violence and had made no effort to maintain a relationship with A.G. Suzanne had been sober for only a brief period compared to her many years of substance abuse. She had ongoing issues of neglect as to her son Anthony who remained in her care.

At a hearing on the section 388 modification petition, the court found Suzanne had not shown changed circumstances or that further reunification services were in A.G.'s best interests. As to the issue of relative placement, the court found termination of parental rights was imminent, and therefore, any placement decision for A.G. was Agency's responsibility. The court proceeded with the selection and implementation hearing, terminated parental rights and referred A.G. for adoptive placement.

Suzanne, Marvin and A.G. appealed. We reversed the judgment on the ground the court erred by not exercising its discretion to decide the issues raised in Suzanne's section 388 petition before terminating parental rights, instead deferring to Agency on the issue of A.G.'s placement. We remanded the matter with directions that the juvenile court "hold a new section 388 hearing in which it must fully exercise its own discretion by considering whether the evidence shows a change of circumstances and whether A.G.'s best interests would be served by placing A.G. with an appropriate relative." (In re A.G., supra, D045978, at p. 14)

The new hearing on Suzanne's section 388 petition was held in February 2006. The court received various reports into evidence, including the entire transcript of the previous section 388 hearing, and heard testimony of several witnesses.

Marvin testified he had been released from prison and would be residing in a sober living facility for the next six months. He had no plans for housing after that, although he had always lived with Charlene or Mary. Marvin believed placing A.G. with his relatives would provide her with stability. If A.G. were placed in the paternal relatives' home, Marvin claimed he would abide by any court order prohibiting him from going there.

Charlene testified she had been unemployed for almost a year. She lived with a friend in San Diego during the week and stayed with Mary in San Bernardino on weekends. She diligently tried to arrange visits with A.G. but was unable to contact the social worker. In the past year, she had only one visit with A.G. because the social worker told her no visits would occur until the case was back in court. Charlene had been trying to have A.G. placed with her since the beginning of the dependency proceedings. She planned to have A.G. live with her and Mary at Mary's home in San Bernardino. Charlene said she recognized the signs of drug use and she would not allow Marvin to have access to A.G. if he were under the influence of drugs.

At the request of A.G.'s counsel, the court agreed to consider Mary's testimony from the February 2005 hearing by incorporating it into the present hearing. At the February 2005 hearing, Mary testified the social worker was concerned that if the court placed A.G. in Mary's home, Marvin would have access to A.G. when he was released from prison. Mary claimed she no longer had contact with Marvin and she would abide by any prohibition against contact between Marvin and A.G.

At the February 2006 hearing, Mary testified she was retired and spent a great deal of time with her 13 grandchildren and four great-grandchildren. Mary was willing to adopt A.G. and provide her with a permanent home. In the past, she had unsuccessfully tried to have her home evaluated for placement of A.G. Mary had one visit with A.G. in the past year and after that, the social worker would not allow visits until the court resolved the matter.

Mary further testified her plan in 2005, as well as her current plan, was for A.G. to stay with her full-time in San Bernardino. Charlene would stay in Mary's home until she found her own housing. A.G. had visited Mary, but had never lived with her. Mary believed A.G. would be able to adjust well to Mary's home, given all the family members present. If A.G. had problems adjusting, Mary would show her love until she adjusted.

Although both Mary and Charlene wanted to adopt A.G., Mary testified she would likely be the one to adopt because she presently had the stable home. If A.G. were placed with her, Mary would follow any court order to protect A.G., including not allowing A.G. to live with Suzanne. Even without a court order prohibiting parental contact, Mary would not allow Suzanne or Marvin to have contact with A.G. if Mary believed contact was detrimental to A.G.

Social worker Dianne Moores testified she had been assigned to A.G.'s case since October 2004. Moores believed visits with Suzanne were detrimental to A.G. After one visit, A.G. regressed and wet herself. During another visit, Suzanne told A.G. she was coming home, causing A.G. to become extremely upset. During visits between Charlene and A.G., Charlene inappropriately discussed where A.G. would live, which was likely to confuse A.G.

A.G. did not ask for visits with Suzanne, Charlene or Mary. After the court remanded the case for a new section 388 hearing, Moores and her supervisor determined A.G.'s best interests required suspending visits with Suzanne and the paternal relatives until the court decided where A.G. would live. Moores explained to Charlene that visits were suspended because A.G. needed to adjust and stabilize in her new placement so she could have a sense of security.

Moores did not request an evaluation of Mary's home because she did not believe that placement was appropriate. One of Moores's concerns was that Marvin would have access to A.G. should the court place her with the paternal relatives. Given Marvin's violent history and the absence of a period of stability outside the structure of prison, Moores saw Marvin as a potential threat to A.G. Moores was also concerned that if A.G. were placed with the paternal relatives, they would discontinue visits between A.G. and her maternal aunt, whom A.G. had been seeing several times a month.

In assessing risk to A.G., Moores noted A.G.'s sister C.G. had been moved among various family members numerous times, resulting in an unstable lifestyle. Given this pattern, Moores believed it was highly likely A.G. would also experience instability if placed with the paternal relatives. It was unclear which relative would care for A.G. In Moores's opinion, A.G. was at risk of parental contact and instability if placed with either Charlene or Mary.

Moores testified A.G. had formed a bond with her prospective adoptive mother, Maria J., and the children in Maria's home. A.G.'s behavior and demeanor had drastically improved since being in this placement. Moores noted Maria is attentive to A.G.'s needs, responds to her in an educational way and provides her with parental guidance. A.G. loves Maria, is affectionate toward her and calls her "mommy." In Moores's opinion, the relationship between A.G. and Maria is significant and needs to be maintained. Based on Maria's adoption history and the stable home she provided to her adopted children, Moores had no concerns about Maria's ability to provide stability and permanence for A.G.

According to Moores, A.G. had not asked for a visit with Suzanne in a very long time. A month or two after being placed with Maria, A.G. no longer asked for visits with Charlene. At the visit with Mary, A.G. did not recognize her until prompted and coaxed.

Mary further testified, disagreeing with Moores's testimony that A.G. did not recognize her at the visit. Mary stated A.G. gave her a big hug and called her "Grandma [D.]." Mary said Marvin had always been a loving father and she never believed Marvin was unsafe to be around his children. She clarified that Charlene would move in with her because they were committed to getting A.G. and C.G. out of the dependency system and raising them in a normal environment.

A.G.'s therapist, Pamela Badger, testified she had seen A.G. in therapy for the past year. During their first session, A.G. clung to Maria, hid behind her and was reluctant to separate from her. At the end of sessions, A.G. ran to Maria and shared what she had done in therapy. Badger described the relationship between A.G. and Maria as that of a mother and daughter, where there is "obvious attachment and tenderness."

In Badger's opinion, it was dangerous to disrupt repeatedly a child's attachments because the child might not risk making attachments again. If A.G.'s living arrangement were changed again, A.G. would need therapy for several years.

For the past year, the family members A.G. talked about were those in her foster family and her maternal aunt. Badger never heard A.G. mention Charlene, Mary, Suzanne or Marvin.

According to Badger, the purpose of therapy was to help a child feel secure while transitioning between caregivers and to process and deal with grief. In A.G.'s case, it took four to six months for her to develop a healthy attachment to Maria. Badger believed it would be detrimental to A.G. to have her placement changed again.

Maria testified she had been a foster parent for 14 years. She had five adopted children and encouraged contact between them and their biological relatives. A.G. had lived with Maria for almost a year. Maria was willing to allow contact between A.G. and her maternal and paternal family members.

Maria facilitated three visits between A.G. and her relatives: two involving A.G. and Suzanne and one involving A.G. and Mary, Charlene and C.G. During the first visit, Suzanne spoke baby-talk to A.G., who responded with baby-talk. Following that visit, A.G. began wetting herself and continued to do so for about a week. The second visit with Suzanne went well until Suzanne told A.G. she was coming home. A.G. reacted by becoming extremely upset and wetting the bed.

Maria noted A.G. was happy to see Charlene at the beginning of their visit. However, A.G. did not recognize Mary and had to be told it was "Grandma [D.]." Before that visit, A.G. did not spontaneously talk about Charlene or Mary. She did not mention them after the visit or ask for another visit with them.

When A.G. was first placed with Maria, she asked once or twice about Suzanne, whom she called "Mommy Susie." She had not mentioned Suzanne in about six months. A.G. told Maria she was afraid of Marvin, recalling a time he chased her and Suzanne and caused A.G. to fear he would throw her off the stairs.

After considering the evidence and hearing argument of counsel,^[4] the court noted there had been a considerable change in circumstances since the first section 388 hearing, including Marvin's release from prison and the possibility he would return to live with Charlene. The court found Moores had considered Charlene and Mary for placement, but the evidence supported Moores's concerns about their ability to protect A.G. from her parents and provide her with stability. Suzanne was likely using drugs again, visits between Suzanne and A.G. had been traumatic for A.G., and visits with Marvin would be even more traumatic for her. The court commented that Charlene's and Mary's commitment to family prevented them from recognizing how visiting the parents or moving A.G. among family members might be detrimental to A.G. Finding A.G.'s best interests required she remain in her prospective adoptive home where she was bonded and doing well, the court denied Suzanne's section 388 modification petition.

The parties offered no additional evidence or argument as to the selection and implementation of a permanent plan for A.G., other than the parents' requests for a plan other than adoption. The court found A.G. was adoptable and none of the exceptions of section 366.26, subdivision (c)(1) applied to preclude terminating parental rights. The court terminated parental rights and referred A.G. for adoptive placement.

DISCUSSION

I

The Court Properly Considered New Evidence at the Section 388 Hearing

Suzanne and Marvin contend the court erred by considering current circumstances in denying Suzanne's section 388 modification petition regarding A.G.'s placement with her paternal relatives. They assert that under the doctrine of law of the case, the court was required to apply the relative placement preference based only on evidence that existed at the original section 388 hearing in February 2005.

A

Preliminarily, Agency asserts Suzanne and Marvin forfeited the right to challenge the court's consideration of current circumstances by failing to raise the issue in the trial court. "[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected." (In re S.B. (2004) 32 Cal.4th 1287, 1293.)

Here, none of the parties asked the court to limit its consideration of the evidence regarding A.G.'s placement to facts and circumstances that existed in February 2005, and none of the parties objected when the court heard new evidence on this issue.^[5] By acquiescing in the court's consideration of new evidence, Suzanne and Marvin have forfeited the issue on appeal. (In re Aaron B. (1996) 46 Cal.App.4th 843, 846.)

Moreover, both Suzanne's counsel and Marvin's counsel called witnesses and questioned them about their current circumstances and facts that occurred since the first section 388 hearing. Where, as here, a party's own conduct induces the commission of an alleged error, the party is estopped under the doctrine of invited error from asserting the alleged error as a ground for reversal. (In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501.) Thus, Suzanne and Marvin cannot assert the court's consideration of new evidence as grounds for reversal.

B

Even had Suzanne and Marvin not invited the error or forfeited their right to raise this issue on appeal, the court was required to consider current circumstances in making its placement decision under section 388. At the new hearing on Suzanne's section 388 petition, the burden was on Suzanne, as moving party, to show the proposed change in placement to paternal relatives was in A.G.'s best interests "at that time." (In re Stephanie M. (1994) 7 Cal.4th 295, 322.) Suzanne was required to "establish that at the time of the hearing under review, placement with the [paternal relatives] was in [A.G.'s] best interests." (Ibid.) In ruling on Suzanne's section 388 petition, the court was asked to decide where A.G. should live now, not at some time in the past when circumstances were different. Although the court did consider evidence as it existed in February 2005, it could not reasonably limit its decision to facts that were a year old or ignore intervening events regarding A.G.'s best interests. Just as "[a]ny reversal of an order freeing a child for adoption . . . cannot possibly return the selection and implementation hearing to the same arena in which it was first held," (In re Arturo A. (1992) 8 Cal.App.4th 229, 244), reversal of the court's order denying the section 388 petition could not return the posture of the case to the original section 388 hearing. "This is because the focus of the hearing always must be upon the best interests of the child. The new hearing would entail not only the facts and evidence brought forth at the original hearing, but of necessity would require evidence as to the current status of the child." (Ibid.)

Contrary to the arguments of Suzanne and Marvin, the doctrine of law of the case does not compel a different result. "Under the law of the case doctrine, when an appellate court ' "states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the case's] subsequent progress, both in the lower court and upon subsequent appeal . . . ." ' . . . As its name suggests, the doctrine applies only to an appellate court's decision on a question of law; it does not apply to questions of fact." (People v. Barragan (2004) 32 Cal.4th 236, 246.)

Here, the law of the case doctrine applied to our prior decision only insofar as we held the court must exercise its independent discretion regarding the request for relative placement. The juvenile court did not depart from our decision in finding, based on new facts, that A.G.'s best interests required she remain in her current placement. We did not instruct the court to "look back in time," or limit the parties' right to introduce new or different evidence at the new section 388 hearing. (See People v. Barragan, supra, 32 Cal.4th at pp. 247-248.) Because the court complied with our directive, it did not violate the doctrine of law of the case. (See In re Walter P. (1991) 228 Cal.App.3d 113, 126.)

II

The Court Properly Denied the Request for Relative Placement

Suzanne and Marvin contend the court abused its discretion by denying Suzanne's section 388 petition to have A.G. placed with Charlene. Suzanne asserts the court improperly relied on evidence that A.G. had adjusted well in her prospective adoptive home and on the social worker's bias against the paternal relatives. Marvin asserts the court failed to comply with the directive in our opinion to consider the relative placement preference of section 361.3, thus rendering the court's judgment void. Had the court applied the factors of section 361.3, Marvin claims, it would have placed A.G. with her paternal relatives.

A

Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, there is a change in circumstances or new evidence, and the proposed change is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) Whether a previous order should be modified and a change would be in the child's best interests are questions within the sound discretion of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The juvenile court's order will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. When two or more inferences reasonably can be deduced from the facts, we have no authority to substitute our decision for that of the trial court. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319; In re Casey D., supra, 70 Cal.App.4th at p. 47.)

When the court evaluates the appropriate placement for a child after reunification services have been terminated, its sole task is to determine the child's best interests. (In re Stephanie M., supra, 7 Cal.4th at p. 320.) In this context, the goal is to assure the child "stability and continuity." (Id. at p. 317.) " '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.' " (Ibid.)

B

The parties do not dispute that at the time of the new section 388 hearing, circumstances had changed.^[6] Instead, they focus on whether the proposed change ¾ removing A.G. from her prospective adoptive home and placing her with Charlene or Mary ¾ was in A.G.'s best interests. Indeed, as we noted in our prior opinion, "[t]he mandate of section 388 is for the court . . . to decide, based on the evidence before it at the time, whether the best interests of the child would be served by a change to a previous order." (In re A.G., supra, D045978, p. 13, italics added.)

The evidence showed A.G. did not have a significant relationship with Mary or Charlene. A.G. did not talk about Mary or Charlene in therapy and she did not ask for visits with them. The social worker's concerns about the paternal relatives' inability to protect A.G. from her parents were no longer speculative as they had been a year earlier. Suzanne had recently relapsed into drug use and was neglecting her son Anthony. Visits with Suzanne were traumatic for A.G. Marvin was now out of prison and had no plans for housing once he completed six months in a sober living facility. He had previously lived with Charlene, and on several occasions, caused her to lose her home. Mary said Marvin might stay with her and Charlene after he completed rehabilitation. The court believed Marvin was likely to live with Charlene, with whom he had lived before going to prison. Marvin remained a threat to A.G., given his violent history and A.G.'s stated fear of him. Nevertheless, Mary believed Marvin was a loving father and was safe around his children. From this evidence, the court could reasonably infer the paternal relatives did not understand that visits with Marvin would be detrimental to A.G.

The evidence also showed A.G. was at risk of instability if placed with her paternal relatives. Her sister C.G. had been moved among family members, which the paternal relatives perceived as an acceptable living arrangement. The record was unclear as to which family member would be A.G.'s caregiver.

The court was entitled to consider A.G.'s current circumstances in her prospective adoptive home. (In re S.D. (2002) 99 Cal.App.4th 1068, 1079; In re Arturo A., supra, 8 Cal.App.4th at p. 244.) In contrast to a placement with the paternal relatives, A.G.'s placement with Maria, with whom A.G. was bonded, provided her with stability and security. According to the social worker and A.G.'s therapist, it would be detrimental to remove A.G. from this nurturing environment where she was thriving.

The court properly evaluated the evidence presented at the section 388 hearing in light of A.G.'s need for stability and continuity (In re Stephanie M., supra, 7 Cal.4th at p. 317), and found A.G.'s best interests would not be served by changing her placement.^[7] The court acted within its discretion by denying Suzanne's section 388 petition. (Id. at pp. 318-319.)

C

Marvin asserts the juvenile court failed to comply with the directive in our prior opinion in this matter to consider the relative placement preference of section 361.3. (In re A.G., supra, D045978.) However, our opinion did not reverse the judgment based on the court's failure to apply the relative placement preference at the section 388 hearing. Rather, we held the court did not properly exercise its independent discretion to decide the issues raised in Suzanne's section 388 petition, specifically, whether to place A.G. with her paternal relatives. (In re A.G., supra, D045978, at pp. 2, 11.) Our disposition directed the juvenile court to hold a new section 388 hearing at which it would exercise its own discretion as to whether the evidence showed changed circumstances and whether A.G.'s best interests would be served by placing her with an appropriate relative. (In re A.G., supra, D045978, at p. 14.) Nothing in our decision was meant to require the juvenile court to apply the various provisions of section 361.3, but only that it consider relatives who have not been found to be unsuitable within the meaning of that statute. In the context of a section 388 petition to change placement after termination of reunification services, "the predominant task of the court was to determine the child's best interests, which the court here did." (In re Stephanie M., supra, 7 Cal.4th at p. 320.)

In any event, the juvenile court complied with our directive to consider whether placing A.G. with her paternal relatives was appropriate. (§ 361.3, subd. (a).) The court was not required to presume A.G. should be placed with her paternal relatives, but was to put the relatives " '. . . at the head of the line . . .' " when determining which placement was in A.G.'s best interests. (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 863; In re Sarah S. (1996) 43 Cal.App.4th 274, 285.)

The record shows the court clearly considered the wishes of Suzanne and Marvin to have A.G. placed with her paternal relatives. (§ 361.3, subd. (a)(2).) However, the court also was aware that A.G. did not talk about Charlene or Mary, was not requesting visits with them, and may not have recognized Mary at one visit. There was conflicting testimony about who would be A.G.'s caregiver, permitting an inference that changing A.G.'s placement to her paternal relatives may not be in her best interests with respect to providing her with stability and permanence.

Marvin suggests the court did not seriously evaluate the paternal relatives as required by section 361.3, subdivision (a)(3). However, at the new section 388 hearing, the court considered the testimony of Marvin, Charlene and Mary about the appropriateness of placing A.G. with her paternal relatives. After weighing the evidence, the court found A.G.'s best interests required leaving her in her current placement. We cannot reweigh the evidence or substitute our judgment for that of the trial court. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53; In re Zachary G., supra, 77 Cal.App.4th at p. 812.) Contrary to Marvin's assertion, the paternal relatives were afforded a "fair chance" to obtain custody. (Caesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1033.)

Under section 361.3, subdivision (a)(4), the court was required to, and did, consider placing A.G. in the same home with her sister C.G. However, the court found that placing A.G. with either Charlene or Mary would not guarantee A.G. would live with C.G. because the evidence showed C.G. had an unstable lifestyle, moving among various relatives.

Marvin asserts the court was required to consider the paternal relatives' good moral character. (§ 361.3, subd. (a)(5).) The court did consider evidence of Charlene's and Mary's good moral character, and indeed found "the paternal relatives look like great loving people for this child." (In re A.G., supra, D045978, at p. 11.) However, the court was required to weigh this factor along with the other factors of section 361.3 in making its placement decision in A.G.'s best interests.

Section 361.3, subdivision (a)(6) requires the court to consider the nature and duration of the relationship between the child and the relative, and the relative's desire to care for and provide legal permanency for the child. Both Charlene and Mary testified they were willing to provide a permanent home for A.G. and had made efforts to have A.G. placed with them. However, Mary expressed an interest in having A.G. placed with her only after learning Agency was not likely to place A.G. with Charlene. Up to that time, Mary had not maintained a relationship with A.G., telephoned her or requested visits with her. At the beginning of one visit, A.G. did not recognize Mary. Nevertheless, Mary said she would be the one to adopt A.G. because she, unlike Charlene, had a stable home. The court fairly considered this evidence in the context of ruling on Suzanne's request to have A.G. placed with her paternal relatives.

The court was also required to consider the paternal relatives' ability to provide proper care for A.G. (§ 361.3, subd. (a)(7).) At the conclusion of the first section 388 hearing, the court noted the paternal relatives could provide A.G. "a good stable home." (In re A.G., supra, D045978, at p. 11.) However, by the time of the new section 388 hearing, circumstances had changed. Those circumstances gave rise to the court's concern that the paternal relatives would be unable to protect A.G., including on an emotional level, from her parents.

Marvin contends that placing A.G. in the home of her paternal relatives was in her best interests. (§ 361.3, subd. (a)(1).) However, "regardless of the relative placement preference, the fundamental duty of the court is to assure the best interests of the child, whose bond with a foster parent may require that placement with a relative be rejected." (In re Stephanie M., supra, 7 Cal.4th at p. 321, citing In re Jessica Z. (1990) 225 Cal.App.3d 1089, 1100.) Although we recognize the importance of affording relatives a "fair chance" to obtain custody (Caesar V. v. Superior Court, supra, 91 Cal.App.4th at p. 1033), we conclude the court here fulfilled its fundamental duty to assure A.G.'s best interests when it declined to change her placement. (See In re Stephanie M., supra, 7 Cal.4th at p. 321; Alicia B. v. Superior Court, supra, 116 Cal.App.4th at p. 864.) Thus, the court properly denied Suzanne's section 388 modification petition.

III

Substantial Evidence Supports a Finding There Was No

Beneficial Parent-Child Relationship

Suzanne challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating her parental rights. She asserts the evidence showed A.G. will suffer detriment as a result of losing her relationship with Suzanne.

A

We review the judgment for substantial evidence. (In re Autumn H. ( 1994) 27 Cal.App.4th 567, 576.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if there is substantial evidence supporting a contrary conclusion. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) The parent 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.)

"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the child under one of five specified exceptions. (§ 366.26, subd. (c)(1)(A)-(E); 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) is an exception to the adoption preference if termination of parental rights would be detrimental to the child because "[t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." We have interpreted the phrase "benefit from continuing the relationship" to refer to a "parent-child" relationship that "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 parent's rights are not terminated." (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord In re Zachary G. (1999) 77 Cal.App.4th 799, 811.) "In other words, if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)

To meet the burden of proof for this statutory exception, 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.) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interaction, companionship and shared experiences." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Although day-to-day contact is not required, it is typical in a parent-child relationship. (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) 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. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)

B

Here, the evidence showed Suzanne did not have regular visitation and contact with A.G. Suzanne often appeared late for visits and eventually stopped visiting. During the months preceding the first selection and implementation hearing, Suzanne's visitation consistency did not improve.

Even assuming Suzanne regularly visited A.G., she did not meet her burden of showing there was a beneficial parent-child relationship sufficient to apply the exception of section 366.26, subdivision (c)(1)(A). In Moores's expert opinion, Suzanne did not have a parental role in A.G.'s life. Suzanne did not telephone A.G.'s caregiver to ask about her well-being, inquire about A.G.'s progress in her Headstart program, or visit A.G. when she had hernia surgery. Visits with Suzanne were upsetting to A.G., causing her to fuss, cry and wet herself. A.G. no longer asked to see Suzanne and did not mention Suzanne in therapy sessions with Badger. There was no showing A.G. would be "greatly harmed" if she no longer had contact with Suzanne. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

Suzanne cites to an interaction study performed in February 2005 to show A.G. had a significant relationship with her. However, according to that study, the attachment between Suzanne and A.G. was not a "primary" attachment. A.G. had similar attachments to other relatives. She had a loving, parent-child relationship with her prospective adoptive mother, and had developed a sense of safety and security in that home. Suzanne did not show her relationship with A.G. was sufficiently beneficial to outweigh the benefits of adoption. A permanent plan other than adoption "is not in the best interests of children who cannot be returned to their parents. These children can be afforded the best possible opportunity to get on with the task of growing up by placing them in the most permanent and secure alternative that can be afforded them." (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419.)

The juvenile court was required to, and did, weigh the strength and quality of the parent-child relationship, and the detriment involved in terminating it, against the potential benefit of an adoptive home for A.G. based on her particular needs. Substantial evidence supports the court's finding the exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating Suzanne's parental rights. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425.)

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

HUFFMAN, Acting P. J.

HALLER, J.

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^[1] Suzanne V. is referred to as Suzanne G. in the first appeal. We have taken judicial notice of our opinion in that appeal. (In re A.G. (Aug. 12, 2005, D045978) [nonpub. opn.].)

^[2] Statutory references are to the Welfare and Institutions Code.

^[3] A more detailed statement of the facts and procedure leading up to the first appeal is contained in In re A.G., supra, D045978.

^[4] At both the original and new section 388 hearings, A.G.'s counsel was in favor of placing her with the paternal relatives. However, on appeal, A.G.'s counsel informs us that due to the passage of time and A.G.'s need for stability and permanence, she no longer opposes the juvenile court's decision to maintain A.G. in her prospective adoptive home rather than move her to relative placement.

Suzanne has filed a motion to strike part of minor's brief on the ground it contains information outside the record on appeal. However, we deem minor's brief to conform with local custom and rules, as well as the Supreme Court's holding in In re Josiah Z. (2005) 36 Cal.4th 664, 676. (See also In re Zeth S. (2003) 31 Cal.4th 396, 413.) Accordingly, we deny Suzanne's motion.

^[5] Suzanne claims A.G.'s counsel, in closing argument at the new section 388 hearing, urged the court to make its decision based on the facts as they existed a year earlier. However, we do not read A.G.'s counsel's argument as objecting to the court's consideration of new evidence. Rather, counsel's position was that although A.G. was in a wonderful prospective adoptive home, that fact was irrelevant because the paternal relatives went to the "head of the line" for placement purposes.

^[6] In ruling on the section 388 petition, the court noted there had been many changes since the last hearing to support the social worker's concerns about placing A.G. with the paternal relatives. The court also found changed circumstances in that A.G. was now bonded to her prospective adoptive family and was doing well in that home.

^[7] Nothing in the record supports Suzanne's claim of social worker bias against the paternal relatives. Rather, the court's decision is amply supported by the evidence.