Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County. Steven L. Berman, Juvenile Court Referee. Affirmed. Los Angeles County Super. Ct. No. CK55656
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Associate County Counsel, for Plaintiff and Respondent.
OPINION
ASHMANN-GERST, J.
Appellant Yvonne A. (mother) appeals from a juvenile court order terminating her parental rights to Arturo E. (Arturo), born April 2005. She contends that the juvenile court erred in (1) denying her petition pursuant to Welfare and Institutions Code section 388, and (2) finding that the section 366.26, subdivision (c)(1)(A) exception to termination of parental rights did not apply.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
As of January 1, 2008, the exception previously set forth in section 366.26, subdivision (c)(1)(A) is now found in section 366.26, subdivision (c)(1)(B)(i). Given that this case involves incidents and hearings that occurred prior to January 1, 2008, we refer to the former subdivision of section 366.26 (§ 366.26, subd. (c)(1)(A)).
We conclude that the juvenile court did not abuse its discretion in denying mother’s section 388 petition. She failed to demonstrate a change of circumstances and that returning Arturo to her care was in his best interests. Likewise, substantial evidence supports the juvenile court’s finding that the contact and benefit exception to the termination of parental rights did not apply.
Accordingly, the juvenile court’s orders are affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Mother is the mother of four dependent children: Richard A. (Richard), Bianca A. (Bianca), Cynthia A. (Cynthia), and Arturo. Only Arturo is the subject of this appeal. Mother’s live-in boyfriend, Arturo E. (father), is Arturo’s father.
Arturo’s Siblings
On May 27, 2004, Richard, Bianca, and Cynthia were detained from their parents’ care. On July 2, 2004, the juvenile court sustained a section 300 petition filed on their behalf as a result of mother’s alleged 27-year history of substance abuse, including methamphetamines and alcohol. According to the petition, mother had resumed drug use after having completed a substance abuse rehabilitation program. Also, mother had left the children with their maternal grandmother, who was in ill-health and unable to properly care for them. Three months later, Richard, Bianca, and Cynthia were declared dependents of the juvenile court; they were suitably placed in foster care.
The sustained petition alleged that mother had a 23-year history of substance abuse, even though mother was only 34 years old at that time. We note the discrepancies regarding mother’s alleged history of drug abuse in the petitions filed by DCFS. The petition filed on behalf of Arturo’s siblings alleged a 27-year history, the sustained petition alleged a 23-year history, and the petition filed on behalf of Arturo alleged a 24-year history.
Arturo’s Detention
After the family came to the juvenile court’s attention, mother gave birth to Arturo. Mother and father “concealed . . . mother’s pregnancy and . . . Arturo . . . from . . . DCFS for the first four months of the child’s life.” The DCFS social worker discovered Arturo during an unannounced home visit on August 8, 2005, at which time mother explained that she was afraid that Arturo would be taken from her because she had used drugs during the early stages of her pregnancy.
DCFS and mother entered into a voluntary family maintenance contract (VFM) for Arturo, and Arturo was left in her care. Shortly thereafter, the juvenile court ordered mother to participate in weekly drug testing and to meet with the social worker.
During the next two months, mother drug tested twice, with negative results. Then, however, she missed three tests. While mother represented that she had enrolled in a drug program, on September 1, 2005, DCFS received an emergency referral on behalf of Arturo. The referral alleged that Arturo was at a substantial risk of abuse and neglect by mother because she was out drinking and using drugs. Mother had left Arturo with his maternal grandmother, who was physically disabled by Parkinson’s disease.
The social worker went to the family home that day and found the maternal grandmother, but was unable to assess the family. She provided mother with referrals.
On September 7, 2005, the social worker returned to the family home and met with mother. Mother signed the VFM, and reported to the social worker that father had a criminal court case for a drug-related arrest. The social worker requested that mother and father meet with her at DCFS’s office on September 13, 2005.
Mother and father met with the social worker as scheduled. At that meeting, the social worker reviewed the terms of the VFM with them and explained that their failure to comply with its terms would place Arturo at risk of being detained.
On October 14, 2005, mother reported that she was in compliance with the VFM.
On October 20, 2005, DCFS determined that mother and father were not in compliance with the VFM because they had failed to submit to random drug tests and had failed to participate in services. Specifically, while mother had tested clean on October 5, 2005, and October 13, 2005, she failed to comply with drug testing on September 12, 2005, and September 28, 2005, as ordered by the juvenile court in Arturo’s siblings’ case, and on October 20, 2005. On October 21, 2005, mother reported that she had enrolled in a substance abuse program, but had not tested weekly because she “forgot” that she was supposed to test weekly, and she did not know that she was supposed to call the “800” testing number daily. She also stated that she did not know that she was supposed to test on the prior day. She believed that she deserved another chance because she “was given like six chances before my other children were taken.”
Arturo was taken into protective custody on October 21, 2005. At that time, the social worker provided mother and father with further referrals. They were unable to provide the names or contact information for any relatives that would have been willing to care for Arturo.
On October 26, 2005, DCFS filed a section 300 petition on behalf of Arturo, pursuant to subdivisions (b) and (j). The petition alleged that mother had a 24-year history of substance abuse, which rendered her incapable of caring for Arturo; mother and father had failed to comply with the VFM by failing to enroll in drug treatment, engage in random testing, or attend a parenting class; and Arturo’s siblings were current dependents of the juvenile court and were receiving reunification services.
At the detention hearing, the juvenile court found a prima facie case for detaining Arturo under section 300, subdivisions (b) and (j) and that a substantial danger existed to his physical and emotional health. The juvenile court ordered DCFS to provide the parents with family reunification services, including drug counseling, drug testing, parenting classes, and individual counseling. The juvenile court also ordered monitored visits for mother for a minimum of three hours per week. Moreover, the juvenile court ordered a Regional Center evaluation for Arturo, and instructed DCFS to try to place him with his siblings.
The matter was then continued for a pretrial resolution conference.
Jurisdiction/Disposition
In its November 28, 2005, jurisdiction/disposition report, DCFS reported that mother had a July 22, 1991, conviction for theft of personal property. Mother also advised the social worker that she was on probation for a drug-related arrest in December 2004. The substance abuse program that she had participated in met the Proposition 36 requirements that the criminal court ordered her to complete.
Mother, who was 35 years old, reported that she was 25 years old when she first experimented with drugs and alcohol. She stated that the allegation in the petition that she had a 24-year drug history was wrong because she did not begin using drugs when she was 10 years old; she did not even know what drugs were at that age. Mother indicated that she had been sober from drugs for one year, and that she drank alcohol twice during her pregnancy with Arturo. She represented that she had been sober for over one year.
Regarding her older children, mother indicated that she had not completed her case plan programs because she was having difficulty enrolling in them. The referrals that she had received were for programs with long waiting lists. She also had not enrolled in individual counseling or parenting classes because she could not enroll in all of the court-ordered services simultaneously, and she believed that it was important to address her drug problems first. Additionally, she was not working and had no income.
When asked why she did not adhere to the terms of the VFM, she explained that she was told that she had six months to sign up for programs; she did not know that she had to complete the programs within six months.
Father reported that mother used methamphetamines.
Arturo had been placed in a foster home because there were no relatives available for placement.
The matter was continued to January 10, 2006.
In its January 10, 2006, interim review report, the social worker reported that mother had not made any contact with DCFS during December 2005.
DCFS also advised the juvenile court that mother was in compliance with her probation; she was participating in Atlantic Recovery Outpatient Counseling (Atlantic) program. Her counselor reported her “overall participation” as good, as she had only missed 19 out of 113 group sessions. The counselor believed that her recent absence in five clinical group sessions may have been related to the Christmas holidays. She also was drug testing through Pacific Toxicology. She drug tested on December 13, 2005, and January 5, 2006, with negative results. She had a “no show” drug test result on December 29, 2005.
At the hearing, the juvenile court sustained the petition as pled. Arturo was declared a dependent of the juvenile court, and he was removed from his parents’ physical custody for suitable placement. Mother was ordered to complete drug counseling, alcohol counseling, random drug and alcohol testing once a week, parenting education, and individual counseling to address case issues. Mother’s visits were to remain monitored, with DCFS discretion to liberalize. The juvenile court advised mother that she only had six months to complete her case plan.
The matter was then set for a six-month review hearing.
Six-month Review Hearing
In its June 26, 2006, status review report, DCFS updated the juvenile court regarding the reunification period. DCFS reported that mother and father had enrolled in a 20-week parenting program, and both were participating in outpatient drug rehabilitation programs. She was still participating in and complying with all of the requirements of Atlantic, and she was expected to complete the program on July 11, 2006. She was attending the required 12-step program and had finished the required clinical groups. As for her probation, mother consistently reported to her probation officer, and she was almost done paying off her restitution debt. While she had been testing randomly for drugs and alcohol (with negative results), she had four no-show reports. According to mother, she was unable to test on April 6, 2006 because she had lost her photo identification. She was scheduled to complete her parenting course in July 2006.
Mother still had not enrolled in individual counseling services.
The social worker was concerned about mother. The social worker reported that at the January 12, 2006, meeting, mother smelled of alcohol. When questioned, mother indicated that she had not drunk alcohol in about a year; later she stated that it had been about 10 months. On another occasion, Arturo’s foster mother reported that mother smelled of alcohol and was sweating profusely.
As for counseling, mother and father had had difficulty enrolling in individual counseling, primarily because of the cost and extensive waiting lists. Mother had, however, met with several counseling programs and tried to obtain counseling services. The social worker was able to negotiate a lower rate for the parents through West Advisory Christian Center. She also provided the parents with additional referrals for alcohol counseling services that provided general counseling.
Mother and father were visiting with Arturo regularly, twice a week at a local McDonald’s. They were consistent and punctual with the visits, although they had missed one. Both the social worker and the foster mother opined that Arturo was more attached to father than to mother, and father was more affectionate and attentive to him. Mother’s interactions with Arturo were described as more limited.
Arturo had had seven sibling visits, which mother attended. On one such occasion, Arturo’s siblings’ caretaker reported that mother and father appeared to have hangovers, although they did not smell of alcohol. Mother appeared tired, spoke rapidly, and was sweating profusely, even though the weather was cool.
Mother and father had organized and held a birthday party for Arturo, which his siblings attended.
Arturo had been evaluated by the adoptions division, which concluded that he was adoptable. He was developing normally and did not show any signs of fetal alcohol syndrome. Nevertheless, his current foster mother was not interested in adopting him.
Based upon all of the foregoing, DCFS recommended that family reunification services be terminated. The social worker had reservations about mother’s ability to refrain from alcohol use, and father had only minimally complied with his case plan. Mother and father were still residing together.
At the hearing, the juvenile court found that the parents were not in compliance with their court-ordered case plan and had not made substantive progress. The juvenile court found that there was no reasonable likelihood that Arturo would be returned to his parents within six months and that returning him to his parents would create a substantial risk of detriment to his well-being. It terminated family reunification services, and set the matter for a section 366.26 hearing.
Permanency Planning
October 23, 2006
On October 23, 2006, DCFS reported that mother and father did not visit Arturo between the time of the June 26, 2006, hearing and July 6, 2006. Since then, they had visited with him once or twice a week. The foster mother reported that they were appropriate and affectionate with Arturo. In fact, the foster mother noticed that mother appeared more attentive to him. She had even telephoned the foster mother to see how Arturo was faring.
At the beginning of Arturo’s initial adoption assessment, the foster mother stated that she and her husband were not interested in adopting Arturo; however, in August 2006 she expressed that she would like to adopt him. Meanwhile, on August 31, 2006, Arturo’s maternal uncle telephoned the social worker. He advised her that mother had not been truthful with him about her progress and the possibility of having Arturo returned. Now that Arturo was in the adoption process, he and his wife wanted to adopt Arturo. Thus, on September 28, 2006, Arturo was placed in their home.
At the section 366.26 hearing, DCFS reported that Arturo’s maternal uncle had changed his mind and no longer wanted to keep Arturo in his home. Thus, DCFS was going to replace Arturo back with his foster mother that day and a home study was going to be initiated.
The matter was continued to December 11, 2006, to allow for the home study to progress.
December 11, 2006
On December 11, 2006, the social worker reported that Arturo appeared to be well-bonded with his foster mother. Because an adoptions social worker had not yet been assigned to Arturo’s case, no progress had been made on the home study.
The foster mother reported that the parents continued to visit Arturo weekly and that they treated him well during those visits. Arturo appeared to enjoy the visits. Moreover, mother was calling the foster mother between visits to find out how he was doing.
The juvenile court continued the hearing to March 12, 2007.
March 12, 2007
In an interim review report prepared for the March 12, 2007, hearing, DCFS reported that the foster parents’ home study had not yet been completed, although it was underway. Arturo was considered adoptable and, according to the adoptions social worker, he had a secure attachment and a “special bond” with his foster parents, who had been caring for him since October 2005.
Meanwhile, mother and father continued to visit Arturo weekly, and Arturo looked forward to the visits. Arturo would usually run toward mother and father upon arrival, and they were “appropriate and affectionate” with him. Sibling visits were continuing on a monthly basis as well.
In addition, mother had been participating in individual counseling since December 15, 2006, and she was working part-time.
Because the adoption home study was still not yet complete, the matter was again continued, to June 11, 2007.
June 11, 2007
DCFS submitted a status review report and another section 366.26 report for the June 11, 2007, hearing. Although the foster parents’ home study was not yet finished, the social worker anticipated that it would be completed by the end of June.
Arturo remained bonded with his foster parents. He was affectionate towards them, as he would hug them and seek out their attention. They were proactive in providing Arturo with adequate care and following upon his needs. They stated that they were willing to provide for Arturo’s needs without DCFS’s or the juvenile court’s involvement.
While mother and father had been visiting Arturo twice a week between October 2005 and June 2006, since June 26, 2006, they had only visited him on a weekly basis. The foster mother reported that they had missed some visits in June 2007. Sibling visits were also continuing in the maternal grandmother’s home on a monthly basis. While the parents indicated that they wanted to reunify with Arturo, they had not provided the social worker with any updates on their progress in counseling.
In a last minute information report, DCFS reported that the home study had been approved on June 8, 2007.
At the hearing, mother set a contested selection and implementation hearing to litigate the applicability of section 366.26, subdivision (c)(1)(A); the matter was continued to July 17, 2007.
Mother’s Section 388 Petition
On June 28, 2007, mother filed a section 388 petition requesting that Arturo be placed in her home. She alleged that she had completed a 20-session parenting course as well as the one-year drug treatment program at Atlantic, “a comprehensive live-in drug rehabilitation center that includes but is not limited to, mental health services, individual counseling, family counseling, and random drug testing.” She alleged that she had been drug testing since 2005. Copies of her certificates of completion and some drug testing results were attached to her petition. She alleged that she could provide a “safe and healthy environment for” Arturo, that she understood “the mistakes she [had] made,” and that she had “made significant changes to her lifestyle to ensure that she remain free from drugs and alcohol.” She claimed that it would be in Arturo’s best interests to be returned to her care because she had regularly visited him, they had a loving and caring relationship, and they were emotionally bonded.
The juvenile court set the matter for hearing.
Combined Section 388/Section 366.26 Hearing
At the July 17, 2007, hearing, the juvenile court indicated that it would conduct a combined hearing on mother’s section 388 petition and the section 366.26 issues, and then rule on mother’s section 388 petition first. To begin, the juvenile court received into evidence various DCFS reports.
DCFS Reports
The latest reports included a report confirming the approval of the foster parents’ home study and an update on mother. Mother had not made an appointment or contacted the social worker after the last hearing to review her progress with her case plan. The social worker confirmed that mother had completed the Atlantic program, a parenting course, and drug testing, although mother had missed multiple tests. The social worker also reported that mother was having unmonitored visits with her three older children and that those visits were going well. The social worker recommended that the unmonitored visits with Richard, Bianca, and Cynthia continue and that DCFS be given discretion to liberalize.
Mother’s Testimony
Mother then testified. She was requesting custody of Arturo. She explained that she had completed parenting classes and a Proposition 36 drug program, which included individual drug counseling. She had been discharged from probation. While she was not enrolled in any counseling at the time of the hearing, she was attending Narcotics Anonymous and Alcoholics Anonymous meetings two to three times a week. In fact, she had a sponsor and was on step two of the 12-step program. Mother planned on continuing with the 12-step program.
According to mother, she last tested for drugs in December 2006, and her last results were negative. Since June 2006, she had not been in individual counseling or participated in drug testing. She stated that she had been sober since April 16, 2004.
Arturo had lived with her for the first six months of his life. He was two years and three months old at the time of the section 366.26 hearing. Thus, for the majority of his life, Arturo had not lived with mother. None of mother’s children resided with her.
Mother indicated that she had visited Arturo twice a week until her visits were cut to weekly visits. Mother visited Arturo at McDonald’s or a park. She explained that she took care of Arturo during the visits by playing with him and his little cars, teaching him to ride a little bike, teaching him colors and his numbers, and playing ball with him. She also would converse with him, read books to him, and watch cartoons with him. During the visits, she would feed Arturo and change his diapers. While mother had not been to a doctor’s appointment with Arturo since his detention, she did keep in contact with his foster mother, and she knew that Arturo was up-to-date with his shots, he weighed approximately 25 pounds, and he was in perfect health.
Arturo called mother “mommy.” He acted excited when he saw mother, would run to her, hug her, kiss her, and say that he loved her.
Mother also visited Arturo during sibling visits once a month at Arturo’s maternal grandmother’s home.
Regarding her relationship with father, mother stated that she and father were living together at Arturo’s maternal grandmother’s home. She was employed through an agency, and would put Arturo in day care if he was returned to her care. Father was in outpatient drug rehabilitation and was attending 12-step meetings with her. She stated that she would be willing to live separately from father if the juvenile court required that of her.
Argument and Trial Court’s Denial of Mother’s Section 388 Petition
Following mother’s testimony, Arturo’s attorney joined with mother in requesting that Arturo be returned to her care. Because Arturo recognized mother and father as his parents, his attorney believed that it was in Arturo’s best interests to be returned to mother. She had been sober for over three years and played a significant role in his life.
Mother’s attorney pointed out that mother’s unmonitored visits with her three older children indicated that there was no risk to them in her care and demonstrated that she had been using the tools that she had acquired to remain sober in the long-term.
Father’s attorney represented that father would be willing to leave the family home so that Arturo could be returned to mother.
After hearing oral argument, the juvenile court denied mother’s section 388 petition. It had no idea how long mother’s drug program had lasted, and mother had not participated in drug testing for almost a year. The juvenile court opined that mother had not been sober for three years because there had been reports in June 2006 that she had smelled of alcohol. In the juvenile court’s view, mother was “only on the second step of a 12-step program,” and there were no sign-up sheets or attendance records; thus, the juvenile court concluded that mother had “just barely begun the 12-step process.”
The juvenile court was also troubled by mother’s failure to participate in individual counseling other than with a drug counselor in a drug program.
The juvenile court stated that it had “no evidence in the last year and a half that she hasn’t done drugs or alcohol, and that goes for father as well.”
Based upon all of this, the juvenile court found that there had not been a change of circumstances.
The juvenile court then stated that even assuming that mother could establish a change of circumstances, mother did not meet her burden on the best interests prong of the analysis. The juvenile court believed that mother had not shown that Arturo’s “life would be any different or better” with mother and “there’s just absolutely no showing whatsoever of best interest.” Specifically, mother had failed to present evidence that it was in Arturo’s best interest to be returned to mother.
Selection and Implementation
The juvenile court then turned to the selection and implementation portion of the hearing. The juvenile court stated that it had no evidence that there would be any harm to Arturo in not being with his parents or that there was any benefit to him other “than having a friend who plays with him and colors with him.” The juvenile court found by clear and convincing evidence that Arturo was adoptable, that section 366.26, subdivision (c)(1)(A) did not apply, and terminated parental rights.
Mother’s Appeal
Mother’s timely appeal from the juvenile court’s (1) order denying her section 388 petition, and (2) order terminating parental rights followed.
DISCUSSION
I. Mother’s Section 388 Petition
A. Standard of review
We review a juvenile court’s order denying a section 388 petition for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
B. The juvenile court did not abuse its discretion when it denied mother’s section 388 petition
Section 388 provides, in relevant part: “Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made.” (See also In re Brandon C. (1993) 19 Cal.App.4th 1168, 1172.) “Section 388 provides the ‘escape mechanism’ . . . built into the process to allow the court to consider new information. [¶] . . . Even after the focus has shifted from reunification, the scheme provides a means for the court to address a legitimate change of circumstances. . . . [¶] . . . [T]he Legislature has provided the procedure pursuant to section 388 to accommodate the possibility that circumstances may change after the reunification period that may justify a change in a prior reunification order.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
That being said, “[i]t is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529; § 388, subd. (b).) Some factors which “provide a reasoned and principled basis on which to evaluate a section 388 motion” include “(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” (In re Kimberly F., supra, at p. 532.)
“[T]he burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interests of the child.” (In re Stephanie M., supra, 7 Cal.4th at p. 317.)
“It is rare that the denial of a section 388 motion merits reversal as an abuse of discretion.” (In re Kimberly F., supra, 56 Cal.App.4th at p. 522.)
Here, the juvenile court did not abuse its discretion when it denied mother’s section 388 petition. Undeniably, there was evidence that mother was working towards sobriety. She began drug rehabilitation in 2005 at Atlantic, a one-year program. By January 11, 2006, mother was already in the “aftercare” program at Atlantic, which was level 2 of the treatment program.
Moreover, mother had been participating in drug counseling. On January 10, 2006, DCFS reported that mother had already completed all but 19 of 113 clinical group sessions at the program. By June 2006, mother had attended 138 12-step meetings and 95 clinical sessions. She even received her certification of completion in June 2006. And, she had been attending meetings and she was working with her sponsor to stay sober.
That being said, the juvenile court was also presented with evidence doubting mother’s sobriety. Despite her participation in drug counseling, DCFS documented at least two instances when mother smelled of alcohol. And, while mother had been participating in drug testing, her testing was not consistent. Throughout these proceedings, there were several records of “no-shows” for scheduled drug tests. And, at the section 388 hearing, mother did not produce tangible evidence of current drug testing; her last drug test had been six to seven months prior to the hearing. Finally, she failed to offer evidence, such as sign-in sheets, of her attendance at her current 12-step meetings.
In light of all of this conflicting evidence, the juvenile court properly exercised its discretion and determined that circumstances had not changed such that Arturo should have been returned to mother’s care.
The fact that mother had been having unmonitored visits with her three older children does not change our analysis. Unlike Arturo, who was only two years old at the time of the hearing on mother’s section 388 petition, Richard, Bianca, and Cynthia were all teenagers at that time. Given the vast difference in age between Arturo and his siblings, we cannot conclude that mother’s unmonitored visitation with her older children compels the conclusion that she would pose no risk to a two-year-old. Moreover, Arturo’s siblings were not being returned to mother’s care; she simply was having unmonitored visits with them. Given that mother had not progressed past weekly monitored visitation with Arturo, we are not convinced that her relationship with his siblings supports her overreaching request that Arturo be returned to her care.
Because we conclude that mother failed to establish changed circumstances, the juvenile court’s order denying mother’s section 388 petition must be affirmed. Our analysis could stop here.
However, for the sake of completeness, we note the following: Taking into consideration the factors set forth in In re Kimberly F., supra, 56 Cal.App.4th at page 532, mother also failed to demonstrate that returning Arturo to her care was in his best interests. The problem that led to Arturo’s detention was mother’s history of substance abuse, a serious problem. It is uncertain whether that problem has been resolved and whether it will return. As set forth above, the evidence is inconsistent and incomplete as to whether mother has completely addressed her drug and alcohol abuse. And, while mother testified that she is committed to remaining sober, she has been sober in the past and returned to drug abuse. Under these circumstances, we cannot conclude that the juvenile court abused its discretion in denying mother’s section 388 petition.
II. Section 366.26, subdivision (c)(1)(A)
A. Standard of review
Under section 366.26, subdivision (c)(1), once a juvenile court determines that a child is likely to be adopted, “the court 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 due to one or more” of six enumerated exceptions. (Former § 366.26, subds. (c)(1)(A)-(F).)
A party claiming an exception to adoption under section 366.26, subdivisions (c)(1)(A) through (c)(1)(F) has the burden of proof of establishing by a preponderance of the evidence that the exception applies. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) When reviewing a juvenile court’s finding that no exceptional circumstance exists to the termination of parental rights, we apply a substantial evidence standard of review. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
“In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial court. [Citation.]” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.” (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.) The judgment will be upheld if supported by substantial evidence, “even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence.” (In re Dakota H., supra, 132 Cal.App.4th at p. 228.)
B. Substantial evidence supports the juvenile court’s finding that the contact and benefit exception to termination of parental rights did not apply
A parent contesting termination of parental rights under section 366.26, subdivision (c)(1)(A) bears the burden of proving either “(1) continuation of the parent-child relationship will promote 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 [citation] or (2) termination of the parental relationship would be detrimental to the child.” (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) “To meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits.” (In re Dakota H., supra, 132 Cal.App.4th at p. 229; see also In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108–1109.) “To overcome the preference for adoption and avoid termination of the natural parent’s rights, the 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.” (In re Angel B., supra, at p. 466.) “A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile 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 child’s need for a parent.” (Ibid.; see also In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
The factors courts should take into account in determining whether loss of the parental relationship would cause the child to suffer detriment include the age of the child, the portion of the child’s life spent in the parent’s care and custody, the nature of the interaction between the parent and child when they are together, and the child’s particular needs. (In re Angel B., supra, 97 Cal.App.4th at p. 467; see also In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207 [order terminating parental rights reversed where child was nine years old, had lived with his mother for the first six-and-one-half years of his life, expressed his wish to live with her again, and had no one else in his life to occupy the role of mother]; In re Amber M. (2002) 103 Cal.App.4th 681, 689–690 [order terminating parental rights reversed where children had been in mother’s care for significant portion of their lives and psychologist testified they were primarily bonded to her and severance of the relationship would be detrimental to them].)
Here, mother failed to establish that she maintained regular visitation and contact with Arturo. While she had been having visits with Arturo twice a week, mother failed to visit Arturo between June 26, 2006, and July 6, 2006. And, from June 2006 forward, after reunification services were terminated, mother only visited Arturo once a week.
At the hearing, mother claimed that the social worker inexplicably reduced her visits from twice a week to once a week. However, the DCFS reports suggest that once reunification services were terminated, mother decided not to visit Arturo as frequently as she had in the past. Not only was she visiting less frequently, but she had missed some of her weekly visits. And, importantly, mother’s contact with Arturo never progressed beyond monitored visitation.
Moreover, substantial evidence supports the juvenile court’s finding that mother had not occupied a parental role to Arturo. While he did call her “mommy” and he was excited to see her when they had their visits, she did not provide for his needs. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) At best, she would feed and change his diapers during visits. However, most of the evidence indicates that all mother did was play with him during their visits.
Furthermore, mother did not establish that the benefit Arturo derived from his relationship with her outweighed the benefit he would derive from a permanent home with his new adoptive parents. (In re Jamie R. (2001) 90 Cal.App.4th 766, 773.) Arturo only lived with mother for a short time; he has spent most of his life living with his foster parents, who have been proactive in providing Arturo with adequate care and following up with his needs.
Finally, substantial evidence supports the juvenile court’s finding that mother did not demonstrate that Arturo would be greatly harmed if her parental rights were terminated. As set forth above, it is uncertain whether mother’s drug abuse issues have been resolved. While mother did visit with Arturo, since his detention, she has not occupied a parental role to him. In contrast, Arturo has bonded with his prospective adoptive parents, who have been providing for him and who are committed to taking care of his needs. Under these circumstances, we conclude that the juvenile court did not err in finding that the contact and benefit exception to terminating mother’s parental rights did not apply. (Former § 366.26, subd. (c)(1)(A).)
DISPOSITION
The juvenile court orders are affirmed.
We concur: BOREN, P. J., CHAVEZ, J.