In re A.P.

Filed 10/26/06 In re A.P. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from orders of the Superior Court of Los Angeles County.

Albert J. Garcia, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Lisa DiGrazia, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.

___________________________________________________

This dependency appeal follows termination of parental rights after a court-ordered case plan, where the mother’s effort at compliance with the case plan was both too little and too late.

D.P. appeals the orders terminating parental rights as to her children, A.P. (born June 2001) and F.C. (born August 2003), and denying her petition for modification to obtain custody of her children and reinstatement of family reunification services or, alternatively, to obtain weekend overnight visits with the goal of regaining custody.^[1] Contrary to D.P.’s contentions: (1) the juvenile court did not abuse its broad discretion in denying the petition for modification, as there was insufficient evidence of alleged changed circumstances; and (2) substantial evidence supports the juvenile court’s termination of parental rights and the inapplicability of the statutory exception based on purported benefit to the children in maintaining the parent-child relationship and supposed regular visitation by the mother.

We affirm the orders under review.

FACTUAL AND PROCEDURAL SUMMARY

In February of 2004, D.P.’s children, A.P. and F.C., first came to the attention of the Department of Children and Family Services (DCFS) as the result of a child abuse hotline referral, alleging D.P.’s emotional abuse of A.P. and a substantial risk of harm to F.C. D.P. admitted that A.P. had witnessed a domestic violence incident between her and F.C.’s father. Pursuant to a voluntary maintenance procedure, D.P. voluntarily agreed to complete domestic violence counseling and parenting education classes. However, she failed to show up for the scheduled counseling sessions and attended only one parenting education class. The program described her as lacking the necessary maturity to complete goals and demonstrating poor judgment in arriving at the family preservation office with F.C.’s father, with whom she was not supposed to have any contact.

In May of 2004, D.P. and F.C.’s father had another violent altercation. DCFS then filed a dependency petition (Welf. & Inst. Code, § 300),^[2] alleging the following: that D.P. and F.C.’s father engaged in two violent altercations witnessed by A.P.; that D.P. had a history of substance abuse and was under the influence at the time of the recent altercation; that D.P. had failed to complete a prior court-ordered substance rehabilitation program and did not comply with the most recent counseling and education classes as she had volunteered to do; and that the children’s sibling was a former dependent due to D.P.’s neglect and substance abuse, with her parental rights terminated in that case.^[3] The children were temporarily detained with their maternal aunt. At the ensuing detention hearing, the juvenile court ordered monitored visits for the parents, and continued the matter to the next month for a pretrial resolution conference hearing.

Meanwhile DCFS investigated the allegations in the petition. D.P. had a prior arrest history as a juvenile and served time in juvenile hall and California Youth Authority. She also had an extensive violence-related arrest history as an adult, both before and after the children were born, including arrests for battery in 1997, 1998 and 1999, and for making criminal threats in 2001. And she had violated probation as recently as 2003. Furthermore, D.P. admitted a history of alcohol use beginning from the age of 11, drug abuse from age 14, and involvement with a gang from age 12. She blamed the maternal grandmother and DCFS for the prior termination of her parental rights as to George F., the children’s sibling.

In the present case, at the pretrial resolution conference hearing in June of 2004, the juvenile court sustained all of the allegations, as amended, in the dependency petition. The court removed the children from their parents’ custody, and ordered D.P. to complete a parenting education course, to participate in random drug and alcohol tests, and to complete a program of individual counseling that incorporated anger management and domestic violence issues (to be dealt with separately). The court also ordered that D.P. have visits with the children, monitored by a DCFS-approved monitor, for a minimum of three times per week for three hours each time, with DCFS having the discretion to liberalize D.P.’s visits if she complied with the court-ordered case plan.

However, D.P. did not substantially comply with the case plan during the ensuing six months. Despite enrolling in an anger management program, she used profanity with the social worker, and was aggressive and insulting toward A.P.’s grandmother. She also failed to visit the children regularly, did not set up appointments to see them, and showed up unannounced at their home. In December of 2004, DCFS recommended the juvenile court terminate family reunification services. Approximately a month and a half later, D.P. began visiting the children weekly, but she continued to fail to comply with the court-ordered case plan. She told the social worker she was enrolled in her programs, but did not provide information about them when asked. A representative from D.P.’s anger management program advised the social worker that D.P. was inappropriate for the group, refused to follow rules, wanted to run the group, was extremely violent and defiant, and instigated fights among the other group members.

In January of 2005, during the continued six-month review hearing, D.P. claimed she was having difficulty arranging visitation. The juvenile court indicated visits could occur on Friday, Saturday and Sunday, if those days were available. Several days later, D.P. went to the social worker’s office, falsely claiming the juvenile court had granted her unmonitored visits with the children and accusing the social worker of impeding those visits. She demanded a new social worker and claimed the social worker had not given her enough time to reunify with the children.

D.P.’s children were not available for weekend visits because they spent that time with their paternal grandmothers. The maternal aunt, however, offered to monitor visits on weekdays, but D.P. stated she was too busy. D.P. also felt she had the right to stop the grandmothers’ visits because she was the mother. D.P. also disagreed over visitation arrangements with F.C.’s paternal grandmother and the social worker.

In the midst of D.P.’s visitation disagreements, she persisted in arriving at the maternal aunt’s home without an appointment and demanded to see her children. D.P. was aggressive and yelled profanity in the children’s presence. The maternal aunt asked her to refrain from negative comments to the children, which further enraged D.P. The maternal aunt was willing to adopt the children, but was concerned about dealing with D.P. on a long-term basis in light of such behavior. Also, A.P. was aggressive and defiant after D.P.’s visits.

Almost three months after the original six-month review hearing, D.P. claimed that she was enrolled in a drug program, individual counseling, and an anger management group. But, she failed to provide proof of enrollment. The social worker requested progress reports from the programs, as D.P.’s unacceptable behavior remained the same.

At a continued six-month hearing in February of 2005, a sober-living counselor appeared and explained that D.P. had approximately one week prior to the hearing enrolled in a substance abuse program and was residing at a sober living home. She had at that point apparently submitted to one drug test. The juvenile court noted that D.P. was well beyond the six months she had been given to complete her court-ordered case plan. Nonetheless, the court agreed to provide her with a full 12 months of services and continued the matter for a month. When a social worker later checked on D.P. at the facility, she was not there. A house manager at the facility told the social worker that the facility helped residents recovering from addiction by assisting with food and housing, but that the residents were responsible for enrolling in drug rehabilitation outside the facility. The facility, however, did administer random drug tests, though D.P. had not signed the requisite consent form, so she was not tested for drugs.

By March of 2005, D.P. visited with the children weekly. She tried to talk with them in a normal tone of voice, demonstrated affection, and appeared to be making progress in her relationship with them. However, at the contested six-month review hearing scheduled for March, D.P. failed to appear. The social worker indicated that D.P. was participating in a drug rehabilitation program, but the program had not submitted a written report as promised. And, there was no additional information about the program curriculum or requirements. Since there was no evidence that D.P. had participated regularly in the court-ordered case plan, the juvenile court terminated family reunification services and set the matter for a section 366.26 hearing in July. The court also set the matter for a progress hearing in April regarding the status of the adoptions.

At the April 2005 progress hearing, D.P. again filed to appear. A social worker reported that there were three identified prospective adoptive parents, but DCFS preferred the current caretaker, the maternal aunt, with whom the children identified. The children called the maternal aunt “mama,” ran to her for comfort and nurturing, and cried when they thought she was leaving. The maternal aunt agreed to encourage ongoing contact between the children and their relatives.

In May of 2005, D.P. began visiting with the children once a week for one hour at the social worker’s office. During the two or three possible visits that she kept, she tried to control her use of profanity, but her voice became loud when correcting the children. A.P. became frightened and pulled away from D.P. Later that month, D.P. told the social worker that she stopped attending anger management classes because she did not want to be there. Meanwhile, D.P. called the maternal aunt at home, and threatened her and her husband if they adopted the children. As a result of D.P.’s conduct and the maternal aunt’s consequence hesitance to proceed with the adoption, DCFS put the adoption home study on hold.

In June of 2005, a group meeting ensued with the paternal grandmothers, the maternal aunt and her husband, and D.P. They all agreed the children should not be separated, but could not agree on which family was best for the children. Ultimately, D.P. acknowledged that if her parental rights were terminated, she could work with F.C.’s paternal grandmother (but not A.P.’s paternal grandmother). F.C.’s grandmother was willing to allow postadoption contact with D.P., and the children felt comfortable with her. Thus, DCFS determined that F.C.’s grandmother was the best candidate to adopt the children.

In July of 2005, the social worker discovered that D.P. had been in the sober living residence only since the prior month--not since February of 2005, as originally reported. The social worker also verified that D.P. had enrolled in a second domestic violence program and a parenting class in July, and was attending anger management classes. D.P.’s. visits were inconsistent due to her schedule and the children’s weekend unavailability. The social worker again attempted to facilitate visits during the week, but D.P. could only arrange to visit on Sundays for three hours.

By July of 2005, the maternal aunt and her husband were no longer interested in adopting the children. The adoption social worker determined that it would be in the children’s best interests to be placed with F.C.’s grandmother, based on their frequent contacts and emotional attachments. She agreed to adopt both children, and DCFS placed them in her home in August.

Also in August of 2005, D.P. began a new job, and she was still at the sober living program by the next month. By September she had participated in two parenting class sessions, and attended one domestic violence session but missed six sessions. She completed 14 anger management classes, attended 12-step program meetings, and tested negative for alcohol and drugs (on June 23, July 5, and August 8, 2005). D.P. continued her visits with the children on Sundays, for three hours a visit, monitored by F.C.’s grandmother. And, on September 4, 2005, D.P. had an unmonitored four hour visit with the children, after which A.P. cried because she wanted to spend more time with D.P.

Nonetheless, also in September of 2005, at another family group conference, which included D.P. and paternal relatives, everyone agreed that the children should remain with F.C.’s grandmother. They also agreed that A.P. should enroll in therapy, and that D.P. should have unmonitored visits with the children on Sundays, with the possibility of an overnight visit if she continued to comply and progress in her court-ordered programs.

At the time of the September 2005 progress hearing, DCFS was still exploring different permanent placement options for the children. DCFS indicated that “in the meantime, we’re also looking towards [D.P.] . . . to liberalize her visits in the home, that perhaps she may file a [section] 388 [modification petition] and regain custody.” The juvenile court ordered that DCFS had the discretion to allow D.P. overnight weekend visits with the children, but reiterated that their permanent plan was adoption and continued the matter until November of 2005.

On September 22, 2005, D.P.’s trial attorney filed a section 388 petition. The juvenile court denied the petition without a hearing because it failed to allege new evidence or a sufficient change in circumstances.

Between October and November of 2005, D.P.’s sober living program asked her to leave for 30 days because of her misbehavior, such as verbally fighting with a roommate. Although D.P. was required to continue with all of her other court-ordered programs and with the 12-step program meetings during the 30 days, she failed to do so. D.P. did not follow through with her programs, did not go to the required meetings, did not attend domestic violence classes for four weeks, and was no longer employed.

D.P. had unmonitored day visits on Saturdays and Sundays with the children until the first week of November of 2005, when she entered the Shields residential drug treatment facility. The program restricted her visits until December.

Meanwhile, at the November 2005 hearing, the juvenile court commented that D.P. has started her case plan late and was “way behind.” The court reminded her that its order for visits three times per week for three hours each time was in full force and effect and admonished her that she would “lose in the end” if she did not visit with the children. The court continued the matter for a progress report in January of 2006, and for a section 366.26 hearing in March of 2006.

By mid-January of 2006, D.P. was having monitored visits with the children at her program on three weekdays. F.C.’s grandmother, however, reported that A.P. was having a difficult time at these visits. At the January court hearing, D.P. was again displeased with the children’s placement and asked DCFS to move them to foster care or to another relative. When D.P.’s trial attorney complained to the juvenile court that the children were being put through “an emotional roller-coaster” and asked for them to be placed with D.P., the court pointed out that D.P. was the initial cause of the problem and that the family members were trying to do their best. The court also indicated that D.P. should have started her programs the day she was ordered to begin them, and warned that it would not return the children to her unless she had substantial compliance.

At the hearing in early February of 2006, D.P. asked for weekend visits and indicated that the existing visitation schedule was inconvenient because it conflicted with her schedule. The juvenile court stated she could have visits at any time available to her, as long as a DCFS-approved monitor was present, but that D.P. had not given the court any reason to specifically order weekend visits. When she complained that the children’s caretaker did not transport the children on time and sometimes did not bring them at all, the court reminded her that there was no order that the caretaker provide transportation. The burden was on D.P. to arrange her own transportation, to take her monitor with her, and to pick up the children. As the court remarked, “There is no limo service here. Sorry.”

Meanwhile, the social worker received two letters from D.P.’s program counselor. One letter explained that although she had an interest in learning how to create a drug-free lifestyle, she had displayed excessive anger and aggression. A second letter noted that she continued to display outbursts of anger and aggression and to blame others for her problems, and fails to accept full responsibility for her actions. D.P. was also disruptive and disrespectful during group sessions.

Also, in the middle of February of 2006, the caregiver observed an altercation when the maternal grandmother came to pick up the children for an overnight visit. D.P. was with the maternal great grandmother, who had come along with the grandmother. After the great grandmother disagreed about keeping A.P.’s boots inside the van in which the family was traveling, D.P. called the great grandmother a “fucken bitch” in front of the children. D.P. was not concerned that that her children were exposed to this confrontation.

By February 24, 2006, the social worker began to monitor D.P.’s visits with the children at the social worker’s office on Fridays from 3:00 p.m. to 4:30 p.m. The social worker attempted to facilitate additional visits for D.P., but her program case manager could not monitor visits between 3:00 p.m. and 5:00 p.m., which was the only time the children were available after school. As reported by the social worker who monitored the visits, on one occasion D.P. called F.C. “trouble” and “mala” while referring to A.P. as “my princess,” based on their relative behaviors, but the visit went well. A.P., who had been diagnosed as suffering with posttraumatic stress disorder, was on a waiting list for individual counseling.

At the progress hearing at the end of February of 2006, D.P.’s trial counsel claimed that she was not receiving her court-ordered visitation. The juvenile court did not accept this claim as true, but made specific visitation orders for three hours on three weekdays (working around and not conflicting with D.P.’s parenting classes).

Two weeks later, at another progress hearing, D.P.’s trial counsel again asserted her visits were being thwarted. However, F.C. was ill from March 3 to March 8, 2006, and hospitalized with pneumonia. The caregiver stayed at the hospital all day and night during F.C.’s stay, but D.P. came only once and stayed for 30 minutes. D.P. asserted she was not allowed to see F.C. at the hospital, even though D.P. had with her a DCFS-approved monitor (A.P.’s grandmother). The court then questioned that grandmother and learned that she was not, in fact, a DCFS-approved monitor.

On March 22, 2006, the juvenile court had a scheduled hearing to review the permanent plan, but the matter was continued. The next day, D.P.’s trial attorney filed another section 388 petition. The juvenile court scheduled the section 388 hearing on the same day as the section 366.26 hearing.

The section 388 petition sought reinstatement of family reunification services, placement of the children in D.P.’s home with family preservation services, or in the alternative, granting D.P. weekend overnight visits with the children leading to an order returning the children to her. D.P. claimed in the petition that she had “successfully completed all court ordered counseling,” and also asserted that her requested modifications were in the children’s best interests because her counselor stated that she had “‘learned new parenting skills that will help her [to] raise her children in a safe & living environment.’” The petition also had annexed to it various certificates, letters and reports.

A DCFS report responded to the section 388 petition. The report explained that although D.P. had completed 12 anger management classes and 6 domestic violence classes, she had also been ordered to enroll and participate in individual counseling to address anger management and domestic violence issues, and she failed to do so. “Additionally, on 03/10/05 [the social worker] heard [D.P.] make threats towards the caregiver and this is evidence that [D.P.] continues to struggle with controlling her anger and has shown little progress.” Moreover, the DCFS report noted that D.P. had only partial compliance regarding attendance at parenting classes, that D.P.’s random drug tests were not regular (no drug tests between mid-June of 2004 and February of 2005), and that her compliance with inpatient drug rehabilitation was only partial because the program was for one year and she had thus far only attended that program for four months. Meanwhile, the adoptions social worker found no legal or practical impediment to adoption of the children by F.C.’s grandmother.

On April 5, 2006, at the section 366.26 hearing, D.P.’s trial attorney presented testimony from D.P.’s therapist (of two and one-half months), her case manager (of three weeks), and D.P. herself. The DCFS reports were admitted into evidence. The juvenile court noted that although D.P. was to receive six months of family reunification services, she had actually received almost two years of services. The court found that D.P. did not qualify for yet more family reunification services because she had not completed a drug program and was unable to show a steady track of full compliance. When D.P.’s trial attorney argued that the problems with visitation were the relatives’ fault, the court stated that the lack of visitation was D.P.’s problem, that the issue should not be taken out of context, and that D.P. was simply not visiting the children enough. Thus, the court denied the section 388 petition, finding that D.P. had not made a showing of a sufficient change in circumstances since she had not complied with the court’s orders and was not close to completion, and that her requested modifications were not in the children’s best interests.

The juvenile court then proceeded to the section 366.26 component of the hearing, and all the DCFS reports were admitted into evidence without objection and no witnesses were called. In closing argument, the children’s attorney joined in DCFS’s request to terminate parental rights. D.P.’s trial attorney opposed termination, urging that D.P. believed she had a substantial bond with the children. He also argued that she had as much visitation as she could obtain, that the children recognized her as their mother, and that an inter-family adoption arrangement would not be in their best interests. The court found that D.P. did not meet any statutory exception to the termination of parental rights, and that her problems with visitation were not the result of any failure by the juvenile court or anyone else. The court thus terminated parental rights.

DISCUSSION

I. The juvenile court did not abuse its discretion in denying the section 388 modification petition.

Pursuant to section 388, a parent may file a petition requesting the juvenile court to change, modify, or set aside a previously made order. The parent has the burden of showing that the court should grant the requested modification and must establish both a change of circumstance or new evidence and the proposed new modification is in the children’s best interests. (§ 388; Cal. Rules of Court, rule 1432, subd. (c); see In re Stephanie M. (1994) 7 Cal.4th 295, 317.)

On appeal, the juvenile court’s denial of a section 388 petition is reviewed for an abuse of discretion. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) “‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its judgment for that of the trial court.’” (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.) Under the abuse of discretion standard, unless there is an arbitrary, capricious, or patently absurd determination, the juvenile court’s decision will not be disturbed. (Id. at p. 318.)

In the present case, contrary to D.P.’s contention, the juvenile court did not abuse its broad discretion in denying her request for custody of the children and/or reinstatement of family reunification services. First, there were no changed circumstances. A parent’s enrollment in, but not completion of, court-ordered programs shows only changing, not changed, circumstances and is inadequate to support a modification order under section 388. (See In re Casey D. (1999) 70 Cal.App.4th 38, 47, 49.) Moreover, as here, a section 388 petition filed on the eve of the section 366.26 hearing is filed at a time when the focus of the proceedings is permanency for the children, and such a section 388 petition is disfavored. (Id. at p. 48.)

D.P. received voluntary family maintenance services and family preservation services from March 2004 to May 2004 and family reunification services from June 2004 to February 2005. During those first 10 months, DCFS worked with D.P. to maintain the children in her custody and then, when she failed to abide by the terms of the voluntary case plan, to return the children to her custody. The problem was that D.P. was simply unable to comply with what the juvenile court requested of her, and the court terminated family reunification services in March 2005. A year later, by the time she filed the section 388 petition, the period of time the law allows for reunification services had expired. (See § 361.5, subd. (a)(1); Cal. Rules of Court, rule 1456(f)(1).) Thus, D.P., who the juvenile court noted was entitled to six months of reunification services, had received more than 22 months of assistance by the time of March 2006 section 388 petition.

Moreover, D.P. claimed in her section 388 petition that she had “successfully completed all court ordered counseling, including anger management,” but she failed to document any participation in individual counseling. She had completed 12 weeks of anger management classes (from the end of December 2005 to the middle of March 2006) in one program and two anger management classes at another program. But, D.P. had at that point failed to participate in any individual counseling for anger management and domestic violence, though the juvenile court had ordered her to do so.

Although D.P. finally participated in individual counseling by the time of the section 388 hearing, her therapist’s testimony established that he had been seeing her for less than two and a half months. The therapist opined that D.P. had made substantial progress in dealing with issues that brought her to the residential drug treatment program (i.e., at Shields), but he also acknowledged that he had not seen D.P. and the children interact together, had not reviewed her case history, and could not make a recommendation as to the children’s placement. The therapist’s testimony was thus not determinative in assessing whether there had been the requisite change in circumstances for the purposes of a section 388 petition.

It was commendable that the progress reports from Shields described D.P. as having “shown progress in managing her anger without aggression” and as having “less struggles with addressing her treatment issues” which could support liberalized visits with the children. Nonetheless, there was no indication in the reports that she had conquered her anger management problems or that her violent outbursts had ceased. Indeed, the social worker overheard her threaten the caregiver on March 10, 2006--indicating she continued to struggle with controlling her anger and had shown little progress outside of the confines of the Shields program.

Similarly, D.P.’s case manager testified that D.P. had a “real, real bad anger problem” when she first entered the program, but was learning how to process it. However, not only had the case manager been assigned to her for only three weeks, but again there was no indication D.P. had solved her problem or controlled the problem outside the context of a structured program.

D.P.’s compliance with her drug rehabilitation program was also inadequate. First, although the drug program was 12 to 18 months long, D.P. had completed only four months in the program. (And she had participated for only three months at other drug treatment or sober living facilities since February 2005.) Second, although D.P. tested negative for drugs on numerous occasions, she had been ordered to test for drugs since June of 2004 and did not test until February of 2005. Third, since the drug program had an aftercare component, D.P. was not even close to completing the drug program component of her case plan.

Furthermore, as the juvenile court aptly noted, D.P.’s trial attorney “sloughed” over the issue of visitation. D.P. made excuses and blamed others for her failure to visit the children consistently. Though D.P. had enjoyed unmonitored visits with the children at one point, by the time of the section 388 hearing she was back to having monitored visits again.

Accordingly, apart from the additional requirement that the requested modifications be in the “best interests of the child[ren]” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529)--which is akin to the requirement discussed below of a “benefit” to the children of continuing the relationship to defeat the termination of parental rights--D.P. did not establish the necessary changed circumstances for a section 388 petition. D.P.’s belated and uncompleted efforts established at best only changing circumstances, rather than the requisite changed circumstances. (In re Casey D., supra, 70 Cal.App.4th at p. 47, 49.) The juvenile court thus did not abuse its broad discretion in finding she had not established changed circumstances, and in denying her section 388 petition.

II. Substantial evidence supports the juvenile court’s order terminating parental rights.

When a juvenile court reaches the selection and implementation stage of the proceedings (§ 366.26), with a prior determination to end parent-child reunification services, the court must select either adoption, guardianship or long-term foster care. (In re Teneka W. (1995) 37 Cal.App.4th 721, 728.) Although adoption requires termination of the natural parent’s parental rights (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420), in selecting among the three plans, the legislative preference is for adoption over guardianship or long-term foster care, since the latter two options are not permanent placements. (In re Teneka W., supra, 37 Cal.App.4th at p. 728; see also In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) If the child is likely to be adopted, adoption is the preferred permanent plan. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.)

“[C]onsideration of the child’s best interests is inherent in the legislative procedure for selecting and implementing a permanent plan.” (Id. at p at 1165; see also In re Cliffton B. (2000) 81 Cal.App.4th 415, 427.) If a child is likely to be adopted, parental rights must be terminated unless one of four enumerated exceptions applies. (§ 366.26, subd. (c)(1); see In re Jasmine J. (1996) 46 Cal.App.4th 1802, 1807.) The exception at issue here, section 366.26, subdivision (c)(1)(A), provides that the court may not terminate parental rights if termination 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.”

The requisite finding of “benefit” in this exception has been interpreted to mean: “[T]he relationship [must be one which] 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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The burden is on the parent to prove the existence of this exception. (In re Tabatha G., supra, 45 Cal.App.4th at p. 1164; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)

Appellate review of a challenge to the juvenile court’s finding of the inapplicability of the above statutory exception is limited to considering whether substantial evidence supports the finding. (See In re Derek W. (1999) 73 Cal.App.4th 823, 826-827.) Under that standard, the appellate court cannot reweigh the evidence or substitute its judgment for that of the juvenile court. (In re Casey D., supra, 70 Cal.App.4th 38, 52.) Rather, the appellate court views the evidence in the light most favorable to the prevailing party and makes every reasonable inference in support of the judgment. (Id. at p. 53.)

In the present case, substantial evidence supports the juvenile court’s order terminating parental rights. D.P. failed to show that she had maintained either the requisite regular visitation and contact, or that the children would benefit from continuing the relationship with her.

D.P. complains that her efforts to visit the children were thwarted or deliberately impeded. However, the facts previously detailed establish that it was D.P. who avoided her obligation to obtain an approved monitor and that her diminished ability to visit with the children was largely the result of that negligence. Also, although D.P. complained that the caretaker (her ex-mother-in-law) brought the children to her late or sometimes not at all, the juvenile court aptly noted that there was no order for the caretaker to provide a “limo service,” and that transportation was D.P.’s responsibility. Thus, D.P. had the opportunity to see her children more frequently, but she failed to take advantage of the maximum amount of time that she could have spent with them.

Regarding the second prong of the statutory exception to termination of parental rights, D.P. also failed to satisfy the requirement that the children “would benefit from continuing the relationship” with her. (§ 366.26, subd. (c)(1)(A).) D.P. emphasizes that on September 4, 2005, A.P. cried at the end of a visit with her because she wanted to spend more time with D.P. Nonetheless, the children were not observed to have had, repeatedly or over a period of time, a significant attachment to D.P. (Cf. In re Michael D. (1996) 51 Cal.App.4th 1074, 1087.) Nor did D.P. occupy a true parental role in their lives by assuming the responsibilities and duties of a parent. Rather, F.C.’s grandmother was the one who tended to the children’s needs, and whom they looked to as their primary caregiver and called “mami.”

Because D.P. failed to take full advantage of her visitation rights, she did not develop a beneficial relationship with the children. Although she may not have had the opportunity to visit on a daily basis, she could have visited more often than she did. And she certainly could have visited more often when F.C. was hospitalized with pneumonia. D.P. also could have arranged to have taken A.P. to her various audiology and other medical appointments, but she apparently chose not to do so.

We also note that D.P. did not always act in a loving and parental role during her contact with the children. During some of her monitored visits, D.P. was appropriate and playful with the children. However, D.P. often acted out and behaved aggressively in front of the children, threatened the caretakers in the presence of the children, and shouted profanities at people the children cared for.

Accordingly, substantial evidence supports the conclusion of the inapplicability of the regular visitation and benefit exception (§ 366.26, subd. (c)(1)(A)) to the Legislature’s preference for adoptive placement. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1346.) The juvenile court did not err in terminating D.P.’s parental rights and freeing the children for adoption by a grandparent.

DISPOSITION

The orders under review are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS.

BOREN, P.J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.

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^[1] F.C.’s father, Antonio C., and A.P.’s father, Andres P., are not parties to this appeal.

^[2] All statutory references are to the Welfare and Institutions Code, unless otherwise specified.

^[3] D.P. gave birth to the children’s older sibling, George F., while she was a minor. The juvenile court declared George a dependent as a result of D.P.’s inability to care for him; he was eventually adopted by the maternal grandmother.

George F. is not a party to the present appeal.