In re Alexis M.

Filed 8/23/07 In re Alexis M. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

In this juvenile dependency matter, the mother of two children appeals from the termination of parental rights (Welf. & Inst. Code, 366.26)[1] and from the denial of her petition under section 388 to modify existing orders terminating reunification services. She contends that the court abused its discretion in denying her section 388 petition and that the exception provided in section 366.26, subdivision (c)(1)(A), applied here to prevent termination of her parental rights, because the evidence showed she had an ongoing beneficial relationship with her children. We reject these contentions and affirm the judgment terminating parental rights.

BACKGROUND

In December of 2005, the younger of the mothers two children was removed from her care shortly after her birth, when both she and the mother tested positive for amphetamines. The mothers other child, approximately 13 months old, was staying with his father and paternal relatives. He was removed from their care several weeks later due to neglect, exposure to domestic violence and medical neglect by the father.

On January 26, 2006, amended section 300 petitions were sustained for both children under subdivisions (b) [failure to protect], (g) [no provision for support] and (j) [abuse of sibling]. The petitions alleged that the mother had a substance abuse problem, lacked stable housing, and was involved in a violent relationship with the father of the older child. The father of the older child had a criminal history and had recently been arrested after being involved in a high speed chase, with charges including violating parole, hit and run, assault with a deadly weapon and driving under the influence. Both the mother and father had themselves been dependent children. The father of the mothers youngest child was unknown. The children had been placed separately, but a concurrent home with a non-relative extended family member, suggested by the mother, was being considered for both children.

A disposition hearing was held on March 3, 2006, and the children were declared to be dependent children. The father was still incarcerated. The children had been placed together in the home of the non-relative extended family member. The mother did not have housing and failed to follow up with referrals. She was sporadic in showing up for the visits. Services were ordered for the mother and the father of the older child, including parenting classes, drug testing, and attendance at a substance abuse program. Visitation was ordered for the mother for a minimum of two hours a week with each child. The agency was attempting to locate the father of the younger child.

At an interim review on April 21, 2006, the social worker reported that the mother had been dropped from parent education classes because of lack of attendance. Visits were terminated by the visitation facility because the mother was repeatedly late or failed to show up. The social worker had a difficult time reaching the mother. When the social worker talked with the mother in May of 2006, the mother expressed concern about caring for both children and was uncertain whether she should seek reunification with the younger child. The father of the older child remained incarcerated.

At the next review on June 2, 2006, it was reported that the mother had entered the Mariposa Lodge treatment program on May 24, 2006, but had discharged herself two days later. The social worker was often unable to reach the mother. The mother had not participated in any part of her plan except visitation, although her visitation was infrequent. When she did visit with the children, she was attentive and interacted appropriately, but spent most of her attention on the older child.

In the report for the six-month review, set for July 14, 2006, the agency recommended termination of reunification services. Since leaving Mariposa Lodge on May 26, 2006, the mother had contacted the social worker only sporadically and had failed to follow through with any referrals. Then, on June 28, 2006, the mother informed the social worker that she would be reentering Mariposa Lodge on June 29, 2006. According to the social worker, the mother explained that she was finally ready to do what she needs to do to have her children back with her. Meanwhile, the children were thriving in their placement, where their caretaker was willing and able to adopt them if reunification services failed. The mother had only had two supervised visits with the children prior to entering Mariposa the second time. During these visits she was reportedly appropriate and loving.

The court terminated reunification services on July 14, 2006, under section 361.5, subdivision (a)(2), and section 366.21, subdivision (e), which provide for a maximum of six months of services in cases where the children are under three years of age. The court made the appropriate findings, including that there would be a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the children if they were returned to their parents care, that reasonable services had been offered and provided, but that the parents had failed to participate regularly in the court-ordered treatment plan and that there was no substantial probability that the children could be returned to their care within six months. A selection and implementation hearing, pursuant to section 366.26, was set for October 27, 2006. When court convened on that date, the mothers attorney informed the court that she would be filing a section 388 petition, and the hearing was continued to November 17, 2006.

On October 31, 2006, the mother filed a section 388 petition for modification of existing orders terminating reunification services. She sought an order returning her children to her under a plan of family maintenance, or in the alternative an order for additional reunification services. The mother alleged that she had successfully completed a program at Mariposa Lodge, from June 29, 2006 to September 14, 2006, that she was currently enrolled in a transition program and a womens drug intervention program, that she was attending twelve-step meetings, and that she had been clean and sober since June 27, 2006. She stated that she was living in a drug-free home with her brother and sister, that she was enrolled in a parenting class, and that she had regularly attended weekly visitation with her children. She had recently obtained part-time employment at a restaurant. She included references from her counselor at Mariposa Lodge and from others who attested to the changes she had made in her life. The court set a hearing on the section 388 petition, to coincide with the section 366.26 hearing date.

The social workers report for November 17, 2006, confirmed that the mother had stable housing. She shared a one-bedroom apartment with her brother and his three-year-old son, and her sister, who was six months pregnant. The mother was on a waiting list for Section VIII housing, and was working as a server in Carrows Restaurant. She was attending a parenting class. The father of the older child had been transferred to North Kern State Prison, where he remained incarcerated. No father had been located for the younger child.

The social worker recommended that the court terminate parental rights. While commending the mother for achieving a clean and sober lifestyle, the social worker wrote that the mother had not begun to work on her case plan until two weeks before services were terminated, that the children had suffered from neglect in her care, and that it would be detrimental to them to disrupt their stable placement. The children were thriving in the home of the non-relative extended family member, where they had been placed for the past ten months, and they were bonded with their caretaker. Both children were highly adoptable.

The section 366.26 hearing and the hearing on the section 388 petition were combined and set for trial on December 8, 2006. However, on that date only the section 388 petition was heard, due to time constraints. The social worker and the mother testified, and the court received evidence. The parties agreed that the evidence and testimony could also be used for the continuation of the section 366.26 hearing.

The social worker testified that this young mother had made some positive changes in her life. After Mariposa Lodge, the mother had graduated to an outpatient program, and was also participating in a parenting class. The social worker had visited the mothers apartment, which she shared with her two siblings, and found it to be very tidy. The mother was visiting with the children regularly two hours a week. However, the social worker noted that services had been terminated for the mother, and that she had not performed any part of her plan during the six months that services had been offered. Since reunification services had been terminated, the focus was on providing a stable permanent plan for the children. While the social worker stated that she was really proud of the mother for her commitment to a clean and sober lifestyle, the social worker observed that the mother was still in early recovery. Further, the mothers living situation, while clean and tidy, was very small and would be extremely crowded with the addition of two children. The younger child had been removed from the mothers care at birth and the older child had been in the same placement together with his sibling for ten months. They were both very attached to their caregiver. The social worker concluded that it would not be in the childrens best interests to return them to the mothers care with family maintenance services. This would destabilize the placement where they had established a relationship of trust, safety and consistency. She further testified that in her opinion it would not be in the childrens best interests to offer further reunification services at this point as this would only continue the confusion of the children.

The mother described her life as a dependent child growing up in foster care, where she was introduced to drugs. She described her unstable life style as a young adult, which continued after her children were removed until she admitted herself to Mariposa Lodge for the second time on June 29, 2006. Upon her release from the program on September 14, 2006, the treatment status report described her as a completely different woman than the one who first checked into this program. There was also a positive report from the parenting program that the mother was attending. The mother explained her present living situation with her brother and sister in a drug-free home. She often took care of her three-year old nephew, who went to her parenting class with her. She had been sober since June 27, 2006, attended twelve-step meetings every day and had a sponsor she talked with several times a week. She testified that since she got sober, everything in her life had changed. She had more confidence and was more motivated and had developed a support system of friends and family. She believed that the visits with her children went very well and she thought she had a positive bond with them. She believed that she was currently in a position to meet her childrens needs, and said she would be willing to participate in further services in order to show her commitment. She did not believe she would relapse because she now had her support group around her and the tools to cope.

The court congratulated the mother on her remarkable job of recovery over the past six months. However the court noted it was bound to follow the statutory scheme, which provided for six months of services where children are under three years of age. After that a court must look to concurrent placement and permanency for the child. The court noted it was hopeful that the mother could continue on a successful track in her life. But considering the childrens very young ages, and their need to have permanency and attachment in their lives, the court concluded on balance that the best interests of the children would not be served by modifying existing orders.

The social workers report for the continued section 366.26 hearing, set for January 26, 2007, noted that the father of the older child had had no contact with the child since the child was removed from his care in December of 2005. At the time of the hearing, the children were approximately two years old and one year old. They were described as attractive affectionate children, who were bonded to their caretakers and friendly with others. Recently some concerns had arisen regarding the younger childs physical and neurological well-being, possibly due to her being exposed to drugs in vitro. The caretaker was aware of these problems and was also aware that the older child had the potential for facing developmental difficulties due to possible in vitro drug exposure. The caretaker was seeking services to address these issues. She had formerly been a neighbor of the mothers and had been taking care of the older child off and on since he was only a few months old. The younger child had been placed with her as a baby, at the mothers suggestion. The caretaker was committed to adopting both children.

The mother had visited the children only three times during the six months of services. When the mother started at Mariposa Lodge at the end of June 2006, she requested and received visits with the older child, and visits were also later arranged for the younger child. Since that time, she had had supervised visits with the children once a week for two hours. Staff reports reflected that the mother generally does well with the children, although it was noted that she had some difficulty meeting the needs of both children at the same time.

At the section 366.26 hearing, the social worker testified that the children were highly adoptable. She testified that the current caretakers have not wavered in their desire to adopt these children. The children visited regularly with their mother once a week, for a supervised visit. They seemed to enjoy the visits. Although there had been a couple of visits with the older child the previous month where there were tears at the end of the visit, the children otherwise did not show any anxiety separating from their mother at the end of the visit. The social worker stated that the children look to their caretakers for their daily needs and that the benefit of maintaining a relationship with their mother was outweighed by their need for a permanent placement.

The mother testified that she was the older childs primary caretaker for the first year of his life and that she provided for all of his needs. She believed she had a bond with both of her children, and especially with the older one. She testified that they were always glad to see her and that both children were very affectionate towards her during the visits. They both called her mom, or momma. She felt that the interactions between them were of a parental nature, in that they looked to her for their needs, they paid attention to her, and she disciplined them appropriately when necessary. At a recent party at the caretakers house, she had been the one to take care of the children, give them bottles, change diapers, and put them down for naps. She felt it would be beneficial for them to maintain a relationship with her because they knew she was their mother, and if they were not allowed to see her they would always wonder as they were growing up what had happened to their mother. She believed this would be emotionally damaging.

The father of the older child also testified. He said that he took care of the child for three months before the child was placed in protective custody. He looked after the childs needs, bathed him, fed him and played with him. He felt he had a close bond with his son, even though he had not seen him for over a year since the case began. The father testified that he was due to be released from prison December 27, 2009.

The court acknowledged the obvious love these parents feel for the children, and again commended the mother on the wonderful progress she had made in her life in recent months. The court felt that the mother did have some bond with the children, but explained that it had to weigh that against not only the need for but the real opportunity for a permanent home for these children today. [] And these are very young children. They have caretakers who I believe are, in fact, the functioning day-to-day parents who have provided emotional and psychological needs for these two kids and theyre bonded. Children are bonded to the caretakers. And I think all of that outweighs any detriment and there will be some detriment from severing of the parental relationships. The court ordered parental rights terminated and ordered a goodbye visit for the mother with the children.

The mother appealed from the orders denying the section 388 petition and terminating parental rights under section 366.26.

ISSUES

Timeliness

The agency first argues that the mothers appeal from the denial of her section 388 petition is untimely. The section 388 petition was denied in court on December 8, 2006, and then the section 366.26 hearing was continued to January 26, 2007 and parental rights were terminated on that date. The mothers notice of appeal from both orders was filed March 26, 2007. California Rules of Court, rule 8.400(d)(1), provides that in dependency actions, a notice of appeal must be filed within 60 days after the rendition of the judgment or the making of the order being appealed. The agency thus contends that the appeal filed on March 26, 2007, was not timely with respect to the order denying the section 388 petition on December 8, 2006.

It appears from the record that the section 388 petition and the section 366.26 hearing were combined and set to be heard on the same date, December 8, 2006. Because of time constraints, after receiving the evidence on the section 388 petition, the court told the parties that this matter will be continued . . . . The court further explained that all of the evidence heard on the section 388 petition would be under consideration when the section 366.26 hearing resumed. Although the court ruled on the section 388 portion of the hearing, the minute order of December 8, 2006, is entitled Selection and Implementation Hearing (366.26) & 388 Hearing. Counsel did not inform the mother at that time of any right to appeal. Furthermore, the court gave no advisements to the parties about their appeal rights, as it is required to do under California Rules of Court, rule 5.585(d)(1). Similarly, rule 5.590 requires the juvenile court, after making an order at a contested hearing, to advise the parent either orally or in writing . . . of any right to appeal from such order, of the necessary steps and time for taking an appeal, . . . At the conclusion of the section 366.26 hearing, the court did advise the parents pursuant to these rules of court that they had the right to appeal and that they must do so within 60 days. The mothers appeal was filed within the 60 days and the superior court clerk accepted it for filing. (See Cal. Rules of Court, rule 8.308(d) [if a notice of appeal is filed late, the superior court clerk must notify the party that it was not filed and mark it Received . . . but not filed. ].)

Under these circumstances, we will deem the section 366.26 hearing as a continuation of the combined section 388 and 366.26 hearing and consider the appeal from both orders as timely.

Denial of the Section 388 Petition

Section 388 provides, in relevant part, (a) 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 . . . .

At a hearing on a section 388 petition, the petitioner bears the burden of showing both that there has been a change of circumstances, and that the proposed change of order is in the childs best interests. (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The petition is addressed to the courts discretion, and the courts 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; In re Casey D., supra, 70 Cal.App.4th at p. 47.) In considering whether the juvenile court abused its discretion, we view the evidence below in the light most favorable to the juvenile courts order, drawing every reasonable inference and resolving all conflicts in favor of the prevailing party. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) The mother argues that the court abused its discretion because the record shows she had established by a preponderance of the evidence that providing further services to her was in the best interests of the children. The proper standard for our review, however, is not whether the mothers evidence supported her position, but whether the courts exercise of its discretion was clearly without any evidentiary support; in other words, whether the courts decision  exceeded the bounds of reason.  (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) The mother has not demonstrated such an abuse of discretion here.

The reunification period in this case had ended when services were terminated on July 14, 2006, and the section 366.26 hearing to select a permanent plan for the children was set. On the day scheduled for that hearing, October 27, 2006, the mothers attorney informed the parties that she would be filing a section 388 petition on behalf of the mother, and the matter was continued. The petition was filed on October 31, 2006, and both the section 388 petition and the section 366.26 petition were eventually set for trial December 8, 2006.

Where reunification services have been terminated and the matter has proceeded to a section 366.26 hearing to select a permanent plan for the child, the focus of the dependency proceedings has shifted from family reunification to the childs need for a stable and permanent home. (In re Jasmon O., supra, 8 Cal.4th at p. 420; In re Marilyn H. (1993) 5 Cal.4th 295, 309.) On the eve of a section 366.26 hearing, the childs interest in stability is the courts foremost concern, outweighing the parents interest in reunification. Thus, a section 388 petition seeking reinstatement . . . of reunification services must be directed at the best interest of the child. [Citations.] (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348-1349.) At this point, the parents interest in the care, custody and companionship of the child is no longer the paramount consideration. In fact, there is a rebuttable presumption that continued foster care is in the best interest of the child [citation]; such presumption obviously applies with even greater strength when the permanent plan is adoption rather than foster care. A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, what is in the best interest of the child. (In re Angel B. (2002)97 Cal.App.4th 454, 464.)

The courts comments at the portion of the hearing addressing the mothers section 388 petition indicate that the court was aware that the focus had shifted to the interests of the children in becoming established in a permanent and stable home. The court observed that the statutory scheme provides for concurrent placement after services have been terminated and it becomes looking at the child and the childs attachment and permanency for that child. That the test today isnt whether you deserve to have services. The test today is whats in the best interest of these children where they are right now.

The mother argues that the section 388 petition is the last escape mechanism before the termination of parental rights, by which the changing conditions of the family can be taken into account. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) As such, section 388 is vital to the constitutionality of our dependency scheme as a whole, and the termination statute, section 366.26, in particular. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) The record indicates, however, that the court carefully considered the changing conditions in this case, acknowledged the mothers tremendous progress in her life, and balanced the various relevant factors in coming to its decision not to modify the existing orders.

The relevant factors in evaluating a section 388 petition have been summarized as follows: (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, 56 Cal.App.4th at p. 532.)

Here the problems leading to the dependency of the children in this case centered around the mothers drug abuse. Unlike Kimberly F., this is not a case where the problem was simply an unsanitary and cluttered house. As the court in that case observed, [a] dirty house does not pose as intractable a problem as a parents drug ingestion . . . for a childs best interests.  (In re Kimberly F. supra, 56 Cal.App.4th at p. 532.) Here the mother ingested drugs during the pregnancy of her second child, and both mother and child tested positive for amphetamines shortly after the childs birth. She informed the social worker that she had used crystal methamphetamine the day before giving birth. Although the mother was not quite 20 years old at the time, she had been using drugs for approximately four years. Because of her drug use, she was unable to keep stable housing and moved from home to home, relying on friends for shelter on a nightly basis. The mothers relationship with the father of her first child, who had a criminal record and an alcohol problem, was characterized by violence. However, the mother testified that because of her drug usage and instability, she often left the child in his care. On one occasion, the two got into a struggle over the child during which the child was dropped onto the pavement. On another occasion, the father arrived at her house in the middle of the night and forced his way into her home, breaking a window on his way out. On another occasion, the child was found in the fathers home soaked in beer. As the mother acknowledges, the problems leading to the dependency in this case were serious problems.

Furthermore, the problems continued throughout the period where reunification services were offered. The mother informed the social worker that she did not feel she had a drug problem, and she resisted residential treatment. After her children were removed from her care in December of 2005, she continued to use drugs. Although she was informed that because of the childrens ages, she would only be offered six months of services, and that she could lose her children after this time if she did not make progress on her plan, she did not participate in her plan at all during the six months of services. She visited her children only three times during the reunification period. She moved from house to house, did not return calls, and was unavailable to the social worker. The social worker wrote for the hearing terminating reunification services that the mother has been given numerous opportunities to correct the situation that brought her to the attention of the Court. The mother attributes her failure to overcome her difficulties during the first six months to the fact that she herself was a product of the dependency system and had developed poor life skills in a succession of foster homes. She testified that when she was a child in foster care, her mother was given years to reunify, and she expected similar timelines would apply to her as a mother. However, she does not deny that she was informed of the six month reunification period, and that she did not participate in services until she admitted herself for treatment just two weeks before the end of the reunification period.

As to the second factor summarized above, the court assessed the relative strengths of the bonds between the children and the mother and the children and their present caretaker. The youngest child had been removed from the mother at birth. Her exposure to her mother had been only at weekly visits, and only for four to five months prior to the hearing in this case. The older child was approximately two years old at the time of the hearing. He had been out of his mothers care for nearly a year. And although she cared for him early in his life, she also left him for periods of time in the care of the neighbor, who had become his present caretaker, as well as with his father. Although the mothers visits with the children had been positive, this was a relatively recently phenomenon. On the other hand, the caretaker had known the older child from an early age, and had cared for the younger child almost her whole life. Both children had been placed together with this caretaker since February of 2006. By all accounts, the children were content in this home, were attached to their caretaker, and were developing a sense of safety, continuity and love. As the court noted in In re Kimberly F., the disruption of an existing psychological bond between dependent children and their caretakers is an extremely important factor bearing on any section 388 motion. (In re Kimberly F., supra, 56 Cal.App.4th at p. 531, citing In re Jasmon O., supra, 8 Cal.4th at p. 419.)

As to the last factor, the mother argues that this factor favors her, because she had made the changes in her life that she needed to make and thus had removed the problems underlying the dependency. The court acknowledged that the mother had made admirable progress in conquering her drug addiction, the main problem that had led to her children being removed from her care. However, her sobriety was still at an early stage. After four years of drug abuse, she had a little over five months of sobriety, and half of that time had been spent in a residential treatment program. The court noted it was hopeful for the mothers continued success, but that the risk was still present in her early recovery, and the statutory time had run out. On balance, and considering the statutory time limitations, the court determined that it was in the childrens best interests for them to stay in their present placement where they would be adopted.

This record shows that the court carefully considered the evidence and weighed the factors relevant to a section 388 petition. We find no abuse of discretion.

The Benefit Exception in Section 366.26(c)(1)(A)

Once the court at a section 366.26 hearing has found that the child is adoptable, adoption is the preferred permanent plan. A parent seeking a different plan for the child has the burden of showing that termination of parental rights would be detrimental to the child under one of the statutory exceptions. The mother in this case does not dispute that the children are adoptable. However, she contends that the exception in section 366.26, subdivision (c)(1)(A) applies here, namely that [t]he parents [or guardians] have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(A).)

Application of the exception under subdivision (c)(1)(A) requires the parent to establish both that she maintained regular visitation and contact, and also that the child would benefit from continuing the relationship to such a degree that termination of parental rights would be detrimental to the child. ( 366.26, subd. (c)(1).) The exception must be considered in light of the strong preference for a stable permanent placement for the child. [I]t is only in an extraordinary case that preservation of the parents rights will prevail over the Legislatures preference for adoptive placement. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)

In deciding whether the exception to termination of parental rights applies, the court exercises its discretion on the basis of the record, balancing the strength and quality of the parent/child relationship against the security and stability the child would have in an adoptive home. (In re Autumn H. (1994)27 Cal.App.4th 567, 575 (Autumn H.).) In reviewing an order terminating parental rights, we must draw all reasonable inference in support of the findings made by the juvenile court, as well as consider the record most favorably to the juvenile courts order. We must affirm the order if it is supported by substantial evidence, even if other evidence supports a contrary conclusion. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.)

In order to establish the exception in section 366.26, subdivision (c)(1)(A), the parent must show that the nature of the parent/child relationship is more than a visiting relationship or friendship. Interaction between natural parent and child will always confer some incidental benefit to the child. (Autumn H., supra, 27 Cal.App.4th at p. 575; In re Brittany C. (1999) 76 Cal.App.4th 847.) The kind of relationship that is required in order to trigger the exception must be sufficiently strong to be parental in nature, such that the child would suffer detriment from its termination. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) [F]requent and loving contact, even if the visits are consistently positive, does not necessarily establish a parental relationship. (Id. at p. 1419.) Even where a child has a loving relationship with a natural parent, [i]t does not follow that . . . the juvenile court should have determined the statutory exception to termination of parental rights applied. (Ibid.) The parent must show that he or she has a parent/child relationship with the child, rather than a friendship. (In re Brittany C., supra, 76 Cal.App.4th at p. 854.)

Under the authority of these cases interpreting the statutory exception, we conclude that the mother failed to establish that she had the kind of parental relationship with her children that was sufficient to overcome the strong preference for providing the children with a stable and permanent adoptive home. The mother contends that she established the first prong of the test under section 366.26, subdivision (c)(1)(A), in that she maintained regular visitation and contact between herself and her children throughout the dependency. However, the record does not support this assertion. The mothers visits were not regular or consistent during the reunification period. She consistently missed visits or was late. She was dropped from the program at the visitation facility because of missed visits. When she entered the treatment program at Mariposa Lodge, she began to be consistent with visits with her children. However, by the time of the hearing, she had only had six months of weekly visits. Although the record reflects that the visits went well, that the mothers behavior was appropriate and that the children were affectionate with her, this contact falls short of showing the significant positive, emotional attachment from child to parent that is necessary to establish an exception to adoption. (Autumn H., supra, 27 Cal.App.4th at p. 575.)

The court in this case did find that there was some bonding, especially with older child. And the visitation logs show that the visits were positive and that the mother cared for the children appropriately during the visits. However, this evidence does not compel a finding that the benefit exception applies. The court must balance the positive aspects of the parent/child relationship against the benefit to be achieved from a permanent placement. Here, these children had been placed together in the same home for approximately 11 months. The home included the primary caretaker and extended family members. For the younger child, this was the only home she had known. The older child had been left with this same caretaker often during the first year of his life. He called her mama. Both children appeared to be very bonded with the caretaker and extended family in their foster placement. The social worker observed that the childrens needs were taken care of in their placement and that they had a sense of consistency, safety and trust. From the beginning of the placement, the caretaker had been very committed to adopting both children. Although the children enjoyed the visits with their mother, the record shows that they looked to their caretaker as the parental figure in their lives, who provided consistent daily nurturing and met their daily needs, including medical special needs.

The mother relies on evidence, consisting of her own testimony, that when she attended a recent birthday party at the caretakers home, she was the one to provide most of the care for the two children. However, the court was entitled to weigh this evidence against other evidence and testimony that the caretakers in this case were the primary attachments for these children, and had been so for most of their young lives.

The mother further relies on In re Brandon C. (1999) 71 Cal.App.4th 1530 (Brandon). In Brandon, the court affirmed an order for guardianship, finding that there was substantial evidence to support the juvenile courts findings that the mother had a relationship with her two boys that provided benefit such that termination of parental rights was not warranted. In that case there was evidence that the mother had visited the boys once a week, and at times twice a week, for the entire three years of the dependency, that they looked forward to the visits, and that they called their mother  Mommy.  (Id. at pp. 1533, 1536.) The grandmother, who was the relative caretaker and monitored the visits, thought the visits should continue and believed that it would not be in the boys best interests to terminate the relationship with their mother. There was evidence that there was a close bond between the mother and the children, and that continued contact would be beneficial, and no evidence was presented to support a contrary view. (Id. at p. 1537.)

Brandonis distinguishable, first because of its procedural posture. In Brandon, the juvenile court had applied the exception in section 366.26, subdivision (c)(1)(A), and the task of the Court of Appeal was to determine whether substantial evidence support this finding. Here, we apply the substantial evidence standard to the juvenile courts decision not to apply the exception. Second, the factual differences are striking. The mothers visits in Brandonextended over three years. The children recognized and acknowledged her as their mother, the relative caretaker testified that it would be in their best interests to continue the relationship, and there was no contrary evidence present. In our case, the mothers visits with the children have been of short duration. Unlike Brandon, the children did not experience separation anxiety when the visits ended. Although there is evidence that the mother had a bond with her older child, there was testimony that the childrens interest in the stability and permanency of their adoptive home outweighed any benefit from continued visits. Thus in our case substantial evidence supports the courts finding that the exception in section 366.26, subdivision (c)(1)(A) does not apply.

The mother argues that studies show that a child is capable of multiple attachment relationships and that a relationship should not have to be primary in the sense of day-to-day care to create an exception to adoption. The mother urges that we apply the reciprocal connectedness theory described in these studies rather than the one-dimensional attachment theory discussed in Autumn H. and other cases. We must, however, follow the law as set forth in the dependency statutes and interpreted by the courts. Further, we note that adoption by the caretaker in this case would not necessarily deny the mother a relationship with the children. The caretaker, who had been a friend and support person for the mother, had expressed a willingness to consider allowing the children to maintain relationships with their biological families.

Under the applicable standards of review, we find that the court did not abuse its discretion in this case in weighing the evidence bearing on the beneficial exception to section 366.26, and that substantial evidence supports the courts decision to terminate parental rights.

DISPOSITION

The judgment terminating parental rights is affirmed.

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Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

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MIHARA, J.

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MCADAMS, J.

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[1] All further unspecified statutory references are to the Welfare & Institutions Code.