In re A.A.

Filed 11/19/08 In re A.A. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Appellant P.A., the mother of minors A.A. and N.B., appeals from an order of the juvenile court terminating her parental rights as to her two children and freeing them for adoption. She contends that the San Mateo County Human Services Agency (Agency) failed to provide adequate visitation in accordance with the courts order, which deprived her of the ability to demonstrate that she had a continuing beneficial relationship with the children within the meaning of Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i)[1] such that her parental rights should not have been terminated. We conclude P.A.s contentions are without merit, and affirm accordingly.

I. Background

On November 25, 2006, the Agency received a referral that P.A. and her newborn son, N.B., tested positive for amphetamines. The Agency responded immediately and, among other things, interviewed P.A. and N.B.s paternal grandparents, Mr. and Mrs. B. From them, a social worker learned that P.A. and A.A., P.A.s three‑year‑old daughter fathered by a man other than N.B.s father, had been living with Mr. and Mrs. B. since A.A. was five months old. The B.s were very supportive of P.A., and were willing to help care for the two children, but they were concerned that she was using drugs. They said that on many occasions P.A. had left A.A. with them without making prior arrangements and without telling them when she would return. Further interviews in early December revealed that P.A. had driven with N.B. in the B.s family car despite not having a drivers license and without permission; had again left A.A. with the B.s without making any arrangements for her care; and had left N.B. at a friends house at midnight one evening and failed to pick him up when she said she would. This led the social worker to refer P.A. for a random drug test, but P.A. did not appear for the test, nor did she return the social workers phone calls or contact the B.s.

On December 6, 2006, the Agency obtained protective custody warrants for A.A. and N.B., and the children were taken into protective custody and subsequently placed with the B.s.

On December 8, 2006, the Agency filed section 300 petitions on behalf of both children, alleging that P.A. failed to protect them pursuant to section 300, subdivision (b). As supporting facts, the Agency summarized the history set forth above and also alleged that the childrens fathers were both incarcerated and were unable to provide for their care.[2]

At a detention hearing on December 11, 2007, A.A. and N.B. were formally detained and the matter was set for a jurisdictional/dispositional hearing on January 3, 2007. The court ordered visitation between P.A. and her children under the Agencys supervision.

In a jurisdictional/dispositional report filed on January 2, 2007, the Agency noted that P.A. had participated in supervised visitation with her children, with the social worker having observed a visit during which P.A. fed N.B. while A.A. played by herself. The report explained, however, that while the Agency had provided P.A. with services to help her deal with her substance abuse issues, she had not taken advantage of the services, instead failing to show up for two out of two random drug tests and missing four out of seven days of an outpatient substance abuse program. P.A. had also admitted having used methamphetamines on December 22, 2006. The report further observed that although P.A. indicated she would cooperate with the Agency and appeared to be determined to reunify with her children, she failed to follow through with her actions. The report then recommended that the children remain in the care of the B.s, and that P.A. complete a substance abuse program and be offered family reunification services. The attached case plan called for reunification by July 4, 2007.

The jurisdictional/dispositional hearing was continued to January 30, 2007, and in a supplemental report filed on January 26, 2007, the Agency informed the court that P.A. had not been participating in her drug treatment program, random drug testing, or visitation with her children because she had been arrested for driving with a suspended license; possession, transportation, and selling of marijuana and methamphetamines; and possession of stolen property. P.A. was sentenced to 120 days in jail, with release scheduled for April 17, 2007. According to the report, P.A. admitted she had been using methamphetamines since the Agencys intervention, but claimed that she planned to participate in a substance abuse program, as well as counseling and parenting classes if offered at the jail. P.A. expressed a desire to be reunified with her children and was aware of the time frame in which she needed to demonstrate substantial progress. Although all parents were incarcerated, the case plan continued to call for reunification by July 2007.

On January 30, 2007, P.A. submitted to the courts jurisdiction on a waiver of rights and the matter was continued to February 20, 2007. Visitation continued to be supervised by the Agency.

On February 16, 2007, the Agency filed an addendum report noting that since the last court hearing, supervised visitation between P.A. and her children had occurred twice a week for one hour and had gone extremely well. During the visits, the social worker observed that P.A. had been very appropriate with the children by tending to the needs of the infant and spending quality time with A.A. The report also related information from Mrs. B. that the children were doing well, and the B.s would like to be their de facto parents. According to the report, P.A. supported the B.s request for de facto parent status, indicating that if she did not ultimately reunify with the children, she did not want them to be separated from each other or removed from the B.s care.

In terms of assessment/evaluation, the report said that Since the mothers incarceration, the mother has demonstrated through her actions that she can address the issues that have brought her to the Court and the Departments attention. The mother has enrolled in various programs in jail that will assist her in addressing her substance abuse issues, parenting, and gain education on domestic violence and credits toward her GED. The mother states that she has changed and reports that she will do whatever it takes to be reunified with her children. The undersigned believes that the mother has made a turn around and hopes that this progress continues. [] In the meantime, the undersigned believes that placement with the B.s is the best placement for the children at this time as that is where they have been for most of their lives. The case plan continued to call for reunification by July 2007.

On February 20, 2007, the court sustained the section 300 petition and declared the children dependents of the court. It also granted de facto parent status to the B.s, continued the children in their care, and granted P.A. visitation under their supervision. The matter was continued to April 3, 2007 for an interim review, with the six-month review set for August 21, 2007.

On March 29, 2007, the Agency filed an interim review report, noting that P.A. had been released earlier that month and was living with her father. It also observed that P.A. appeared committed to addressing her substance abuse problems and reunifying with her children, although the proof would be in her ability to remain drug free and care for her children. The report recommended that the children be continued as dependents, a recommendation the court followed at the April 3, 2007 interim review.

In a August 15, 2007 status report filed for the six-month review, the Agency reported that on July 14, 2007, P.A. was arrested again, this time on charges of second degree burglary, possession of stolen property, possession of a controlled substance, possession of burglary tools, being under the influence of a controlled substance, and conspiracy. At the time of the report, P.A. was incarcerated at the Womens Correctional Center in Redwood City, and her probation officer informed the Agency that he was recommending a prison sentence. The report also noted that it was unclear how P.A. had been spending her time prior to her arrest because she was unemployed, was not enrolled in a drug treatment program, and maintained limited communication with the social worker.

With respect to visitation, the report noted that prior to her most recent incarceration, P.A. visited with her children once a week for an hour. And while P.A. appeared appropriate during the visits, she appeared to have trouble dividing her attention between N.B. and A.A. It appeared that Ms. A. had trouble reading cues A.A. gave around wanting and needing attention. It appeared Ms. A. was very absorbed by N.B. at every visit. Ms. A. never approached the undersigned about increasing the time or frequency of visits with her children. Ms. A. appeared quite content with visiting her children once a week for an hour.

In terms of the prognosis of possibly returning the children to their mothers care, the report opined that there continued to be substantial risk to the children if they were returned to P.A.: Ms. A. is incarcerated with a pending prison sentence and has not addressed the issues that have brought her to the attention of the Agency and has not engaged in services. Additionally, it appears that Ms. A. continues to abuse drugs. As a result, the Agency recommended the termination of reunification services. The report further noted that the concurrent plan for A.A. and N.B. was adoption by the B.s, who remained committed to that plan should the parents fail to reunify with the children.

Shortly before the August 21, 2007 review hearing, the Agency filed an addendum to the six-month review report, again recommending that reunification services be terminated. The Agency also recommended visitation be terminated on the ground it would be detrimental to the emotional well being of the children. At the August 21, 2007 six month review, the matter was continued to October 2, 2007 for a contested hearing.

On September 27, 2007, the Agency filed another addendum to the six-month review report. In terms of assessment/evaluation, the social worker summarized: At this time, Ms. A. has a pending prison sentence. Ms. A. has not acknowledged she has a problem with drug use as Ms. A. has been found to use drugs upon her arrests. Ms. A. has been using drugs now for all of her sons life, at his birth and throughout the course of his development. N.B. is nine months old at the time of this writing. It also appears that Ms. A. has a history non-compliance [sic] with the Agency as well as trouble with the law. Upon consulting with the childrens caregiver, it is reported that Ms. A. contacted the children once or twice a month to speak with them on the phone and no other provisions were provided for the children. The undersigned received no additional requests by Ms. A. to see her children more often. It appears that Ms. A. was quite content leading her life while A.A. and N.B. were cared for by others as she appeared to have been doing prior to the agencys involvement with this case. By Ms. A.s lack of participation in services and pending prison sentence, Ms. A. has demonstrated that she can not [sic] provide a safe home for the children. [] Lastly, the undersigned is concerned for the childrens detriment if they were to continue to visit with Ms. A. The children are young; N.B. is an infant and A.A., an active four-year-old. N.B. has shown confusion about having to visit with his mother at the jail as he cries at the beginning of each visit, having to reacquaint himself with his mother and adjust to his surroundings. A.A. appears distressed about her mothers incarceration as she repeatedly asks her mother during visits why she is in jail. Further, the undersigned has observed that the children appear relieved at the end of visits as they are freed from having to be confined to the limited space and show great enthusiasm at returning to their caregiver that provides a place of security, consistency, familiarity, and comfort. [] Therefore, it is the Agencys recommendation that reunification services and visitation be terminated for Ms. A. at this time as N.B. was under the age of three years and A.A. was three years old at the time of removal from their mothers care. As well, there is concern for the childrens emotional detriment at this time if they are to continue visiting. The social worker also noted that she spoke with P.A.s probation officer, who indicated that P.A. was still awaiting disposition on her charges and that he was recommending a prison term.

Prior to the next review (which had been continued to October 22, 2007), the Agency reported that P.A. had been sentenced to two years in state prison, but the sentence was suspended and she was granted three years probation and ordered to serve one year in county jail. The jail term was subject to modification, at the discretion of the probation officer, to completion of a residential drug treatment program. Given the suspended sentence, the Agency reconsidered its prior recommendation that visitation be terminated, recommending instead that P.A. be afforded visits with the children provided she enrolled in a residential drug treatment program. The Agency remained firm, however, in its recommendation that reunification services to P.A. be terminated.

The Agency concluded with the following assessment: A year will be approaching since this case has been open with the Agency, A.A. and N.B. are becoming older and bonding with N.B.s grandparents whom have provided excellent day to day care for the children. The undersigned observes that N.B.s paternal grandparents, Mr. and Mrs. B., provide a warm, loving, and secure home for the children. It is the paternal grandparents that have tended to the childrens every day needs in the course of almost a year. It is the grandparents that the children seek comfort from and the grandparents that the children are able to depend. [sic] It is also important to note that A.A. was three years old and N.B. was clearly under the age of three at the time they were declared dependents of the court. The Agency and the undersigned assesses that is [sic] imperative to move forward and provide permanency and stability for the children as it is unfair for the children to continue to wait for their parents to provide for them, given the parents histories, there may be a great possibility that they may never be capable of doing so. The updated case plan called for adoption by April 21, 2008.

On October 22, 2007, the court terminated reunification services but allowed P.A. supervised visits. A section 366.26 selection and implementation hearing was set for February 7, 2008, and then subsequently continued to February 26, 2008.

In early December 2008, P.A. was transferred from county jail to Valley State Prison for Women in Chowchilla (Chowchilla) on a parole violation resulting from her involvement in a fight in the county jail.

On February 15, 2008, the Agency filed a section 366.26 report. After summarizing the history of the case, the report set forth an evaluation of the children. As to A.A.s mental and emotional status, the report expressed concern about how A.A. was managing emotionally, given that both her of biological parents were incarcerated. A.A.s therapist reported that during their sessions, A.A. appeared disorganized and had difficulty soothing herself. The report explained: [The therapist] reports that A.A. acts out many instances of anger, aggression, and sadness during free play in session with her. [The therapist] reports concern regarding A.A.s ability to cope with stressors from the parental figures in her life, but will continue to work with A.A. in treatment to address these matters. More recently, it is reported that A.A. prefers to act as though her mother does not exist. A.A. refuses to talk about her and at the mention of her mothers name, A.A. exhibits signs of disassociation, immediately recoils into herself, and tries to play with a nearby item or toy until the subject matter is changed. There continues to be concern about how A.A. may be managing at this time with the confusion of parental figures coming in and out of her life. As to N.B., the report noted that while he did not appear to suffer from any developmental delays, he exhibited attachment issues and stranger anxiety, interacting only with his grandmother or relatives with whom he is familiar. The report described the children as closely bonded with the B.s, who have cared for the children for most of their lives.

With respect to visitation, the report said this: When the mother, Ms. A. was incarcerated at the Womens Correctional Center in Redwood City, visits took place every other week. Since Ms. A.s transfer to Valley State Womens Prison in Chowchilla, California, visits have posed [sic] to be a challenge due to necessary clearances required by the prison, paperwork to be processed, and limited visitation times. . . . [] However, the Agency assesses that visits between the mother, Ms. A. and her children to be detrimental at this time. For A.A., she notably enjoyed the hour visiting with her mother when her mother was incarcerated in the Redwood City jail. In their more recent visits, A.A. began to get more irritable in shorter amounts of time than she normally would. For example, A.A. would stop engaging with her mother and would rather focus her attention on telling the social worker supervising the visit about her day. For N.B., during the time he was visiting with Ms. A. at the jail, he appeared to become easily upset by the transition of visiting. It took N.B. quite a bit of time adjusting to the setting that was the jail as well as having to take time to reacquaint himself with his mother during each visit. It has been observed that N.B. would cry inconsolably for a portion of the visit, reaching for A.A. the entire time Ms. A. held him, and then only to settle down with time. Additionally, it did not appear that he easily detached from his paternal grandmother, Ms. B. who transported him to the visits. The report also expressed concern about the distance to Chowchilla (three hours in each direction), and the impact the transportation time would have on children of such a young age (A.A. was then four years old and N.B. was one). The Agency opined that visits would not be in the childrens best interest given their young ages, the time and distance they would have to travel, and their need to continue to bond with the B.s. The report concluded: Both A.A. and N.B. could be relieved if they were given a clear message that they will have a permanent family through adoption and recommended that the court terminate parental rights, estimating that adoption could be finalized by August 26, 2008.

The selection and implementation hearing occurred on February 26, 2008, with Denicia Cormier, an intern with the Agency, testifying first. She explained that it was her responsibility to have monthly contact with the children and Mrs. B. As part of her job, she observed two or three of the bimonthly visits between P.A. and the children in October and November of 2007 when P.A. was still incarcerated at the Redwood City county jail. According to Ms. Cormier, P.A. was transferred to Chowchilla on December 1, 2007. She arranged one visit at Chowchilla to occur on February 21, 2008, but that visit was cancelled by Mrs. B. because the children were not feeling well. Ms. Cormier was of the opinion that it would be detrimental for the children to visit P.A. because they needed to bond with their caregivers.

Social worker Eve Bazo, Ms. Cormiers supervisor, also testified. Ms. Bazo supervised a number of visits between P.A. and the children that occurred prior to October 2007. She testified that while P.A. was in county jail, she spoke with P.A. about whether she desired visitation with her children while she was incarcerated at Chowchilla, and she was undecided about it.

Ms. Bazo also testified that during the days before the hearing, when P.A. was returned to the county jail pending the section 366.26 hearing, she attempted to set up a visit between P.A. and the children, but Mrs. B. did not think it was a good idea because the children were not well. Ms. Bazo was still of the opinion that visitation between P.A. and the children would be detrimental because the children needed to continue to bond with their caregivers and have the regularity and consistency in their life that the B.s provided for them.

P.A. also testified, confirming that she was transferred to Chowchilla in early December and expected to be released on August 20, 2008. Since her transfer, she had not had any visits with her children, although she claimed she sent them cards. When asked whether she desired to have visits with them while she was incarcerated at Chowchilla, she testified that she did not because of the conditions there, although she expressed a desire to visit with them under other circumstances. While she was in county jail, she visited with them twice a month and attempted to call them, although she was unable to make contact.

P.A. also testified that she was attempting to arrange a transfer to Live Oaks Prison near Sacramento so she would be closer to home. It was also her understanding that it was better for visitations and would be more comfortable than Chowchilla.

In closing arguments, counsel for the Agency urged the court to find the children adoptable and terminate parental rights, with visitation after adoption left to the B.s discretion.

Counsel for A.A. and N.B. was similarly in support of terminating parental rights and moving forward with adoption as in the best interest of the children. With respect to visitation, she noted that A.A.s therapist indicated it was stressful for A.A., and the evidence suggested it was likewise stressful for N.B. She conceded, however, that the problems might be due to the location of the visits. She noted that P.A. was scheduled to be released in August, which was also when the adoption was expected to be final. Accordingly, she urged that there should not be any visits until the adoption was finalized, and at that point, visits would then be at the discretion of the B.s.

Counsel for P.A. objected to the recommendation that visitation between P.A. and the children be terminated. She requested instead that visitation be permitted at the discretion of the B.s and with the assistance of the Agency because transportation presented some challenges for Mrs. B. She also argued that while there was evidence reflecting anxiety on A.A.s behalf over her mothers incarceration, the better solution would be to allow her to see her mother, rather than severing visitation. Ultimately, she urged the court not to terminate visitation for the interim period until the adoption was finalized and to order the Agency to assist in facilitating that visitation.

Finally, counsel for the B.s stated that the B.s supported the adoption, had consistently been supportive of visitation, and had no intention of altering their position post-adoption, provided P.A. continued to be appropriate.

At the conclusion of the hearing, the court found by clear and convincing evidence that the children would likely be adopted and terminated parental rights. The court did not terminate visitation with P.A. and the children pending adoption, however, instead ordering that any such visitation was left to the discretion of the B.s. The court then set the next hearing for August 26, 2008.

This timely appeal followed.

II. Discussion

At a selection and implementation hearing held pursuant to section 366.26, the court must select and implement a permanent plan for the dependent child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1416.) The express purpose of the section 366.26 hearing is to provide stable, permanent homes for these children. ( 366.26, subd. (b).) The court has available to it four specific alternatives in selecting the permanent plan: termination of parental rights and adoption, identification of adoption as the plan but without immediate termination of parental rights, guardianship, or long-term foster care. ( 366.26, subd. (b)(1)-(5); In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1090.) In cases where there is no probability of reunification between the parent and minor, adoption is the preferred permanent plan. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.) Before selecting adoption as the permanent plan, the court must find by clear and convincing evidence that the minor is adoptable. ( 366.26, subd. (c)(1).) Once that finding is made, a parent opposing termination of parental rights must demonstrate that termination would be detrimental to the minor under one of six enumerated exceptions set forth in section 366.26, subdivision (c)(1)(B)(i) through (vi).[3](In re Tabatha G., supra, at p. 1164.) Absent evidence termination is detrimental under one of the exceptions, the court shall terminate parental rights. (Ibid; 366.26, subd. (c)(1); see also In re Tabatha G., supra, 45 Cal.App.4th at p. 1164; In re Matthew C. (1993) 6 Cal.4th 386, 392.)

P.A. contends that the order terminating her parental rights was unsupported by substantial evidence because the Agencys failure to properly implement the courts visitation orders after her transfer to Chowchilla deprived her of the opportunity to demonstrate that one of the exceptions to termination applied, namely the continuing beneficial relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i). That exception requires the court to select an alternative other than termination of parental rights where [t]he parents or guardians have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship. As P.A. correctly notes, we review the juvenile courts order for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) That review demonstrates that P.A.s contention that the Agency failed to properly implement the courts visitation orders has no merit.

Following the Agencys intervention in December 2006, the court ordered visitation between P.A. and her children under the supervision of the Agency. These visits began but were temporarily halted following P.A.s January 3, 2007 arrest on drug charges. The visits later resumed and were described as having gone extremely well. Following P.A.s March release from county jail, supervision of visits was delegated to the B.s . However, in July 2007, P.A. was again incarcerated, and the Agency resumed responsibility of supervising the visits. P.A. does not claimnor could she claimthat the Agency at any point during this time frame failed to properly implement the courts visitation orders.[4] Nor is there any evidence in the record that P.A. ever requested and was denied more visitation with her children, instead being satisfied with one-hour weekly visits.

In December 2007, P.A. was transferred to Chowchilla following a fight in county jail. Despite this transfer, the Agency engaged in efforts to arrange visitation. This was no easy task, with visitation complicated by the clearance and paperwork required, the limited visiting hours, and the distance the children were required to travel to and from the B.s residence to the prison. Despite these obstacles, a visit was in fact arranged, although it was ultimately canceled because the children were sick, an outcome for which the Agency certainly bore no responsibility. And significantly, at the section 366.26 hearing, P.A. acknowledged that she did not want the children visiting her while she was incarcerated at Chowchilla. As further indication that the Agency continued to support visitation between P.A. and her children, the Agency attempted to arrange a visit during the time P.A. was temporarily returned to county jail pending the section 366.26 hearing. In light of the foregoing, there is no evidence in the record supporting P.A.s claim that the Agency effectively terminated visits due to her change of prisons and deprived her of the opportunity to bond with her children.[5]

Moreover, nothing in the record suggests that P.A. would have prevailed on the continuing beneficial relationship exception even if she had continued visiting with her children after her transfer to state prison. Under the exception, the parent must show regular visitation and contact with the minor and that the minor would benefit from continuing that relationship. In In re Autumn H., supra, 27 Cal.App.4th 567, the court interpreted the exception to mean a relationship that 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 parents rights are not terminated. (Id.at p.575.) The court further observed that we are to examine the exception on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the childs life spent in the parents custody, the positive or negative effect of interaction between parent and child, and the childs particular needs are some of the variables which logically affect a parent/child bond. (Id. at pp. 575-576.)

The evidence before us depicts a relationship between P.A. and her children that had become decidedly detrimental to the children even before P.A.s transfer to Chowchilla, a concern expressed by the social worker in the September 27, 2007 addendum to the six-month review report. The social worker noted that N.B., then nine months old, appeared confused by his visits with his mother, crying at the beginning of the visit and having to reacquaint himself with her each time. A.A. also appeared distressed by P.A.s incarceration, repeatedly asking P.A. why she was in jail. The social worker also noted that the children appeared relieved at the end of visits, enthusiastically returning to Mrs. B. Then, in a subsequent report dated February 15, 2008, the social worker described A.A. as disengaging with her mother during these visits, preferring instead to focus her attention on the social worker. These observations reflected the concerns of the Agency while P.A. was still incarcerated at the county jail and cannot be attributed to her transfer to Chowchilla. In other words, even before P.A. was transferred to Chowchilla, visitation was proving to be detrimental to the children. And after her transfer, the children faired even worse, with the Agency reporting that A.A. preferred to act as though P.A. did not exist, while N.B. had developed an extremely strong attachment to the B.s, to the exclusion of others.

Also very relevant to this discussion was the age of the children and the portion of time they had spent in P.A.s care. By the time P.A. was transferred to Chowchilla in December 2007, the Agency had been involved with the family for one year. That year constituted the entirety of N.B.s life, and he had never lived in the sole care of his mother. Similarly, A.A., who was over four years old, had spent all but five months of her life living with the B.s. The children were very attached to the B.s, and the B.s to them. Given this state of the relationship and the fact that a years worth of visitation failed to foster a significant, positive, emotional attachment between P.A. and her children (In re Autumn H., supra, 27 Cal.App.4th at p. 575), we see nothing suggesting that continued visitation would have brought this situation within the continuing beneficial relationship exception. Certainly it cannot be said that the quality of the relationship outweighed the stability and security A.A. and N.B. would receive from a permanent home with the B.s.

In urging us to reach a contrary conclusion, P.A. relies on two cases involving the continuing beneficial relationship exception. Neither is availing. In the first, In re David D. (1994) 28 Cal.App.4th 941 (David D.), the mother voluntarily placed her young sons in foster care due to the stress she was experiencing as she attempted to extract herself from a violent relationship. (Id. at p. 943.) The children were adjudged dependent children pursuant to section 300, subdivision (b), and a reunification plan was adopted. The mother visited with the children, and was complying with court orders and working towards reunification. (Id. at p. 944.) The social worker noted the likelihood that the children would return to the mothers physical custody. (Ibid.)

Over a year after the mother had given up the children, however, a weekend visit went awry, ultimately ending with a suicide attempt by the mother. (David D., supra, 28 Cal.App.4th at p. 945.) On the social workers recommendation, the court suspended overnight visits, and then suspended visitation altogether pending receipt of medical records regarding the mothers suicide attempt, hospitalization, and subsequent treatment. (Ibid.)

Months later, at the contested permanency plan hearing, the court found that returning the children to the mother would be detrimental to the children and terminated reunification services. (David D., supra, 28 Cal.App.4th at pp. 948-949.) It questioned, however, whether a statutory exception to adoption applied, namely whether the mother had maintained regular visitation and contact with the children and whether the children would benefit from a continued relationship with her pursuant to section 366.26, subdivision (c)(1)(B)(i). (Ibid.) At the subsequent section 366.26 hearing, the court found the children to be adoptable and terminated the mothers parental rights. (Id. at p. 951.)

On appeal, the court concluded that adequate reunification services had not been provided, taking great exception with the courts suspension of visitation following its order that the mother relinquish her medical records. (David D., supra, 28 Cal.App.4th at pp. 952-953.) As is pertinent here, the court concluded that the juvenile court depriv[ed] the mother of the opportunity to come within the exception to adoptive placement expressly permitted when a parent has maintained a regular visitation schedule, noting that the court had been presented with overwhelming evidence of the minors bond with their mother. (Id. at pp. 943, 955.) The court then reversed the order terminating the mothers parental rights and ordering the children placed for adoption, directing the juvenile court to provide reunification services with  as frequent as possible  visitation. (Id. at p. 956.)

P.A. claims that here, as in David D., the lack of visits eroded the parental bond and relationship, and contributed to the ultimate finding of termination of parental rights. Not so. While in David D., therecord contained overwhelming evidence of the childrens bond with their mother, such evidence was noticeably absent here. In fact, as detailed above, the evidence was to the contrary.

Further, in David D., the mothers refusal to provide the medical records that the juvenile court wrongfully ordered her to produce led to the suspension of visitation and ultimately the termination of reunification services and parental rights. Here, the Agency provided visitation consistent with the courts orders, but P.A. failed to reunify with her children on her own accord.

The second case on which P.A. relies, In re Brandon C. (1999) 71 Cal.App.4th 1530 (Brandon C.), is also distinguishable. There, the Department of Children and Family Services (DCFS) challenged a juvenile court order selecting guardianship instead of adoption as the permanent plan for the minor. The Court of Appeal affirmed, finding substantial evidence to support the order. (Id. at p. 1532.) The court explained: It is undisputed that mother visited the boys consistently for the entire lengthy period of this dependency case, to the extent permitted by the courts orders. The trial court obviously credited the testimony from both mother and grandmother that there was a close bond between mother and the boys, and that a continuation of contact would be beneficial to the children. DCFS did not present any evidence to the contrary. . . . Substantial evidence supports the trial courts conclusion that mother had maintained regular visitation and that the children would benefit from continuing the relationship. (Id. at p. 1537.) The court rejected DCFSs argument that the order was unsupported because the mother did not present evidence that during her weekly monitored visits with the children she regularly provided the children with comfort, nourishment or physical care.  (Ibid.)

According to P.A., her situation is similar to that in Brandon C. because she was likewise unable to provide her children with comfort, nourishment or physical care, but would have maintained visitation had the Agency implemented the court-ordered visitation schedule. She ignores, however, the evidence in Brandon C. showing that the boys had quality visits with their mother. As noted by the Court of Appeal, at the section 366.26 hearing, the paternal grandmother testified that the mother had been pretty regular in her visits with the boys over the years of the dependency case, the mother expressed a desire to visit with them more often, and the boys looked forward to their visits and had a good relationship with their mother. (Id. at p. 1536.) The mother also testified that other than when she was out of town, she had visited with her children every week for three years, the boys were happy and affectionate with her when she visited, and she had a close bond with them. (Id. at p. 1533.) No such evidence exists here.[6]

P.A. also takes exception with the Agencys opinion that terminating visits between her and the children was in the childrens best interest because they needed to bond with the B.s.[7] Noting that A.A. had lived with the B.s since she was five months old and N.B. since birth, she claims the Agency should have investigated whether they would sufficiently bond with the B.s if there was a concern that visiting with their mother would interfere with the bond between the children and the B.s. In fact, social worker Bazo testified that not only was continued visitation detrimental to the children because they needed to bond with the B.s but also because they needed the regularity and consistency in their lives that the B.s provided. These were legitimate concerns given the age of the children and the length of time they had been out of their mothers care.

Finally, P.A. argues that the court should have selected a permanent plan other than adoption. Absent extraordinary circumstances, adoption is the preferred plan. (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) No extraordinary circumstances were present here. Adoption was appropriate.

III. Disposition

The order terminating P.A.s parental rights and ordering A.A. and N.B. placed for adoption was supported by substantial evidence and is affirmed.

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Richman, J.

We concur:

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Kline, P.J.

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Haerle, J.

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[1] All statutory references are to the Welfare and Institutions Code.

[2] Neither father is a party to this appeal, and we therefore omit facts pertaining to them.

[3] Prior to January 1, 2008, the exceptions were set forth in section 366.26, subdivision (c)(1)(A) through (D).

[4] The court terminated reunification services on October 22, 2007, and set a section 366.26 hearing, at which time P.A. was advised that she was required to file a petition for an extraordinary writ pursuant to section 366.26, subdivision (l)(1)(A) in order to preserve the issue for appeal. Having failed to do so, P.A. has waived any challenge to whether she was provided adequate reunification services. Further, [t]he section 366.26, subdivision (c)(1)[(B)(i)] exception is not a mechanism for the parent to escape the consequences of having failed to reunify. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.)

[5] P.A. repeatedly blames the Agency for the lack of visits while she was at Chowchilla, but noticeably absent from her briefing is any acknowledgment that her inability to abide by the law and resulting incarceration were the reasons visits were difficult to arrange in the first place.

[6] P.A. also notes that in Brandon C., supra, 71 Cal.App.4th 1530, the court viewed the evidence in the light most favorable to mother. This is consistent with the rules of appellate review, which direct the court to review the evidence in the light most favorable to the respondent. (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.) As P.A. is the appellant here, she is afforded no such benefit.

[7] P.A. goes so far as to claim that because this opinion was set forth by a social worker who was unaware of the length of the relationship between the children and the B.s, the Agencys entire recommendation should have been disregarded. The fact that an intern at the Agency was unaware that A.A. had lived with the B.s since she was five months old hardly renders all opinions of the Agency unreliable.