1 Filed 6/19/14 In re A.C. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELL ATE DISTRICT DIVISION TWO

In re A.C., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,

v. A.C. et al., Defendants and Appellants. E059633 (Super.Ct.No. RIJ116058) OPINION

APPEAL from the Superior Court of Riverside County. Tamara L. Wagner, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant A.C. Brent D. Riggs, under appointment by the Court of Appeal, for Defendant and Appellant B.P.2 Pamela J. Walls, County Counsel, Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent. No appearance for Minor. Defendants and appellants B.P. (Mot her) and A.C. (Father) appeal the termination of their parental rights under Welfare and Institutions Code section 366.26 1 as to their minor daughter A.C. (Minor). A lthough they have file d independently, they join in each other’s briefs. Mother contends the juvenile court erred in not awarding custody to Father, in terminating parental rights without making a finding that there were active efforts made to provide reunifi cation services, and in failing to find a parental bond existed between Mother and Mino r. Father asserts that the denial of his modification petition following his release from prison was an abuse of discretion. Because we find the juvenile court’s rulings correct and supported by the record, we affirm. FACTUAL AND PROC EDURAL HISTORY
A. FAMILY HISTORY Minor is the only child of both Mother and Father. They are not married, and each has had children with ot her partners. Mother is a member of a federally recognized Indian tribe. Mo ther’s other children, A.A.J., A.M.A. and D.A. have been subject to dependency actions. Moth er had previously tested positive for methamphetamine when she delivered A.M.A. in 2005. In March 2008, a section 300

1 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.3 petition was filed on behalf of A.A.J., A.M.A., and D.A., be cause Mother and D.A., had tested positive for methamphetamine. Mother had at that time a criminal record, which included three drug-related misdemeanor co nvictions and felony convictions for burglary and theft of public services. Although a protective custody warrant wa s issued on March 13 for the children, A.A.J. and A.M.A. could not be located and it was belie ved that their father had absconded with them. At a Jurisdiction/ Disposition hearing on April 7, D.A. was placed in out-of-home care and Mother was given family reunification services. The absent father was denied services. In February 2009, while mother was receiving services, she delivered another child, A.H.A. When Mother informed her social worker of the birth, a section 300 petition was opened on A.H.A. Although Mother was progressing in her drug abuse treatment, she was residing in a home with a dults with criminal re cords. On February 27, A.H.A. was removed from Mo ther’s custody. She was continued in reunification services, and D.A. and A.H.A. were returned to her care on November 12. A.A.J. and
A.M.A. were not located an d that matter was dismissed. 2 Mother completed her case plan and the dependency was terminated as to A.H.A. and D.A. on May 10, 2010. Mother was the subject of a substantiate d general neglect referral on January 23, 2011. It was reported that she was receiv ing public assistance from two counties for children not in her care and that she te sted positive for methamphetamine after

2 It appeared that as of November 15, 2011, A.A.J. and A.M.A. were residing with M.A., their paternal grandmother (PGM).4 unsuccessfully trying to dilute her test samp le. Subsequently, Moth er was arrested on felony possession charges on November 17, 2011, which resulted in a misdemeanor conviction. As part of her probation, sh e was to provide her pr obation officer with proof of enrollment into a substance abuse pr ogram by December 23, 2011. Mother had violated probation for a prior conviction in 2010 by failing a drug test, but had been diverted to a drug abuse pr ogram for pregnant women. Father was involved in a dependency action concerning three children he had with another partner. On September 23 , 2004, a section 300 petition was filed following an incident of domestic violence that was witnessed by his children. In addition, it was alleged that their mother had tested positive for methamphetamine and was not accepting treatment. The children were placed with their mother, and Father was given family maintenance and reunificat ion services. Father’s participation was unsatisfactory and he subseq uently became incarcerated. The dependency terminated on May 11, 2006, with custody retu rned to the ch ildren’s mother. Father had felony convictions for domes tic violence and dissuading a witness. He also had two felony convictions for posse ssion of drugs. One was in 2004, and the

most recent was entere d on July 30, 2010.
B. MINOR Minor was born in September 2011. A general neglect referral was made on November 9 following Mother’s positive test for methamphetamine and her admission that she been using when she was pregnant . Mother admitted cu rrent drug use, but considered herself a “casual” methamphetamine user. The investigating social worker5 considered Mother’s answers evasive and less than honest. Mother admitted that she had recently been in prison, but claimed she di dn’t know why or when . She stated that Father was in prison “because of drugs,” and would be out in two or three years. The social worker obse rved that Minor had the movements and physical characteristics of drug-exposed infants. It appeared that Minor was accustomed to being fed via breast and not by bottle. She was taken to Riverside County Regional Medical Center where it was determined the infant was experiencing drug withdrawal symptoms. Defendant and respondent Riverside County Department of Public Social Services (the Department) filed a sec tion 300 petition on November 14, which was granted on November 15. Mi nor was initially placed in a foster home and shortly afterward moved to the care of PGM. A Jurisdiction/Disposition report was f iled on December 29, 2011. The report disclosed that Father told a social worker he planned to overcome his drug habit and he wanted to care for Minor upon his release fro m prison. He said he was wait-listed for drug treatment in prison; he had never be fore been eligible for substance abuse treatments because this was his first drug-relate d conviction. He told the social worker he had previously taken parenting, Alcoholic s Anonymous, and gang di version classes. When interviewed for the report, Mother denied ever breastfeeding Minor. PGM reported that Mother telephoned to set up a vi sit with the children for the next day, but did not show. PGM told the social wo rker Father had “‘struggled’” with methamphetamine use. She admitted she di d not know much about Mother and that6 Mother was not very forthcoming with her, but that Father called her weekly from prison. She stated Mother was always very attentive and appropriate with Minor and that Mother seemed to have bonded to the child. She re ported Mother had a number of pleasant visits with Minor, including one on Christmas Eve, and that Mother was saddened when told how well Minor had bo nded with her pate rnal grandparents. The foster parents who had cared for Minor before her placement with PGM reported that they thought Mother had been denied visitation be cause she had made no attempt to arrange a visit. The report included a st atement from a TANF (Tempo rary Assistance for Needy Families) official who stated that Mother had requested sh elter, cash, and hotel voucher aid, but she was now barred from receiving ho tel vouchers because she had twice been ejected by police due to her violating the te rms of housing by lodging multiple unrelated people in her room and by ha ving “multiple people” coming and going late at night. In addition, Mother did not co mply with the program’s drug testing requirements. In a section describing the services pr ovided to the family , the report noted Mother had previously received services as part of the 2006 depe ndency. The social worker reported a meeting with Mother in December 2011 to discuss available services. At that meeting, Mother stated she was goi ng to enroll in a substa nce abuse program as part of her probation. She agreed to take a drug test, but failed to test, and did not provide proof of enrollment in an abuse progr am. Father was likewise sent information regarding services, but, given the length of his prison term and the child’s age, he was told that adoption or legal guardianship was the expected plan. He expressed7 disappointment and said he did not wish to give up his parental rights. Mother, likewise, objected to the loss of her parental rights. On January 4, 2012, the juvenile cour t sustained the petition, declared Minor a dependent, and ordered her remo ved from her parents’ custody. Services to Mother and Father were bypassed pursuant to section 361.5, subdivisions (b)(13) and (e)(1), respectively. The Seminole Nation of Oklahoma was contacted on February 27, 2012, to register Minor as a member prior to her ad option. Minor was registered as a tribal member on September 13, 2012, and enro lled on October 11, 2012. The Seminole Nation assented on October 16, 2012, to the planned adoption by PGM. While matters were on hold for resolution of the tribal issu es, Mother was arrested for felony theft on July 23, 2012. During her time in jail, Moth er’s twice-weekly visits with Minor were discontinued, and she had only tw o visits with her thereafte r. Father was released from jail on August 8, 2013. The Seminole Nati on denied a request for tribal customary adoption on March 28, 2013, removi ng the hold on further proceedings.
C. PROCEEDINGS In advance of the September 13, 2013, section 366. 26 Selection and Implementation hearing, a number of documen ts were filed. The Department filed a Court Addendum report on December 28, 2012 , which included an expert declaration by Phillip Powers (Powers). Powers hol ds a Masters degree in Psychological counseling, and was a former CPS social wo rker who worked 12 years for the Indian Specialty Unit formed by San Di ego County for the implemen tation of the Indian Child8 Welfare Act (ICWA). He was also a member of the Cherokee Nation of Oklahoma. He reviewed the case files and interviewed pers ons connected with th e case to draft his declaration, although both Mother and Father were unava ilable to him. He noted Mother failed to show up for drug testi ng, and she had failed to show proof of enrollment in a drug abuse program as requi red by her 2011 possession conviction. In his expert opinion, Minor’s return to eith er parent would cause danger of severe physical and emotional harm. He also decl ared, “Active Efforts to prevent the breakup of an Indian family were made by [the Department] in this case.” The Department filed a s ubsequent Postpermanency Status Review report on March 21, 2013, which incorporated those view s. The report stated that Minor was at “a very high risk of abuse or neglect” if the dependency were terminated and that “neither parent has addressed the issues that brought the child to the Court’s attention.” Following the denial of the request for trib al customary adoption, the Department filed further Court Addendum reports on July 3, 2013, and September 3, 2013, reiterating the risk to Minor, the appropriateness of her adoption by PGM, and the necessity of terminating parental rights. Father filed a JV-180 Request to Cha nge Court Order on September 6, 2013, which asked the court to place Minor with hi m and terminate the dependency, place her with him on family maintena nce, or provide him with family reunification services. Father stated he had been released from prison, had sign ed up for thre e reformative classes, and had been clean and sober over two years. In addition, he cited that he had a strong bond with Minor, as he called her regu larly, she recognized his voice, and called9 him “Daddy.” He has had “good” supervised visits with her where she was excited to see him and gives him hugs. The request was heard at the Septembe r 9, 2013, section 366.26 hearing; the court found that active efforts were made and were unsuccessful, that adoption was likely, and that a basis existed for termination of parental rights. The court then ordered Mother’s and Father’s parental rights te rminated and ordere d Minor referred for adoption, with the current caretakers to be given preference. Regarding Father’s petition, the court found his “circumstances are changing” but it could not “make a finding of changed circumstan ces.” Father had requested services at the hearing on January 4, 2012, on the basis that he was de termined to change his life and desired to participate in services. The court again deni ed services. Lastly, the court accepted a stipulation from the parties that expert witn ess Powers’s declaration be accepted in lieu of testimony. DISCUSSION Mother argues that the court should have granted custody to Father because there was not proof beyond a reasonable doubt that doing so would have harmed Minor, that there were no active efforts to reunify the family, and that there was a parental bond between Mother and Minor. Father asserts it was an abuse of discretion to deny his JV180 petition. These contentions are unpersuasive; we affirm.
A. CUSTODY Mother questions the court’s finding that returning Minor to Father’s custody would expose Minor to risk of serious harm.10 Termination of parental rights may not be ordered “in the absence of a determination, supported by evidence be yond a reasonable doubt, including testimony of qualified expert witnesses, that the con tinued custody of the ch ild by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” (25 U.S.C.A. § 1912(f ).) Likewise, Welfare and Ins titutions Code section 366.26, subdivision (c)(2)(B)(ii) requires “a determin ation at the hearing terminating parental rights, supported by evidence beyond a reasonable doubt, including testimony of one or more ‘qualified expert witnesses’ as defi ned in Section 224.6, that the continued custody of the child by the pa rent is likely to result in serious emotional or physical damage to the child.” Under Welfare a nd Institutions Code se ction 224.6, such qualified experts include “a social worke r, sociologist, physician, psychologist, traditional tribal therapist and healer, tribal sp iritual leader, tribal historian, or tribal elder, provided the individual is not an employee of the person or agency recommending foster care placement or termination of parental rights.” We review the court’s ICWA detriment finding for supporting evidence that is reasonable, credible, and of so lid value, and uphold the juve nile court’s finding unless it can be said that no rational fact finde r could reach the same conclusion. ( In re Barbara
R. (2006) 137 Cal.App.4th 941, 951.) Unde r this standard, we do not pass on the credibility of witnesses, atte mpt to resolve conflicts in the evidence, or reweigh the evidence. Instead, we draw all reasonable in ferences in support of the findings, view the record favorably to the j uvenile court’s order and affirm the order even if there is other evidence to the contrary. ( In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) The11 appellant has the burden of showing there is no evidence of a su fficiently substantial nature to support the court’s finding. ( In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) Mother asserts the sole harm to whic h parental custody exposed Minor was the risk that she would be breastfed milk th at was tainted by methamphetamine. Moving Minor to Father’s care would have eliminated that risk, she argues, and Father would likely have put Minor into the same care wher e the Department eventually placed her. Mother states there was in sufficient evidence for a fi nding beyond a re asonable doubt that Father’s custody exposed Minor to an y risk. Further, there was no finding by the court of such risk of harm. Mother’s argument limits th e evidence regarding risk of harm to the statements by a Department social worker regarding Mi nor’s withdrawal symp toms. The social worker’s testimony does not stand alone. The specific charge is corroborated by Mother’s admission of drug use. More broadl y, the record itself discloses an extensive history of drug abuse, criminal activity, and reckless behavior by Mother. Since Mother is not arguing for her own custody of Minor, the court will consider whether Father’s custody entailed any risk. The record discloses that Father was previously part of a dependency action for three children he had with another partner. It was alleged there was drug use in the home and that domestic violence had taken place in front of the children. Father did not satisfactorily participate in the proffered maintenance and reunification services, and was incarcerated. Although Father’s imprison ment records do not appear to be part of the record before this court, it is reasonabl e to assume he was incarcerated in connection12 with the drug possession and dome stic violence felonies to which he pled guilty in 2004. At the time of the ins titution of the dependency acti on, Father was in prison for another drug possession felony and admitte dly had been using methamphetamine. Mother assumes Father would have made a safe placement for Minor had she been put in his indirect care, but the record of his judgment is not reassuring. Further, the court took testimony from Powers, an expert qualified under multiple aspects of section 224.6. He conducted a thor ough assessment, including direct interviews of persons knowledgeable about the matter, and found that Minor’s return to either parent would cause danger of severe physical and emotional harm. This expert opinion, combined with the facts in the record concerning Father’s felony convictions, drug use, and prior family i ssues, is sufficient evidence to justify the court’s finding beyond a reas onable doubt that the continued custody of Minor by Father was likely to result in serious emotio nal or physical damage to the child. Mother asserts no such finding was ma de and that we may not infer one. ( In re Abram L. (2013) 219 Cal.App.4th 452, 462-463.) The court did find, “[a] sufficient basis for termination of parental rights exists ,” which must mean th at the court found a risk of serious harm. That find ing, and the record before this court, is a basis for us to imply an explicit finding. There is no bar to such a finding; Abram L. holds only that such findings may not be presumed when it appears from the record that the juvenile court failed to consider the correct statute. ( Id . at p. 462.) As noted in that case, we may imply such a finding when, as here, the evidence is clear and substantial. ( Id . at p. 463, fn. 5; In re Corinna G (1989) 213 Cal.App.3d 73, 83-84.)13 B. ACTIVE EFFORTS Mother argues the denial of reunification services to her and Father violates the requirement under ICWA that active efforts be made to prevent the breakup of an Indian family. “Whether active efforts were made is a mixed question of law and fact. [Citation.] We can determine what services were provided by reference to the record. Whether those services constituted ‘active effo rts’ within the meaning of section 361.7 is a question of law which we deci de independently. [Citation.]” ( In re K.B . (2009) 173 Cal.App.4th 1275, 1286 ( K.B. ).) As noted above, we review ICWA findings for supporting evidence that is reasonabl e, credible, and of solid value. An agency seeking termination of parental rights to an Indian child “shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” (25 U.S.C. § 1912, subd. (d); see also §§ 366.26, subd. (c)(2)(B)(i), 361.7.) The phras e “active efforts” means that “timely and affirmative steps be taken to accomplish the goal which Congress has set: to avoid the breakup of Indian families whenever possible by providing services designed to remedy problems which might lead to severa nce of the parent-child relationship.” ( Letitia V. v. Superior Court (2000) 81 Cal.App. 4th 1009, 1016 ( Letitia V. ) italics added; see also K.B. , supra , 173 Cal.App.4th at p. 1284.)14 There is no established formula for distinguishing between active and passive efforts. ( K.B. , supra , 173 Cal.App.4th at p. 1287.) “H owever, the following is a useful guideline: ‘Passive efforts are where a plan is drawn up and the clie nt must develop his or her own resources towards bringing it to fr uition. Active efforts . . . [are] where the state caseworker takes the client through the steps of the plan rather than requiring that the plan be performed on its own. For instance, rath er than requiring that a client find a job, acquire new housing, and terminate a rela tionship with what is perceived to be a boyfriend who is a bad influence, [ICWA] w ould require that the caseworker help the client develop job a nd parenting skills necessary to retain custody of her child.’ [Citation.]” ( Id. at p. 1287.) “Although the phrase ‘a ctive efforts’ is not defined by either federal or state statute, California co urts have construed ‘active efforts’ to be ‘essentially equivalent to reasonable efforts to provide or offer reunification services in a non-ICWA case . . . .’ [Citations.]” ( In re C.B. (2010) 190 Cal.A pp.4th 102, 134.) The law requires a reasonable effort be made to reunify an Indian family whenever it is possible that such efforts will succeed. Both Mother and Father were contacted by social workers at the beginning of the dependency acti on. As an initial matter, Mother me t with a social worker who provided a family assistance p ackage to her and reviewed it with her. Further steps were not taken with Mother becau se she made herself difficult to contact, failed to comply with drug testing requirements and continued drug use, and was arrested on felony theft charges. Father was interviewed in custody, but was informed he would not be offered reunification services because of the child’s age and the length of his imprisonment.15 The social workers had reason to suspect Mother and Father were less than honest and forthcoming with them. Father’s imprisonm ent and Mother’s subsequent confinement put an effective end to the e fforts to reunify the family. Both Mother and Father were deni ed reunification services at the 2012 Jurisdictional hearing. Mothe r’s services were denied un der section 361.5, subdivision (b)(13), which states services may be denied where “the pare nt or guardian of the child has a history of extensive, abusive, and chro nic use of drugs or al cohol and has resisted prior court-ordered treatment for this prob lem during a three-year period immediately prior to the filing of the petition that brought that child to the court’s attention, or has failed or refused to comply w ith a program of drug or alcoho l treatment described in the case plan required by Section 358.1 on at least two prior occasi ons, even though the programs identified were available and acce ssible.” Father was denied services under section 361.5, subdivision (e)(1 ), which allows denial of serv ices to incarcerated parents after consideration of “the age of the child , the degree of pare nt-child bonding, the length of the sentence, the lengt h and nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered and, for children 10 years of age or older, the child’s attit ude toward the implementation of family reunification services, the likelihood of th e parent’s discharge from incarceration, institutionalization, or detention within th e reunification time limi tations described in subdivision (a), and any other appropriate fa ctors.” Thereafter, at the Selection and Implementation hearing, the juvenile court, following the lead of the opinion of the expert witness, found sufficient active efforts had been made to reunify the family.16 At worst, Mother argues, she failed dur ing the relevant period to complete a criminal-court-ordered drug program for pr egnant women and failed to provide proof that she enrolled in a substance abuse edu cation program. Father, she contends, was denied services solely beca use he was imprisoned. Mother argues that active efforts to pr ovide services must be made even where the prospect of successful reunification is dim. She cites In re Michael G (1998) 63 Cal.App.4th 700, as authority requiring that services be provided unless they would be harmful to the minor. There, the mother was described as “‘disturbed (and disturbing)’” and the father as a “‘low intensity sociopath.’” ( Id . at pp. 705-706.) The parents received “a plethora of services” that “prove d markedly unsuccessful” until transfer of the case to the Navajo Nation ca used services to end when the court lost track of the parents. ( Id . at pp. 714-715.) The court’s finding of “active efforts” was reversed because of the sudden termination of the reunifica tion services. “[T]he 12-month statutory reunification period is not reduced simply because parents are not expected to comply or succeed.” ( Ibid .) Further, section 361.7 requires provision of services to Indian families even where reunification services coul d be denied under s ection 361.5. Cases to the contrary, Mother argues, must be lim ited to their facts. ( K.B ., supra , 173 Cal.App.4th at p. 1279 [father was a ch ild molester], Letitia V. , supra , 81 Cal.App.4th at p. 1015 [active efforts attempted before mother’s relapse].) Unless th e provision of those services were an idle act, she contends, they are required under the law. Mother’s reliance on the cited cases is misplaced.17 The parents in In re Michael G. , supra , were performing poorly when the transfer of the case caused their services to stop abrup tly. The facts that (1) the parents were not progressing, and (2) that their personalities made them unlikely to bene fit was held to be insufficient reason to presume they did not have a right to complete the course of services that had been set for them. Both K.B. and Letitia V. countenanced the denial of services to an Indian family under similar circumstances. K.B. ’s facts are not similar to the instant case, but Letitia V . has similarities. The mother there had a drug addiction, used drugs during pregnancy, and had been frequently in dependency court with other siblings because of drug use. The mother had been ordered to participate in a drug treatment plan, Narcotics Anonymous, pare nting classes, and counseling, and was encouraged by her social work er to do so, but failed to follow through and ended her interaction with child services when she was jailed on drug charges. ( Letitia V. , supra , 81 Cal.App.4th at pp. 1011-1014.) Mother’s history is similar. Mother had taken drugs through three preg nancies. She does not have custody of any of Minor’s siblings. She has twice befo re been through depe ndency court because her drug addiction was more compelling than caring for her children. Although Mother successfully resolved one dependency throu gh treatment, she relapsed into drug use less than a year later despite being responsible for the care of tw o infants. She violated her probation on a criminal charge by failing a drug test and was expelled from programs for refusing to test. She had a significant cr iminal history, was dishonest, and could not refrain from further criminal ac tivity during the pe ndency of this action. Denial of reunification services is not a matter of pr ejudging her willingness or ability to comply18 with the program; it is a matter of recognizing the futility of trying again. As noted in
Letitia V , “the court cannot be faulted under eith er state or federal law for choosing not to expend resources which merely duplicate efforts that have already been made.” ( Letitia V. , supra , 81 Cal.App.4th at p. 1018.) Simila rly, father’s imprisonment was not the sole factor in denying him services. His previous failure to be nefit from or complete services, his lack of candor, his violent crim inal record, and the sa me destructive habit of drug abuse supports the court’s view that it would be a pointless gesture to attempt to unify the family. By meeting with the Moth er and informing her of the services available, the Department began active efforts to provide re unification services to her. Mother’s prior history and her current inab ility or unwillingness to confor m to the expectations set before her, which culminated in another arrest, made further provision of services pointless. Similarly, Fathe r’s incarceration and his record in criminal and dependency cases justified the juvenile court deciding to deny services.
C. PARENTAL BOND Mother asserts that the court erred by not applying the parental bond exception to bar termination of her parental rights because of the strong bond that existed between her and Minor.19 On appeal, we review the order termin ating parental rights under a substantial evidence standard. ( In re Jasmon O . (1994) 8 Cal.4th 398, 422-423.) 3 In doing so, we do not reweigh the evidence or exercise our independent judgment. Rather, we review the evidence in the light most favorable to the judgment and decide if the evidence in support of the judgment is re asonable, credible and of solid value such that a reasonable trier of fact could find that termination of parental rights is appropriate based on clear and convincing evidence. ( Ibid .) Mother bears the burden of proving the beneficial relationship exception applies. ( In re Cristella C . (1992) 6 Cal.App.4th 1363, 1372- 1373.) The beneficial parental relationship exce ption applies when “[t]he parents have maintained regular visitation and contact w ith the child and the child would benefit from continuing the relationship.” (§ 366. 26, subd. (c)(1)(B)(i).) “[T]he parent must show more than frequent and loving contact or pleasant visits. [Citation.] ‘Interaction between natural parent and chil d will always confer some incidental benefit to the child . . . . [Citation.]’ [Citation.] The parent must show he or she occupies a parental role in the child’s life, resulting in a significant, positive, emotional attachment from child to parent. [Citations.]” ( In re L.Y.L. , supra , 101 Cal.App.4th at pp. 953-954, quoting In re
Autumn H (1994) 27 Cal.App.4th 567, 575.) “In other words, for the exception to apply, the emotional attachment between the ch ild and parent must be that of parent and

3 Some courts have applied an abuse of discretion standard. ( In re Jasmine D

. (2000) 78 Cal.App.4th 1339, 1351.) Under e ither standard Mother’s contention fails.20 child rather than one of being a friendly visito r or friendly nonparent relative, such as an aunt. [Citation.]” ( In re Angel B . (2002) 97 Cal.Ap p.4th 454, 468.) In support of her claim, Mother notes that, although she only had custody of Minor for the first two years of Minor’s life, Mother visited her frequently and mothered her during their regular twice- weekly visits, until Mother was again incarcerated in July of 2012. In response to the Depa rtment’s rejoinder that Minor had bonded to PGM, Mother rejoins that there is no evidence in the record Minor was not bonded to Mother. That is not a sufficient response. Minor was two months old when Moth er’s drug use require d that Minor be placed in foster care. Mother visited Mino r sporadically thereaft er, perhaps achieving twice-weekly visits over a 10-month period. Since Mothe r’s latest arrest, she has apparently seen Minor twice in the follo wing 18 months. On this basis, Mother contends that she has carried her burden of proof. She has not. Mother may be bonded to the child, but that is not the test. Mother must show that Minor thinks of her as a parent and that she has acted as a parent to her. Finding no evidence in the record that Minor has an emotional attach ment to Mother, we affirm the court’s decision not to apply the parental bond exception.
D. CHANGE OF CIRCUMSTANCES Father asserts the juvenile court abused its discretion when it denied his section 388 petition to modify the orde r terminating his parental rights due to a change in circumstance.21 Section 388 provides that the juvenile cour t may, in its discretion, modify a prior order on the request of any interested person, if the court finds both (1) new evidence or a material change in circumstances justifyi ng modification of the order, and (2) that the requested modification w ould be in the child’s best inte rests. (§ 388, subd. (a).) A person filing a section 388 pe tition has the burden to show by a preponderance of the evidence that there is new ev idence or there are change d circumstances that make modification of a prior order in the best interests of the child. ( In re Stephanie M. (1994) 7 Cal.4th 295, 317.) When a party having the burden of proo f on an issue challenges a finding that reflects the trier of fact’s rejection of that party’s evidence, “the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the qu estion becomes whether the appellant’s evidence was (1 ) ‘uncontradicted and unimpe ached’ and (2) ‘of such a character and weight as to leave no room for a judicial determination that it was insufficient to support [the ] finding.’ [Citation.]” ( In re I.W. (2009) 180 Cal.App.4th 1517, 1528, italics added.) Stat ed another way, Father’s cha llenge to the court’s finding that no change in circumstance had oc curred amounts to a contention that the “undisputed facts lead to only one conclusion.” ( Id . at p. 1529; see also In re A.A. (2012) 203 Cal.App.4th 597, 612.) As noted above, Father’s prior history represented a major factor in considering whether to offer him reunification services while in prison. His incarcerated status was not the sole factor in denying services; as bot h Mother and Father noted, it could not be,22 as there is no rule that prisoners must lose custody of their childre n. Consequently, his release from prison did not solve all of the in firmities he suffered in seeking to retain custody. Father had a violent criminal reco rd, had failed to comply with a prior family reunification plan, and he had a serious drug problem. Father can do nothing about his record except to not add to it. Likewise, he cannot undo his previous family reunifica tion failure. He can, however, take positive steps now, and that is what he states he has done. He claims he has been clean and sober for a significant period of time and has nearly completed treatment and a parenting class. Further, Father argues it is significant that he has established some degree of bonding with Mino r. Minor recognizes his voice, calls him “Daddy,” and they have pleasant interacti ons. Although the inception of a parental bond is a good thing, these facts were before the juve nile court and do not establish changed circumstances. Father has demonstrated pos itive intent and has begun to make positive changes in his life. The juvenile court recognized Fath er’s intent and acknowledged his circumstances were changing. The juvenile court did not find that sufficient, nor can we. The changes must be considered in lig ht of a long-term addiction problem and the fact Father has been out of prison less than eight months. When asked in 2011 about his plans for treatment, Father stated he ha d not taken treatment because he had not previously been arrested on drug related ch arges. That statement must be weighed against Father’s current profession of intent. He states he has nearly completed some programs and will continue to stay sober. While encouraging, these assurances do not23 amount to unimpeached facts that lead to on ly one conclusion. As noted by Minor’s counsel at the hearing, the petition is premat ure. The juvenile court’s decision not to grant Father’s section 388 petition was not an abuse of discretion. DISPOSITION The judgments as to Mother and Father are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER J.

We concur:

RICHLI Acting P. J.

KING J.