In re Joshua C.

Filed 3/15/07 In re Joshua C. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from orders of the Superior Court of Los Angeles County, Steven Berman, Referee. Affirmed.

Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Lisa Proft, Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION

A mother appeals from a juvenile court order denying her Welfare and Institutions Code section 388[1] petition, and from an order terminating the mothers parental rights. We conclude that because the mother did not show new evidence or changed circumstances and did not provide evidence that modification of the prior orders would be in her childs best interests, summary denial of the mothers section 388 petition without a hearing was not an abuse of discretion. We also conclude that the mother has not shown error in the juvenile courts finding that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply. We affirm the orders.

FACTUAL AND PROCEDURAL HISTORY

Detention: On December 14, 2004, the paternal grandmother brought three-year-old Joshua C., the son of Guadalupe C. (Mother) and Faustino G. (Father) to a police station because the child had bruises on his upper arm and lower back, and small older bruises on his body. Paternal grandmother explained that this was not the first time he had this many bruises, and said Mother was not a good mother. Father was incarcerated. Mother said she had no idea how the bruisesa golf ball-sized bruise on both Joshuas upper arms that looked like bite marks, and a similar, baseball-sized mark on Joshuas left thighappeared on Joshuas body. She said she had not noticed them. Mother denied any substance abuse. When Joshua was interviewed, he said, David did it. Mother identified David as her boyfriend.

At a second interview on December 28, 2004, Mother again said she did not know how Joshua became bruised. Maternal grandmother said Mother neglected her children, left for days at a time with no communication about her whereabouts, was irresponsible, and socialized with inappropriate friends. Maternal grandmother believed that Mother might be using drugs because of her sporadic behavior.

On January 4, 2005, Mother told a childrens social worker (CSW) that she had used drugs on New Years Eve while staying at her boyfriend Davids home, but denied the children were present. Mother was offered a Voluntary Family Maintenance Contract, and agreed to participate in parenting classes, a drug treatment program, and random drug testing.

On February 17, 2005, a CSW went to Mothers home and saw children running around the house throwing things, eating chips at 10:00 a.m., and not listening to Mother. Joshua climbed the furniture and Mother said nothing, saying they dont listen to me. Joshua called Mother by her first name, Lupe, and did not call her Mother. Maternal grandmother asked to speak to the CSW alone, and said that Mother continued to leave for days at a time without making appropriate arrangements for the children. Mother did not leave food for them and did not take them to the doctor when they were sick, leaving these responsibilities to maternal grandmother. Maternal grandmother said she had to bathe the children if Mother did not do it. Mother did not sleep with the children, who slept in maternal grandmothers bedroom. Mother came and went as she pleased, and cared only about David. After initially denying these allegations, Mother admitted that she left often but only to visit her boyfriend David in jail, and often stayed with Davids mother afterward instead of coming home. Mother agreed to make appropriate arrangements and not leave the children for days at a time.

On March 8, 2005, it was reported that Mother had broken confidentiality at her drug treatment program by revealing to David the identity of another woman attending domestic abuse classes. This placed the womans life at risk when a man came in with a gun and threatened to kill his girlfriend. Mother was told she could remain in the program only if she respected confidentiality and fully complied with the drug program. Mother agreed. Mother stated that she had married David G. at Wayside Jail.

On April 28, 2005, maternal aunt Berenice C. stated that she had filed for guardianship of Joshua C.

On May 3, 2005, an IHOC worker who saw Mother weekly in her home to help her with discipline and behavior modification of the children, stated concerns about Mothers ability to handle the children. When questioned about a no-show drug test on April 29, 2005, Mother said she forgot to go to test. On May 5, 2005, Mothers drug treatment counselor stated that Mother was not fully participating in her program and missed several Narcotics Anonymous meetings.

The Los Angeles County Department of Children and Family Services (DCFS) convened a family meeting on May 11, 2005, to assist Mother. Maternal grandmother said Mother continued to fail to provide for the children. Berenice C. said she cared for Joshua from Friday to Sunday night since December 2004. Other family members said Mother appeared to be more attentive to David G. than to her children. The DCFS recommended a Voluntary Family Reunification Plan, and that Joshua remain with Berenice C. and Brianna remain with her father so that Mother could complete her programs. Although Mother at first agreed, by May 12, 2005, Mother refused a Voluntary Family Reunification Plan and said she would rather have juvenile court involvement.

Mothers failure to comply with and refusal to participate in her Voluntary Family Maintenance Contract, failure to drug test regularly and fully participate in a drug treatment program, and her limited care and supervision of Joshua and Brianna caused the DCFS to recommend the filing of a petition on the childrens behalf.

Based on Mothers statement that she had no idea how Joshua sustained numerous bruises to his body; that after Joshua said David gave him the bruises, Mother did not believe him; that after knowing of these concerns Mother married David G. while he was incarcerated; that Mother planned to take the children to live with her and David G.; that in her drug program Mother failed to attend Narcotics Anonymous meetings and had a missed drug test; that Mother failed to see that these concerns affected her childrens welfare; and that Mother herself asked for juvenile court intervention, the DCFS detained Joshua and Brianna on May 18, 2005, with Joshua placed with his maternal aunt Berenice C. and Brianna placed with her father Jaime G.

Section 300 Petition: The DCFS filed a section 300 petition on May 23, 2005, alleging violations of section 300, subdivision (a) (risk of serious physical harm, in that Joshua C. s father, Faustino G., had a violent criminal history, including a conviction for second degree robbery using a firearm) and subdivision (b) (failure to protect: (1) Joshua had bruises on his arms and leg caused by Mothers male companion David G., for which Mother provided no explanation, did not seek medical attention, and allowed David G. unlimited contact with Joshua even after his injuries and explanation of their cause; (2) Mothers history of substance abuse and use of illicit substances in 2005, periodically rendering her unfit to care for the children; and (3) Joshua C.s father, Faustino G.s violent criminal history, including his second degree burglary conviction).

On May 23, 2005, the juvenile court found there was a prima facie case to detain Joshua and Brianna, ordered them to remain detained, ordered the DCFS to provide family reunification services to the children and to their parents, and ordered monitored three-hour visits for Mother three times a week.

For a July 18, 2005, adjudication hearing the DCFS reported that Joshuas relatives had witnessed physical abuse. Aunt Berenice C. stated that Joshua said David G. hit him with a stick and bit him. Maternal grandmother Sylvia C. stated that David bit Joshua, leaving bite marks on his arm, buttocks, and leg. Mother never explained how Joshua received the bite marks. Paternal aunt Graciella G. stated that when Mother brought Joshua to her house, he had bruises on his upper leg, arms, and one on his back, which looked like an adults bite marks. Joshua said David did it. Paternal grandfather Dionicio G. also said Joshua had bruises on his legs and outer thighs. Paternal grandmother Maria G. said that when Mother brought Joshua, he was hungry and dirty. When Maria G. asked Mother how she could bring him in that condition, Mother just left with a friend. When Maria G. bathed Joshua, she saw bruises that looked like bite marks on his back, buttocks, arms, legs, and groin. Joshua said David bit him.

Regarding the allegation that Mothers substance abuse rendered her unfit to care for her children, Berenice C. stated that Mother once disappeared with the children for two days, after which Jaime G. found her and retrieved Joshua and Brianna, both of whom were very dirty. Maternal uncle Charlie C. said he had seen Mother take pills. Paternal aunt Graciella G. said she had seen Mother use crystal three years earlier. Paternal grandfather Dionicio G. stated that he had never seen Mother use drugs but had heard from other people that Mother used drugs.

Adjudication/Disposition: On July 18, 2005, the juvenile court sustained allegations of the petition pursuant to section 300, subdivisions (a) and (b), and declared Joshua and Brianna dependent children of the court. The juvenile court ordered Brianna placed in her fathers home, and ordered custody of Joshua placed in the care of DCFS for suitable placement. The juvenile court ordered Mother to complete a parenting class and a substance abuse rehabilitation program with counseling and random testing, to participate in individual counseling to address all case issues, including meeting the childrens needs and selecting safe, appropriate environments and supervision, and on the effect on the children of her substance abuse, family relationships and conduct. The juvenile court set a review hearing for January 13, 2006.

Review Period from July 18, 2005, to January 13, 2006: In June 2005 Mother had enrolled in a MELA Counseling Services drug and alcohol outpatient program, and received treatment services, counseling, parenting education, and random drug testing. By a July 15, 2005, letter, the Parenting Counselor and Program Director verified Mothers enrollment and reported that Mother completed her assignments, was punctual, had missed only one class due to illness and caught up on material she missed, actively participated in class, and had a positive attitude. Mother completed this parenting program on September 12, 2005. In her drug treatment program, however, Mother was non-compliant and had excessive absences. Mother attended group only one time per week rather than three, did not pay attention in classes, and appeared to be in a daze. Mother was put on a contract because of her inconsistent participation and poor attendance and was suspended for two weeks to rearrange her work schedule. When Mother failed to make changes, was late two weeks in October 2005, and admitted forging her 12-step meeting form, she was discharged from the program on October 26, 2005. Despite a 30-day grace period, as of January 13, 2006, Mother had not re-enrolled.

On December 28, 2004, before the children were detained, the DCFS scheduled Mother for random drug testing with Pacific Toxicology. Mother later stated she thought she did not have to test with Pacific Toxicology because she was testing with her program. The CSW explained that Mother had to continue to test with Pacific Toxicology as any missed test was considered a dirty test. Mother had four clean tests on September 1, October 12, October 28, and November 21, 2005, but she tested inconsistently, and received eight no-show dirty tests between July 5 and December 6, 2005. The DCFS concluded that Mother had failed to comply with court-ordered programs.

Mother had monitored visits with Joshua on Saturdays and Sundays. From August and November of 2005, Mother visited with Joshua only nine times. Although Mother was allowed a three-hour visit, the caretakers reported that sometimes Mother visited for only one hour. The maternal aunt and uncle reported that on occasion Mothers visits were positive, but at times Mother appeared distracted or behaved in a manner inconsistent with Joshuas needs. Mother sometimes failed to appear or canceled. Mother initially had three visits a week on Friday, Saturday, and Sunday, but Mother reduced her visits to once a week on Sunday for one hour.

From July 2005 through January 2006, Joshua continued to live with his maternal aunt and uncle, Berenice and Sergio C., in whose care he was doing well and with whom he was happy and loving. Joshua attended preschool and participated in counseling with a therapist. Berenice and Sergio C. were interested in adopting Joshua, wanted to provide him with a stable home, and would maintain a relationship with Briannas father to maintain sibling visits between Joshua and Brianna.

The DCFS concluded that Mother had not complied with court-ordered programs, that it was unlikely that she would complete those programs within the next six months, and that the issues that brought this family to the attention of the DCFS and the juvenile court still prevailed. The DCFS recommended termination of reunification services and setting a section 366.26 hearing to select a permanent plan for Joshua.

Order Terminating Reunification Services and Setting Section 366.26 Hearing: On January 13, 2006, the juvenile court found Mother not in compliance with the case plan as to Joshua and ordered reunification services terminated as to Mother. A section 366.26 hearing as to Joshua was set and later continued to June 14, 2006.

Mothers Section 388 Petition: On June 13, 2006, Mother filed a section 388 petition seeking to modify the order for custody and visitation and the orders terminating family reunification services and setting the section 366.26 hearing. The petition alleged that Mother was drug free and testing clean, and would complete a drug counseling program on July 13, 2006. Mothers petition alleged that she and David G. never married, and she had separated from David G. and had no contact with him since August 2005. Mother alleged that she completed a parenting program, was employed at FedEx, maintained regular contact with Joshua C., including visits twice a week and as often as her sister would allow. Mothers petition alleged that Joshua loved her and his grandparents, that his aunt did not allow him substantial contact, and that Joshua cried when he was separated from Mother and asked to visit with his grandparents. Mothers petition alleged that she was able to provide permanently for Joshua in a safe environment. Mothers petition sought an order to place Joshua in the home of Mother or with maternal grandparents, with Mother to reside with maternal grandparents, unmonitored visits for Mother, and further reunification services.

The juvenile court denied the petition because the petition failed to state new evidence or a change of circumstances, citing changing circumstances at best and that the petition, filed one day before the section 366.26 hearing, was not timely filed. The juvenile court granted mothers request for a contested section 366.26 hearing and set that matter for July 11, 2006.

Contested Section 366.26 Hearing: For the section 366.26 hearing, the DCFS reported that Joshua lived with his maternal aunt and uncle, Berenice C. and Sergio C., where Joshua had lived since May 18, 2005. He had developed a strong bond with his aunt and uncle. Joshua continued in counseling and his behavior had improved. Joshuas aunt and uncle were committed to adopting him. Berenice C. had been bonded to Joshua since his birth, and she and her husband loved Joshua and wanted to provide him with stability and safety as he grew up within his family. Although young, Joshuas aunt and uncle were mature, responsible people, were both employed, and had no difficulty living within their income and providing for Joshuas needs. The DCFS considered Joshua very adoptable and likely to be adopted.

Joshua had difficulties adjusting after visits with Mother. Mothers visits were not always regular, but she had visited approximately 32 times in the previous six months.

The DCFS recommended termination of parental rights for Mother and alleged father Faustino G.

The contested section 366.26 hearing was held on July 11 and 14, 2006. The DCFS reported that after the January 13, 2006, order terminating family reunification services, Mother enrolled in an outpatient substance abuse program, where she attended individual sessions once a week and enrolled in several group sessions. As of March 15, 2006, Mother was reported to have maintained positive attitudes, consistent progress, attendance, and participation. Mother was reported to display great enthusiasm about her future in recovery, to have a positive attitude change, to be overcoming obstacles that might hinder her recovery, and to be displaying maturity and responsibility by participating in the program. Mothers recovery prevention specialist expected her to have no problem completing her course of recovery. Mother was scheduled to complete the program as of July 13, 2006. Mother continued to test with Pacific Toxicology because of her monitored visits with the children. From January 17 to June 23, 2006, Mother had 10 clean tests and two no-show dirty tests.

Mother had monitored visits with Joshua on Saturdays or Sundays. These visits were reported to be infrequent and sporadic, and on occasion Mother cancelled or failed to show. Mother was appropriate and had good visits with Joshua at times, but could appear distracted or behave inconsistent with Joshuas needs, talking on the phone during a visit or leaving without saying anything to Joshua or caretakers.

Mother said she wanted to reunify with her children and did not want Joshua to be adopted. Mother worked at only one job to be able to rest more and be active in her program. Joshuas maternal aunt and uncle remained interested in adopting Joshua and would provide him with a stable home.

Berenice C. testified that when Joshua first came into her care in May 2005, he was aggressive, angry, and had a foul language problem. He was expelled from day care twice because of his behavior. He hit Berenice C. and her husband a couple of times. After more than a year, however, Joshua had become polite and asked for permission. He had occasional tantrums, but his behavior had greatly improved.

Joshua visited with Mother weekly, on Saturdays and Sundays. Saturday visits were for one hour; Sunday visits were supposed to be for three hours. In visits, Joshua initially became upset and did not want Mother to leave and would throw tantrums. At present, however, Joshua just waived at Mother when she left and said bye. Joshua referred to Mother as Guadalupe. Once or twice a month, if he had seen Mother on a Saturday and was scheduled for another visit on Sunday, Joshua asked why he had to go to the park again, since he saw Mother the previous day.

Approximately once a month, Mother missed a visit or was late. Arguments arose if either Berenice or Mother was late. Once Berenice was late because of traffic, and Mother cursed at Berenice in front of Joshua. Sergio took Joshua away, but Mother continued to yell at Berenice in a mall in front of everyone. Mother left shortly after that, but Joshua had heard what happened and asked Berenice about it.

Overall, Berenice thought visits had a harmful effect on Joshua because Mother made negative comments without thinking about what she was saying. Joshua asked questions about why he lived with Berenice, and why Mother had done certain things. Berenice responded by saying they would ask Mother in the next visit and talk to her, but when they raised an issue Mother tried to brush it off.

Berenice C. did not believe Joshua was attached to Mother, because [h]e doesnt cry when he leaves the visit. He doesnt ask for her . . . . When he asks, hell ask before the visit, what is she going to buy me today? I see to me . . . shes . . . like a big friend who buys him things, treats. Joshua enjoyed visits with Mother, but wanted to do other things with his aunt and uncle during the visit. Berenice C. had to remind him that he was visiting his mother and that they could do what he wanted after the visit. Mothers visits with Joshua at a park lasted no more than an hour. If Joshua threw a tantrum during these visits, Mother reacted by telling Berenice C. to deal with it or by walking away and telling Joshua she would leave if he did not behave. Sometimes that worked but other times the tantrum continued. Joshua used to have tantrums frequently when visits with Mother started, and had one or two in each visit. In more recent visits, Joshuas tantrums have stopped.

Mother had never asked about how Joshua was doing in school, and had never talked to Joshuas teachers. Since Berenice C. had cared for Joshua, Mother had not attended a doctors appointment with Joshua, and had not asked about his physical health. On one occasion, when Berenice C. started to tell Mother about Joshuas recent visit to the dentist, it seemed as though Mother did not care.

Berenice C. estimated that Mothers weekly Saturday and Sunday visits with Joshua totaled about two hours per week. Berenice C. stated her opinion that it was not a benefit for Joshua to have a relationship with his mother.

Mother also testified. She visited Joshua twice a week. For the first six months after he was detained in May 2005, Mother saw Joshua only 3 or 4 times a month. When Joshua acted out during visits, Mother calmed him down by giving him options and telling him that after Joshua talked to Berenice C., he and Mother could play or buy ice cream. In the last two months Mother noticed that Joshua talked more and asked more questions. Mother testified that since January 2006 her visits were more consistent, if Berenice C. allowed them to be. Only once did Mothers visits last more than an hour.

Mother testified that Joshua was happy and excited at visits when he saw her, ran to her, and held her hand. Formerly Joshua called Mother Lupe, but he now called her Mommy. He called Berenice C. Tia, never Mommy.

Mother testified that Joshua asked questions and shared his concerns. He asked why he did not live with her, and Mother tried to explain that to him.

Mothers visits with Joshua ended by her walking him to the car if they were at the park. Mother told Joshua she loves him, and he told Mother he loves her. Two weeks earlier Joshua asked, in front of Berenice C., when he was going to go back home with Mother. Mother testified that Joshua did not want to leave.

Mother could not name the school Joshua attended or Joshuas doctor or dentist. Mother testified that Joshua talked about Lisa, his psychologist.

Termination of parental rights: The juvenile court found Mothers showing had not satisfied the section 366.26, subdivision (c)(1)(A) exception. The juvenile court found it would be detrimental to the child to be returned to the parents, ordered the parental rights of Mother and Father Faustino G. terminated, and transferred custody of Joshua to the DCFS for adoptive planning and placement.

Appeal: Mother filed a timely notice of appeal from the orders terminating parental rights and denying Mothers section 388 petition.

ISSUES

Mother claims on appeal that the juvenile court:

1. Committed reversible error in summarily denying Mothers section 388 petition; and

2. Erroneously failed to find that Joshua C. would benefit from continuing his relationship with Mother.

DISCUSSION

1. Summary Denial of Mothers Section 388 Petition Was Not

an Abuse of Discretion

Mother claims on appeal that the juvenile court erroneously denied her section 388 petition to set aside or modify orders terminating family reunification services and setting a section 366.26 hearing. Mother contends she made a prima facie showing of change of circumstances and new evidence that required a hearing on her petition.

Under section 388, a parent 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, that [(1)] there is a change of circumstances or new evidence, and [(2)] the proposed modification is in the minors best interests. (In re S. M. (2004) 118 Cal.App.4th 1108, 1119.) In determining whether the petition makes the necessary showing, the court may consider the factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.) The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) This court reviews a summary denial of a section 388 petition for abuse of discretion. (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348.)

a. Mother Did Not Show Changed Circumstances or New Evidence

To show that a hearing was required, Mothers petition had to make a prima facie showing that a change of circumstances or new evidence justified an order placing Joshua in Mothers home or with maternal grandparents with Mother living in their home, unmonitored visits for Mother, and further reunification services.

Although the June 13, 2006, petition asserted that Mother was drug free, tested clean, and attended a drug and counseling program, the supporting evidence concerning Mothers progress in that program was in a letter dated April 7, 2006, more than two months before the petition was filed and more than three months before the expected completion of the program on July 13, 2006. The letter, from a Recovery Prevention Specialist, stated that Mother understood that to complete the program successfully, her treatment included Narcotics Anonymous meetings and a sponsor. The petition contained no evidence that Mother participated in Narcotics Anonymous meetings and had a sponsor.

The petition attached a copy of a September 13, 2005, letter confirming that Mother had successfully completed the Proud Parenting Program with MELA Counseling Services Center on September 12, 2005. That evidence was not new, as it had been reported to the juvenile court on January 13, 2006.

Although the petition attached evidence of Mothers drug tests, between January 17 and June 23, 2006, Mother had 10 clean tests but also two no-show tests, which were considered dirty or positive tests. Mother had twice previously failed to complete a drug treatment program. Although Mother had some prospect of successfully completing her drug treatment this time, her time of sobriety was brief when compared to the much longer time during which she had used drugs. (See In re Angel B. (2002) 97 Cal.App.4th 454, 463.) Given that Mother had not yet completed her drug and counseling program, the evidence in the petition was not a prima facie showing that Mother was fully rehabilitated.

As the juvenile court found, Mothers evidence showed at best that her circumstances were changing, which is not sufficient to warrant a hearing on a section 388 petition. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1072.)

b. There Was No Evidence That Modification of the Prior Order

Would Be in Joshuas Best Interests

To prevail on her petition, Mother also had to meet her burden of showing that a change in placement, unmonitored visitation, and resumption of reunification services would be in Joshuas best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 48.)

(i) Mothers Petition Did Not Show That a Change of

Placement Would Be in Joshuas Best Interests

In a custody determination, a primary consideration in determining the childs best interest is the goal of assuring the childs need for stability and continuity, a need which grows in importance as the childs custody lengthens. Thus a parent moving for a change of placement must meet the burden of showing, by new evidence or changed circumstances, that a change of placement is in the childs best interests. This burden is particularly difficult to meet after termination of reunification services, when the paramount interest ceases to be the parents interest in the care, custody and companionship of the child, and instead shifts to the childs needs for permanency and stability. (In re Angel B., supra, 97 Cal.App.4th at p. 464.) [T]here is a rebuttable presumption that continued foster care is in the best interest of the child [citation]; such presumption obviously applies with even greater strength when the permanent plan is adoption rather than foster care. A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, what is in the best interest of the child. (Ibid.)

Joshua had lived with his maternal aunt and uncle for more than 14 months since he was detained on May 18, 2005. He was doing well in their care, and he was happy and loving with them. Joshuas maternal aunt was described as very bonded to him since his birth. The maternal aunt and uncle were both employed and had no difficulty providing for Joshuas needs. Joshuas maternal aunt and uncle stated that they were interested in adopting Joshua C. and wanted to provide him with a stable home.

To support modification of the custody order, Mothers petition stated that Joshua loved her and his grandparents; that his maternal aunt did not allow him to have substantial contact; that Joshua cried when he was separated from Mother and asked to visit with his grandparents; and that Mother was able to provide for Joshua permanently in a safe environment. This showing did not rebut the presumption that, since reunification services were no longer provided, stability in an existing placement was in Joshuas best interests, particularly when the placement was leading to adoption by long-term caretakers. (In re Angel B., supra, 97 Cal.App.4th at p. 465.)

We conclude that Mothers petition did not meet her burden of showing that a change in Joshuas placement would be in his best interests.

(ii) Mothers Petition Did Not Show That a Change to

Unmonitored Visitation Would Be in Joshuas

Best Interests

Mothers petition sought modification of the order for monitored visitation. Mothers drug use made monitored visitation necessary. As we have found, her petition did not show that she was fully rehabilitated. Therefore the need for monitored visitation continued, and Mother did not meet her burden of showing that changing the visitation order from monitored to unmonitored visitation would be in Joshuas best interests.

(iii) Mothers Petition Did Not Show That an Order to Resume

Providing Reunification Services Would Be in Joshuas Best Interests

Mothers petition sought replacement of the order terminating reunification services with an order for provision of further reunification services. Mothers section 388 petition seeking this proposed change of order, brought one day before the section 366.26 hearing, created the prospect of delaying Joshuas need for stability and continuity for a further six months. At this point Joshuas interest in stability was the courts foremost concern and outweighed any interest in reunification. (In re Edward H. (1996) 43 Cal.App.4th 584, 594.) A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the childs best interests. (In re Casey D., supra, 70 Cal.App.4th at p. 47.)

c. Conclusion

We conclude that the summary denial of Mothers section 388 petition was not an abuse of the juvenile courts discretion.

2. Mother Has Not Shown Error in the Finding That the Beneficial

Relationship Exception of Section 366.26, Subdivision (c)(1)(A) Did Not Apply

Mother claims on appeal that the juvenile court erroneously found that the beneficial relationship of section 366.26, subdivision (c)(1)(A) did not apply.

a. The Beneficial Relationship Exception of Section 366.26,

Subdivision (c)(1)(A)

Section 366.26, subdivision (c)(1)(A),^[[2]] provides that if the juvenile court determines, by a clear and convincing standard, that it is likely a minor will be adopted, then it shall terminate parental rights and order the child placed for adoption unless the court finds a compelling reason for determining that termination would be detrimental to the child. One such reason is that the parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (In re Angel B., supra, 97 Cal.App.4th at p. 466; italics in original.)

When contesting termination of parental rights based on the section 366.26, subdivision (c)(1)(A) exception, the parent has the burden of showing either that (1) continuing the parent-child relationship will promote the childs well-being to such a degree as to outweigh the well-being the child would gain in a permanent home with adoptive parents, or (2) termination of the parental relationship would be detrimental to the child. (In re Angel B., supra, at p. 466.) [T]he parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. (Ibid., italics in original.) The biological parent must show more than that the child would derive some benefit from continuing a relationship maintained during parent-child visitation. A dependent child of the court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the childs need for a parent. (Ibid.)

This court reviews a juvenile court finding that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply according to the substantial evidence test. (In re Dakota H. (2005) 132 Cal.App.4th 212, 227-228; In re Casey D., supra, 70 Cal.App.4th at p. 53.)

b. Mother Maintained Regular Visitation and Contact with Joshua

Mother argues that she maintained regular visitation and contact with Joshua.

Mother was scheduled to visit with Joshua on Saturdays and Sundays. Berenice C. estimated that these visits lasted about two hours per week. Although Mothers visits were not always regular, and Mother cancelled or failed to show for some visits, nonetheless the DCFS reported that Mother had visited approximately 32 times in the previous six months. The evidence shows that Mother maintained regular visitation and contact with Joshua.

c. Mother Has Not Shown That Joshua Would Benefit

from Continuing the Parent-Child Relationship

Mother also argues that Joshua would benefit from maintaining his relationship with Mother.

When determining whether a relationship is important and beneficial, the factors to be considered are: (1) the childs age; (2) the portion of the childs life spent in the parents custody; (3) the positive or negative effect of interaction between parent and child; and (4) the childs particular needs. To trigger application of the section 366.26, subdivision (c)(1)(A) exception, the relationship must be such that the child would suffer detriment from its termination. (In re Angel B., supra, 97 Cal.App.4th at p. 467.)

At four years old, Joshua was still a young child. He had lived with Mother until he was three years and seven months old, but during this time he was cared for by his maternal grandmother, his maternal aunt, and other family members during Mothers frequent absencesone of the problems that led to the detention of Mothers children. Some of Joshuas interactions with Mother during visits were positive, but there was also evidence that during visits Mother was distracted, talked on the phone, or left without saying anything to Joshua. Mother also made negative comments, which had a harmful effect on Joshua. Joshuas caregiver and aunt did not believe that Joshua was attached to Mother, who he referred to by her first name, because he did not cry when he left the visit, did not ask for her, and was only interested in what Mother would buy for him. The aunt termed Mother a friend. There was no evidence that Joshua had particular needs that could be met by Mother but not by his caregiver aunt and uncle.

These factors support the finding that the section 366.26, subdivision (c)(1)(A) exception did not apply. [F]or the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative[.] (In re Angel B., supra, 97 Cal.App.4th at p. 468.) Mother has not presented evidence that Joshuas relationship with her was so significant that its termination would cause detriment to Joshua. (Ibid.)

DISPOSITION

The orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

ALDRICH, J.

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[1] Unless otherwise specified, statutes in this opinion will refer to the Welfare and Institutions Code.

[2] Under this statutory exception, a juvenile court finding that the court has continued to remove the child from the custody of the parent . . . and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to . . . the following circumstance[]: [] (A) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, subd. (c)(1).)