IN RE: SEBASTIAN A. et al. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Lucy E. and Luis A., the mother and father of minors Sebastian, Alejandro and Victor, appeal from the order terminating their parental rights.   Both parents contend the juvenile court abused its discretion when it denied their respective Welfare and Institutions Code section 1 388 petitions without a hearing and committed reversible error in terminating their parental rights when it found the section 366.26, subdivision (c)(1)(B)( i) exception did not apply.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Background to First Appeal

A. Section 300 Petition for Sebastian and Alejandro

The family came to the attention of the Department of Children and Family Services (Department) in June 2005, when mother gave birth to Alejandro (at times, referred to as Ignacio), and both tested positive for methamphetamine.   Sebastian was detained with his paternal aunt Carmen.   Mother and father, who were not married, were no longer living together at the time of Alejandro's birth.

The court sustained the section 300 petition filed on behalf of Sebastian and Alejandro under subdivisions (a) and (b).  The sustained counts stated the parents had a history of physical altercations, Alejandro and mother tested positive for methamphetamine at the time of Alejandro's birth, and mother and father both had a history of substance abuse.

At the disposition hearing, the court declared Sebastian and Alejandro dependent children and ordered them placed in home of parent (HOP), mother.   The court ordered the Department to provide mother with family maintenance services and father with family reunification services and directed them to participate in parenting education, drug counseling with random drug testing and domestic violence counseling.

In February 2006, the parents relapsed and both tested positive for methamphetamine.   The parents had a few heated arguments, and mother suffered a spike in her emotional problems.   At one point, mother threatened to jump off a bridge and kill herself.

On May 2, the court sustained the Department's section 342 petition filed under section 300, subdivision (b).  The sustained counts stated mother demonstrated mental and emotional problems which limited her ability to appropriately care for the children, she had a history of substance abuse and was a frequent user of alcohol and illicit dugs, and she allowed the children to be in the care of father in violation of court orders and despite his frequent use of illicit drugs.   The court terminated the HOP order and ordered Sebastian and Alejandro removed from mother's custody and detained the children with the maternal grandparents.   The court ordered the Department to provide family reunification services to mother and directed her to participate in parenting education, drug counseling, random drug testing, and domestic violence counseling.   The court granted the parents monitored visits and gave the Department discretion to liberalize the visits.

In August, the parents were living together and having weekly monitored visits with the children;  the visits were positive.   Neither mother nor father had completed their services.   In October, father was terminated from his drug program because of multiple absences;  he had several positive tests for methamphetamine.   The court found the parents were not in compliance with the case plan, terminated family reunification services and set a section 366.26 selection and implementation hearing (.26 hearing) for Sebastian and Alejandro.

B. Section 300 Petition for Victor

In April 2007, mother gave birth to Victor.   Although neither mother nor Victor tested positive for drugs, mother admitted she had failed to get prenatal care during her pregnancy and had used methamphetamine throughout her pregnancy, sometimes with father.   At the time of Victor's birth, the parents were residing next door to the maternal grandparents who were caring for Sebastian and Alejandro.

At the detention hearing, the court put Victor in a confidential placement.   Able, the maternal uncle, told the social worker (CSW) that he and Ana, the maternal aunt, helped care for Sebastian and Alejandro and stated the parents had unlimited access to the children.   Able alleged the parents were continuing to abuse drugs, father recently had been shot in the leg in front of the home during a drive-by shooting, father had an affiliation with a local gang, and Sebastian had been present when father was shot.

In November, the court sustained the section 300, subdivision (b) petition filed by the Department on behalf of Victor.   The sustained counts stated mother had a 10-year history of illicit drug use, she was currently using illicit drugs, her older children were receiving permanent placement services due to her drug use, she had mental and emotional problems rendering her unable to care for Victor, mother and father had a history of domestic violence, and father had a history of and was a current user of illicit drugs.   As to disposition, the court declared Victor a dependent child and ordered him removed from his parents' custody and detained him with the maternal grandparents.   The court denied family reunification services and set a .26 hearing for Victor.   The court ordered the parents to participate in parenting education, drug counseling, random drug testing, domestic violence counseling, and monitored visits.

C. Review Hearings and Petitions

At the .26 hearing for Sebastian and Alejandro in November 2007, the court selected guardianship as the permanent plan and appointed the maternal grandparents as the legal guardians.

In December 2007 and January 2008, family members alleged that the grandparents were allowing mother and father to have unmonitored visits with the three children while the parents were engaging in endangering conduct and that the grandparents were in ill health and unable to continue caring for the children.   Able reported the parents had been disruptive in the neighborhood, father had been under the influence on several occasions when father came onto the maternal grandparents' property, and mother would enter the home whenever she pleased and harassed the grandparents.   During one visit, the CSW encountered mother outdoors alone with Alejandro and father dancing in the middle of the street.   The children were allowed to go across the street to spend time with the parents, and the grandfather would watch from inside the house.   The children had seen mother arguing with her parents and had seen father drinking.

On March 4, 2008, the court sustained two section 387 petitions filed by the Department on the ground the court's previous disposition order had not been effective in the protection of the children.   The court ordered the three children placed with a maternal aunt and uncle (Ana and Able) until further court order and granted the parents monitored visits in the Department office.

The Department reported there was increasing acrimony between the maternal and paternal sides of the family and all continued to feud from May to August.   The Department filed a section 388 petition in April recommending the maternal grandparents' guardianship over Sebastian and Alejandro be terminated and the children continue to be placed with the maternal aunt and uncle.

At the May disposition hearing, the court ordered the three children remain dependent children and ordered the Department to provide family reunification services to the legal guardian maternal grandparents.   The court further ordered weekly monitored visits for the parents and unmonitored visits for the guardians.   The court also granted a hearing on the section 388 petition filed by Department requesting termination of the guardianship order.

On August 1, father filed a section 388 petition requesting further reunification services, return of the three children to his care and/or unmonitored visits.   The Department recommended against unmonitored visits due to Sebastian's upset and angry periods regarding the parents' monitored visits and the lack of bonding or parental instincts between the parents and the children.   Father withdrew his petition in December.

In September, the parents moved in with the maternal grandparents because the grandparents were frail and needed assistance.   The maternal grandparents relied entirely on the parents to take care of them physically.   The family members continued to feud.   Sebastian's therapist recommended that visits continue to be monitored so he would not be placed in the awkward position of being in the middle of inappropriate comments by his feuding family members.

On September 24, mother filed a section 388 petition seeking further family reunification services, return of the three children to her care and/or unmonitored visits.   The court summarily denied the petition, noting it would not be in the children's best interest to change the prior order.

Mother filed a timely notice of appeal from the summary denial of her section 388 petition.   This court affirmed the summary denial.

II. Post-Appeal Developments

A. Review Hearings

At the October 2008 review hearing, the court terminated the guardianship, terminated reunification services for the guardians, ordered the children remain placed with the maternal aunt and uncle, and ordered the Department to provide permanent placement services for all three children.

For the further section .26 hearing for Victor, the Department reported there was a history of dramatic and escalating tension between the care givers (the maternal aunt and uncle) and the parents and grandparents, which resulted in a physical altercation between mother and maternal aunt.   Following that incident, the care givers decided to no longer care for the children as the care givers did not want to live with constant hostility.   The three children were placed in foster care for a short period and then returned to the maternal aunt and uncle.   The parents and grandparents blamed the care givers for the detention of the children.   The parents had engaged in a “dramatic tug-of-war” over the children which had caused the children grief and stress.

In December, the Department reported that after nearly three years of failing to comply with the court-ordered programs, the parents finally began to enter and participate in programs and to test clean from drugs and alcohol.   The care givers had “passionately express[ed]” their preference for adopting the three children.   Sebastian stated he wanted to be adopted by the care givers.   The care givers stated that, for a temporary period of time, they were willing to accept legal guardianship of the children with a clear goal of moving towards termination of parental rights in the coming year.   The parents had monitored visits with the children.   The Department reported that there had been an ongoing problem with the parents and/or grandparents making “destructive insinuations” and statements to the children, especially to Sebastian;  the statements had tapered off in the last two months because the visits were tightly monitored.   Sebastian stated he did not want unmonitored visits with his parents and grandparents.   The Department stated the parents tended to treat the children as “ ‘property’ ” with whom they were “ ‘owed’ ” access/custody, instead of being focused on love for the children and the best interest of the children.

The court appointed the maternal aunt and uncle as guardians for all three children.

The maternal and paternal sides of the family fought over visitation, each side accusing the other of attempting to sabotage their relationship with the children.   The consequence was an extended family tug-of-war of harsh words and accusations, with Sebastian in the middle.

In December 2008, the Department reported the three children participated in two-hour monitored visits with their parents at the Department office.   The parents usually played games with the children and brought food for them to eat.   The parents were consistent with their visits.   When the paternal relatives visited, the children appeared to have more of a maternal bond with their paternal aunt Carmen.   Interaction between the parents and the children was appropriate.   The majority of the parents' visits was spent by the family eating food;  there did not appear to be any bonding or parental instincts involved.   For the most part the parents provided “fast food” so they were instructed to bring healthier food to future visits.   The children looked forward to eating and playing.   The parents and family members tried to influence the children to request re-placement away from their care givers.

In January 2009, the Department reported the paternal relatives were interfering with the parents' ability to bond with the children during visits.   Paternal aunt Lorena assisted Sebastian with his homework, and Alejandro referred to her as “ ‘Momma.’ ”   The children loved their paternal relatives and looked forward to visits with them, and the relatives had become more appropriate with the children.

In March, the parents and Sebastian began participating in conjoint counseling.

In April, the Department reported Sebastian was receiving individual counseling focusing on his feelings of anger and sadness and to decrease his stress over visitation and feelings of conflict between his parents and extended family members.   Alejandro and Victor were referred for play therapy.

The three children had regular, weekly two-hour monitored visits with their parents.   The Department reiterated the parents had made inappropriate comments to the children during visits, such as suggesting that they were being abused by the current care givers and checking for bruises by lifting their shirts, making derogatory remarks about the care givers, and encouraging the children to say they were unhappy in their placement.   The parents frequently told the CSW that the children were being mistreated and were unhappy, although the CSW found no substantiation for those claims.   That conduct caused tension for the care givers such that they asked to have the children removed from their custody.   The Department believed that much of the parents' compliance and participation was superficial and that they did not function in a truly parental role with the children.   The parents had engaged in a custody-seeking battle since the children's detention, which had left the children, particularly Sebastian, traumatized and upset.

The maternal aunt and uncle were “highly motivated” and committed to adopting the children as a sibling set.   Since July 2008, the parents had been in consistent compliance with case plan activities such as visitation and parenting classes.

B. Section 388 Petitions and Review Hearings

On April 22, 2009, the Department filed a section 388 petition to terminate the guardianship order as the guardians had requested the children be re-placed due to the guardians' inability to continue to care for the children for personal reasons.   The court granted the petition and placed the children with paternal aunt Carmen.   After the children were placed with Carmen, there was much less acrimony, and the parents were once again granted unmonitored visitation.

On June 10, father filed a section 388 petition requesting the court order further family reunification services for the parents and/or place the children with the parents, or grant unmonitored, overnight visits.   Father alleged he had completed all of his court requirements and had over a year of negative drug tests.   Father alleged no one could love the children like their real parents and even though the parents had made mistakes, they were now ready to again parent the children.

In June 2009, mother also filed a section 388 petition.   Mother requested the court issue a HOP (mother) order for all the children, or, in the alternative, order family reunification services and unmonitored, overnight/weekend visits.   Mother stated she had completed a parenting program, a six-month alcohol and drug program and a domestic violence program, had negative drug tests, and had consistently visited her children.   Mother stated she could now meet the children's need for stability and permanency because she had addressed the conditions that had led to the children's detention and was fully committed to providing for her children.

In June, the Department reported the transition to the home of paternal aunt Carmen had gone smoothly.   Mother had completed a domestic violence program in May and an alcohol/drug program in February.   The current care giver wished to adopt the children.   Sebastian stated he liked living with his paternal aunt, “ ‘but I also want to go home.’ ”   Monitored two-hour visits between the parents and the children continued at the Department office each week.   Father made extra efforts to play with and engage the children, and the parents had also improved in regards to the food they brought to the visits.   Despite the parents' accomplishments, the Department was still concerned about the parents' inability to care for the children and provide them with a stable future.   Mother had been periodically hospitalized (for end-stage renal failure;  she was awaiting a kidney transplant), and the visits were rescheduled around those times.   The parents were very consistent in visiting the children, and the visits proceeded without incident.   The Department and the family wanted to ensure that the parents and children had an opportunity to bond, especially given mother's illness, so the Department requested unlimited, monitored visits outside the Department office, with the conditions the parents not talk about the case or argue in the children's presence and bring nutritious snacks.   The court ordered the visits take place outside the Department office as often as could be arranged and granted the Department discretion to liberalize the visits.

In July, the Department issued a report addressing the recent section 388 petitions.   During the latest period of supervision, the parents continued to be compliant with the visitation plan.   During visits, Alejandro and Victor primarily interacted with mother, and Sebastian primarily interacted with father.   Alejandro was mostly left to play by himself.   During some of the visits, the CSW had to pull father aside and make him aware that he needed to play with Alejandro and Victor, initiate contact with them and comfort them if they cried.

Since the order permitting visits outside the Department office, Carmen, who monitored the visits, reported the parents were trying to have good visits.   Carmen found herself caring for the children during the visits because they gravitated to her.   At one visit, father told Sebastian that he was going to find him a new mom;  Sebastian became quiet and said, “ ‘No, I like my Mom. I don't want another mother.’ ”   After one visit, Sebastian asked Carmen if she had seen him crying.   When Carmen asked why he was crying, Sebastian said because he wanted to live with his grandfather.   Carmen told Sebastian he had been smiling and appeared to be happy and asked why he said he had been crying.   Sebastian replied, “ ‘My father told me to cry and say that I want to live with my grandfather.’ ”   Carmen was concerned father was not thinking of Sebastian's well being.   Another paternal aunt reported that, when monitoring visits, she had sometimes to discipline the children and tell the parents to watch their language, despite having asked the parents to provide the structure and discipline for the visits.   The aunt was concerned the parents had trouble keeping the children under control and would become frustrated.   The parents still brought bags of cookies and candies to the visits.

The Department reported it was still concerned about the parents' inability to care for the children appropriately as they lacked the good judgment, boundaries and structure to provide the children with a stable future.   The parents still lived in the maternal grandmother's home;  both were unemployed.   Father was the primary caregiver for the maternal grandparents, who were elderly and had many medical conditions.   The Department reported that in addition to mother's dialysis schedule four times a week, she needed to be in a dark room by herself without any noise to relieve her pain.   The Department noted the three children, all under 10 years of age, required an “extreme amount” of supervision, including to be appropriately fed, bathed and clothed, taken to school, helped with their homework and given emotional support and discipline.   The Department and the paternal relatives were concerned about the parents' lack of supervision during the monitored visits.   The Department was apprehensive about what would happen once there was no longer a monitor to redirect the parents' behavior and attention to the children and feared that if the children were returned home, Sebastian would become “parentified” and be responsible for the care of his siblings.

In August, the Department submitted a report on the parents' visits.   The conjoint therapist reported Sebastian demonstrated a positive bond with his parents, and they interacted appropriately.   The parents were “respectful, responsible and cooperative” with the treatment plan.   The paternal aunt reported the visits proceeded without incident.   The visits were longer, and the parents were more involved in providing structure and discipline for the children.   Carmen opined the parents were not expressing themselves fully during the conjoint therapy sessions because they feared they might explode in angry outbursts and not be able to control themselves.   Carmen was concerned because of her knowledge of father's violent propensities.   Carmen believed the parents were presenting well to the therapist and the Department because they were being watched.   Carmen was worried that if the parents were granted unmonitored visits, they would quickly become frustrated with the children's behavior and not care for them appropriately.

After a hearing, the court denied the section 388 petitions, finding the best interest of the children would not be promoted by the proposed change.   The court granted the Department discretion to allow the parents to stop drug testing and to liberalize the parents' visits, which the court ordered were to be unmonitored once a week for up to four hours per visit.

The maternal grandfather passed away in November.   The Department reported the parents were still not living a lifestyle conducive to being able to provide the children with a safe, stable and loving home;  the parents were unemployed and could only afford to live with maternal grandmother.   The parents disregarded a chance to spend Christmas with the children.

In December 2009, the Department reported the three children were residing with paternal aunts Carmen and Nancy, who were their prospective adoptive parents and committed to adopting all three children;  their home study had been approved.   The parents frequently participated in conjoint counseling with Sebastian.   Since September, the parents had weekly four-hour unmonitored visits with the children;  no problems were reported.   The Department stated that both parents were under drug and alcohol treatment programs, but their individual problems were not completely resolved and that their living situation was not stable as they continued to live with the maternal grandmother.   At the hearing, the court ordered a permanent plan of placement with the paternal aunt.

Father and mother were married in February 2010.   The Department reported the parents were unemployed and could only afford to live with the maternal grandmother.   Carmen reported the parents missed two visits in February and ignored Sebastian's birthday-they did not call him or come to see him or send him a card or a present.

In March, the court granted the Department's walk-on request that the parents' unmonitored visits be restricted to monitored by the Department due to allegations of inappropriate conversations between the parents and the children such as the parents asking Sebastian why he wanted to be adopted and stating they would go to Las Vegas when he returned to them.   Even after the conjoint therapist told the parents it was not appropriate to discuss adoption with Sebastian, they brought up the subject again the following week during an unmonitored visit.

In June, the Department reported the parents continued to participate in weekly conjoint counseling with Sebastian and in weekly monitored visits with the three children at the Department office.   The parents fed the children, and the children played happily with them;  the children liked to see their parents.   The children indicated they liked living with their paternal aunt.   The parents and the paternal aunt stated the parents needed more time with the children.   The parents stated they wanted to have the children back.   The paternal aunt wanted to adopt the three children.

Father, who was employed full-time as a maintenance worker for an apartment building owner, had been consistently drug testing since May 2008, with negative results.   Mother received social security disability.   Both parents continued to participate in drug and alcohol treatment programs;  they continued to live with the maternal grandmother.

C. June 2010 Section 388 Petitions

Mother's petition requested the court issue a HOP (mother) order, or, in the alternative, order family reunification services and unmonitored overnight/weekend visits.   As changed circumstances or new evidence, mother alleged she had completed a parenting program in October 2008, a six-month alcohol and drug program in February 2009, and a domestic violence support group in May 2009.²  Mother stated she consistently visited the children and had addressed the issues that led to the detention of the children and was currently able to provide stability and permanency and was fully committed to providing for her children.   Mother's doctor reported she was in the end stage of renal failure and was on medication for pain and anxiety.

The court summarily denied the petition on the grounds it did not state new evidence or a change of circumstances and the proposed change did not promote the children's best interest.

Father's petition requested the same change of orders as mother's petition.   Father alleged he had weekly drug tests from May 2008 to June 2010, all of which were negative.   Father stated he had completed all of his court-ordered programs.   The court summarily denied father's petition on the same grounds as it denied mother's petition.

D. Termination of Parental Rights

In February 2010, the Department reported the children were doing well, and Sebastian made it clear that he and his brothers were happy in their aunt's home and wanted to be adopted by her.   The parents had a four-hour unmonitored visit each week.   The parents' visits had become somewhat less consistent since October 2009.   On three occasions, the aunt called the parents 24 hours ahead to ask if the visit time could be changed to the next day;  the parents agreed, but did not come to the visits.   The aunt thought that perhaps the parents were preoccupied with medical appointments.   Since the aunt had become the care giver, the parents had not been involved with the children's school, doctors or social workers until, at the request of the conjoint counselor, they spent time helping Sebastian with his homework.

At the .26 hearing (combined with the hearing on the section 388 petitions), the court found by clear and convincing evidence that it was likely Sebastian, Alejandro and Victor would be adopted and that no exceptions to the termination of parental rights applied.   The court terminated mother's and father's parental rights and transferred the care, custody and control of the children to the Department for the purposes of adoption planning and placement.

Mother and father filed timely notices of appeal from the order terminating their parental rights.

DISCUSSION

I. The court did not abuse its discretion in denying the section 388 petitions without

a hearing.

A section 388 petition requires a showing (1) that a change of circumstances warrants a change in a prior order of the juvenile court and (2) that the requested change is in the best interests of the child.  (Cal. Rules of Court, rule 5.570(e);  In re Daijah T. (2000) 83 Cal.App.4th 666, 672.)   Mother and father contend the court abused its discretion when it denied their petitions without a hearing.

“If the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.  ‘The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing.’  ‘A “prima facie” showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited.’ ”  (Citations omitted.)  (In re Daijah T., supra, 83 Cal.App.4th at p. 673.)

However, a party filing a section 388 petition is not automatically entitled to a full hearing on the motion.   If the petition fails to state a change of circumstance that might require a change order, the court may deny the application ex parte.  (Rule 5.570(d).)  “The petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.”  (In re Jasmon O. (1994) 8 Cal.4th 398, 415;  see also In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451 [The denial of a petition without a hearing is reviewed for an abuse of discretion keeping in mind “ ‘the change of circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged prior order.’ ”].)

Whether a parent made a sufficient showing entitling her to a hearing “depends on the facts alleged in her petition, as well as the facts established as without dispute by the court's own file.”  (In re Angel B. (2002) 97 Cal.App.4th 454, 461.)   In addition, “[w]hen custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role.”  (Id. at p. 464.)   The burden of proving changed circumstances is particularly difficult after reunification services have been terminated (or were never ordered) as they were in this case.   (Ibid.)

Father contends he met his prima facie burden to trigger a hearing because he had completed all his services, achieved sobriety and “ ‘matured and learned’ from his past and put his bad choices behind him” in that he had taken a position of responsibility in his household caring for his elderly mother-in-law and had married mother, who was in the end stages of renal disease.   Father also asserts the count erred in finding the best interests of the children would not be promoted by the proposed change because he was the one constant father figure in their lives;  an argument father did not present to the juvenile court at the time of either the 2009 or 2010 petitions.   Mother argues she completed her programs, the children enjoyed the visits and were happy to see and be with her, she parented them to the extent possible given the limitation of monitored visits and Sebastian had a bond with his parents.

In June 2009, mother and father each filed a section 388 petition requesting return of the children, or, in the alternative, family reunification services and unmonitored, overnight/weekend visits.   After a hearing, the court denied the petitions.   Although the court did not order return of the children or reinstatement of reunification services, it did grant the Department discretion to liberalize visitation to unmonitored visits once a week for up to four hours.   The parents started unmonitored visits.   However, due to inappropriate comments by the parents to the children, in direct contradiction of express and repeated court orders, the court reinstated monitored visits.   Thus, the limitation on the visits was the result of the parents' behavior, indicating they had not put bad choices behind them.

Father notes a court may take the entire factual and procedural history of the case into consideration in ruling on a section 388 petition.  (See In re Justice P. (2004) 123 Cal.App.4th 181, 189.)   The June 2010 section 388 petitions which are the subject of this appeal, were replicas of the petitions filed in June 2009.   The court denied the 2009 petitions after a hearing.   The 2010 petitions requested the almost exact same relief and attached the almost exact same evidence and offered almost the exact same justifications for the requested changes as the 2009 petitions.   Neither parent appealed from the denial of the June 2009 petitions.   Neither below nor on appeal, did either parent offer any argument that any change since the June 2009 denials justified a change of the prior orders;  they simply repeated the same arguments rejected by the court when it denied the 2009 petitions.

The record shows that during the visits, the parents had to be redirected to act appropriately, to engage with the children, to feed the children nutritious food and to watch their language.   Furthermore, even though the parents completed their case plan, they did not do so until 2009, more than three years after the court ordered compliance in June 2005.

The children were bonded with their paternal aunts, with whom they had lived since April 2009.   The children were thriving in the aunts' home.   Carmen enrolled Alejandro in a Head Start program and enrolled the children in summer activities and religious classes.   Sebastian informed his attorney that he and his brothers wanted to be adopted by his paternal aunts.

Even though it is evident that the parents had maintained another year of sobriety since the 2009 petitions, the record shows that not only did the parents not progress to overnight or weekend visits, but also that they backslid to monitored visits due to their disobedience of court orders.   The ongoing circumstances were not significant changes justifying a new hearing.

Thus, under the circumstances, the court did not abuse its discretion when it denied the petitions without a hearing.

II. Substantial evidence supports the finding the beneficial parent-child exception

did not apply.

Both mother and father contend the court erred in finding the section 366.26, subdivision (c)(1)(B)(i) exception did not apply.   The parents had the burden of showing the exception applied.  (In re Amber M. (2002) 103 Cal.App.4th 681, 689.)   We review the court's finding for substantial evidence.  (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)  “On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.”  (Id. at p. 576.)

A parent must show “the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.   In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer.   If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated.  [¶] Interaction between natural parent and child will always confer some incidental benefit to the child.   The significant attachment from child to parent results from the adult's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation.   The relationship arises from day-to-day interaction, companionship and shared experiences.   The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.”  (Citations omitted.)  (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

Although day-to-day contact is not mandated (In re Casey D. (1999) 70 Cal.App.4th 38, 51), more than frequent and loving contact is required.  (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.)

“The factors to be considered when looking for whether a relationship is important and beneficial are:  (1) the age of the child, (2) the portion of the child's life spent in the parent's custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child's particular needs.”  (Fn.omitted.)  (In re Angel B., supra, 97 Cal.App.4th at p. 467.)

The children were young.   Alejandro and Victor had never lived with their parents, and Sebastian, who had lived with mother for the first five years of his life, had not lived with her for five years.

Both parents essentially argue they had maintained regular visits with their children and had a parental and beneficial relationship with the children.   Even though the nature of the visits (monitored versus unmonitored) changed during the dependency, and parents missed some visits due to mother's illness and seemed to be becoming somewhat indifferent to visits after the children were placed with Carmen (father cancelled a visit to go fishing, the parents passed on a Christmas visit, and missed Sebastian's birthday), for the most part, they did visit regularly.

The record also indicates the parents had somewhat of a parental relationship with the children.   They brought food and fed the children at the visits, played with the children and even helped Sebastian with his homework.   The family was affectionate with one another;  greeting each other with hugs and kisses.

However, on the other hand, the parents failed to act appropriately during the visits;  even though the parents had been asked to bring nutritious food, they still continued to bring cookies and candies.   The parents failed to engage the children and had to be directed to supervise and discipline the children and to pay attention to all of the children.   Moreover, the parents used foul language and continued to disobey court orders not to make inappropriate comments to the children and to cause stress to Sebastian by encouraging him to lie.   In addition, the parents were not involved with the children's school, doctors or social workers.

Thus, the case turned on whether the benefit of maintaining that relationship outweighed terminating parental rights.   In finding the section 366.26, subdivision (c)(1)(B)(i) exception did not apply, the court stated:

The court is charged with weighing the benefit of permanence for the children versus the detriment of terminating the relationship.   I do not feel that, frankly, at any time and not through the pendency of the .26 has the exception been met, evidentiary or otherwise.   Obviously, it takes more than knowing who your parents are and visiting regularly.   I have no doubt that these children will always know who their birth parents are, but I absolutely see no legal impediment and no exception presented to me.

There was no evidence the children would be harmed, much less greatly harmed, if their bond with their parents was severed.  (Compare In re S.B. (2008) 164 Cal.App.4th 289, 295-296, 298-301 [where the father had fully complied with the case plan and there was expert testimony of potential harm to the child should her relationship with her father be terminated];  In re Amber M., supra, 103 Cal.App.4th at pp. 689-691 [testimony from the psychologist who conducted a bonding study, therapists and the social worker supported the finding that maintaining the parent-child relationship outweighed adoption];  In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206-1209 [the court concluded there was sufficient evidence to support a beneficial relationship based on expert testimony regarding the positive effect of the interaction between a boy and his mother as well as other facts].)

Mother and father suggest their contact with the children should be considered in the context of the visits they were permitted to have.   However, despite the very extended time for the dependency (five years), they had not progressed to overnight or extended visits even though the court had repeatedly given Department discretion to liberalize the visits.  (See In re Casey D., supra, 70 Cal.App.4th at p. 51.)   Moreover, even though the parents had progressed to unmonitored visits, the court had to reinstate monitored visits due to the parents' inappropriate comments to the children.  “[I]t is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement.”  (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)

In the case at bar, the same bench officer had supervised this case for five years, far longer than the general period of dependency.   Thus, the court was in best position to do weighing required at a .26 hearing;  substantial evidence supports the court's finding that the exception did not apply.

DISPOSITION

The order is affirmed.

We concur:

FOOTNOTES

FN1. All statutory references are to the Welfare and Institutions Code..  FN1. All statutory references are to the Welfare and Institutions Code.

FN2. On appeal, mother notes she had a drug panel on March 17, 2010, showing she was negative for all drugs;  that panel showed mother was positive for codeine and opiates.   Mother suggests the showing was the result of her prescription medications..  FN2. On appeal, mother notes she had a drug panel on March 17, 2010, showing she was negative for all drugs;  that panel showed mother was positive for codeine and opiates.   Mother suggests the showing was the result of her prescription medications.

ZELON, J. JACKSON, J.