Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. Nos. OJ05000564 and OJ05000565
Kline, P.J.
P.M. appeals from orders terminating her parental rights to two of her daughters. She contends the trial court violated her constitutional right to due process and acted contrary to the best interests of the children by prohibiting an expert witness from observing visits between her and the children and testifying about the bond between them. She further contends the trial court abused its discretion in failing to apply a statutory exception to termination of parental rights based on the bond between her and the children. We affirm.
STATEMENT OF THE CASE AND FACTS
Appellant is the mother of R.R., born October 1997, L.H., born October 2001, S.J., born April 2004, and H.M., born November 2005. Only L.H. and S.J. are subjects of this appeal.
Following a referral to Child Protective Services (CPS) on December 16, 2004, R.R., L.H. and S.J. were taken into protective custody on February 8, 2005. Appellant had had prior referrals to CPS in July and October 1998, July and September 1999, and May 2000, for general neglect, absence and abuse. The family was referred to informal family maintenance services in January 2005. Appellant failed to follow through with referrals for drug treatment and parenting classes, tested positive for cocaine, and admitted using crack cocaine in the home with her mother, an active user. At a meeting with appellant and family members, it was agreed the minors should be placed together with a relative. They were placed in the home of Felicia M., appellant’s second cousin. Appellant had been raised by Felicia M.’s mother for the first seven years of her life and Felicia M., 11 years appellant’s senior, had helped raise appellant.
On February 10, 2005, the Alameda County Social Services Agency (Agency) filed a petition alleging the minors came within the provisions of Welfare and Institutions Code section 300, subdivisions (b) and (g), based on appellant’s drug use and neglect of the children. The detention hearing on February 14 resulted in orders for placement of the children with Felicia M.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The section 300, subdivision (g) allegations were that the identify of L.H.’s father was unknown and S.J.’s alleged father was incarcerated and unable to arrange for her care.
At the jurisdictional hearing on March 7, appellant waived her rights to trial and submitted to the allegations of the petition, which was slightly amended. The court found the minors came within the provisions of section 300 as alleged. On or about the same date, the court granted a 30-day trial visit for R.R. with her father. The disposition report filed on March 25 reported that this placement was going well. L.H. was having some difficulties with R.R.’s move and was “acting out,” but the worker stated she was adjusting, and the siblings saw each other every day at daycare. Both L.H. and S.J. were receiving individual therapy once a week, at home, from Rouba Otaky, an early child mental health treatment specialist with Parental Stress Service, Inc. S.J. was “very bonded” with Felicia M. and Shondra M., her main caretakers. Appellant had visited with the children from March 24 to 27 at the home of Margie W., appellant’s maternal grandmother. Appellant indicated she was unable to maintain sobriety in her current environment and, at her request, was provided with referrals to several residential treatment programs.
At the disposition hearing on April 4, the children were declared dependents of the court, R.R. was placed with her father, and L.H. and S.J. were placed with Felicia M. Reunification services were ordered for appellant and the father of S.J.
In its August 17 report for the six-month status review hearing, the Agency recommended continuation of reunification services for appellant. It was reported that appellant was visiting the children at least once a week and the children appeared to be “very attached” to her. Appellant had enrolled in a residential treatment program but left before completion; she reported she was discouraged because she felt the staff were not serious about treatment and recovery. She had drug tested once, negative, and was willing to attend an outpatient program. The status report attached a June 24 letter from the minors’ therapist expressing concern that the number of people involved in L.H.’s life was making it difficult for her to form the attachment relationship with a primary caregiver that was considered necessary for the child’s development.
The therapist stated: “It can be overwhelming for a child of 3 to have so many family members relating to her in varying capacities. For young children, an important developmental task is to form an attachment with a primary caretaker. It is within this secure relationship that a child is free emotionally to focus on playing and exploring which will foster age appropriate cognitive and speech and language development. In the absence of an attachment relationship with a primary caregiver it is hard for children to proceed in a developmentally appropriate manner. In [L.H.]’s case because of the history of neglect and removal from her parent’s home, it is harder for her to trust adults and form at attachment to one adult. [L.H.]’s task of forming an attachment to a single caregiver becomes even more challenging when there are multiple caregivers involved. Additionally, she has visitations with a number of different family members which further confuse her and make her life unpredictable inhibiting her from forming a trusting relationship. It is important that [L.H.] have a structured and predictable life and the opportunity to form a trusting relationship with a primary caregiver. Without structure and consistency in her life, [L.H.] is at risk in the future for developing emotional and conduct problems and/or severe developmental delays.”
The court found reasonable services had been provided by the Agency and appellant had made “partial” progress, and continued reunification services for another six months.
The Agency’s January 25, 2006 report recommended termination of reunification services and a permanent plan of legal guardianship. Appellant had given birth in November 2005, to H.M., who had a positive toxicology screen for cocaine and was subsequently declared a dependent child. Appellant had enrolled in a residential treatment program on December 5, and H.M. was living there with her. Appellant’s visitation with the other children had been limited since her enrollment in the treatment program because of the requirements of that program. It was reported that L.H. and S.J. appeared to be “very attached” to both appellant and Felicia M., and that it had been “difficult” for the children when appellant left after a visit. L.H.’s therapist reported that the child had “demonstrated several anxiety symptoms as a result multiple separations and reunions regarding her relationships with multiple caregivers.” The Agency noted that appellant had enrolled in the treatment program for a year and the program would not permit her to have more than one child with her.
After a hearing on February 8, 2006, the court terminated reunification services, ordered a permanent plan of termination of parental rights and adoption, and set a section 366.26 hearing. Felicia M. had expressed willingness to adopt the children.
On April 21, the court granted Felicia M.’s request for de facto parent status.
The report filed June 1, 2006 for the section 366.26 hearing, prepared by child welfare worker Michelle Hernandez, recommended a plan of permanent guardianship with Felicia M. Hernandez reported that she, the primary adoptions caseworker Stephen Anderson, the former worker Marilyn Warrick, and the child welfare supervisor Svetlana Blythe had concluded guardianship would be in the best interests of the children because the children had regular contact with appellant and Felicia M. intended that contact to continue, the children identified appellant as their mother, and the close family relationship between appellant and Felicia M. meant the relationships would be ongoing. Hernandez stated that “the mother has an established role as the mother of these children within the context of this family setting and to alter that role (through termination of her rights) would create confusion for the children as well as interfere with the family dynamics that were established prior to the Juvenile Court intervention, and will remain beyond dismissal of this case.” Appellant was due to graduate soon from her residential program, had weekend pass privileges, and consistently visited with the children on the weekend. Both children continued in therapy and had been diagnosed with post-traumatic stress disorder.
On June 19, the matter was continued upon the parties’ stipulation, based on its complexity and the need for further study by the parties.
Hernandez’s next report, filed on September 21, 2006, recommended adoption by Felicia M. The children had many family members involved in their care: Felicia M. and her sister took care of their daily needs, the children had overnight visits with their maternal great grandmother every other weekend and visits with the maternal grandmother, appellant, their older sister, and S.J.’s father and his mother. As a result, the children’s therapist had raised a concern about Felicia M.’s ability to “establish herself as the primary parental figure and to set limits, when necessary, with other family members.” The therapist believed the children needed to have a “sense of ‘one home’ and ‘one caregiver’ for their own sense of security.” The Agency felt a plan of adoption would allow Felicia M. “to feel a deeper sense of her role as the primary parent.”
At a hearing on September 28, the court expressed concern over the Agency’s changes of position, stating “I’m not so sure that the Agency has convinced me that they understand or know what they’re doing. And I hate to say that, but that is the impression that I’m getting in this case, and it’s very concerning to the Court.” The court indicated it would need evidence about the minors’ attachments to their mother and was not sure Hernandez’s testimony on this point would be sufficient. The court noted that the involvement of many family members did not mean the children “don’t know who their parents are,” and the question was whether the children’s attachment to appellant was such that termination of parental rights would be detrimental. Appellant’s attorney asked for a bonding study to be undertaken. The Agency opposed this request. Counsel for the minors requested that instead of having a new person perform an evaluation, the children’s therapist should meet appellant and evaluate the children’s bond with her. The court expressed that it would be helpful for it to hear the children’s therapist’s observations and views about the children’s relationship with appellant, and continued the hearing.
Hernandez’s next report for the Agency, filed on October 19, 2006, continued to recommend adoption as the permanent plan. Hernandez had learned from Felicia M. and Shondra M. that appellant had not visited the children since June. According to their description, in her visits appellant played the role of playmate rather than parent: She was playful and engaged with the children but was not involved in providing meals or disciplining them, deferring to the caregivers on matters of discipline. Great-grandmother Margie W. told Hernandez that appellant had not visited for six weeks due to restrictions of her residential treatment program but had had an overnight visit on October 7. According to Margie W., during visits appellant cooked for and bathed the children, helped them pick up toys and put away their clothes, lay with them in the evening, and gave them “time outs” when needed. Hernandez concluded that when the children were in the presence of Felicia M., they and other family members related to Felicia M. as the parent, that in their own home the children related to Felicia M. as their parent, and that appellant played the role of parent only two times a month. Accordingly, the Agency felt it would not be detrimental to the children to terminate appellant’s parental rights.
Hernandez related that, according to Shondra M., the children did not ask whether appellant would be coming to visit and L.H. would ask infrequently, “is Mommy at Mommy’s house?” If the children talked about sharing something with their mother, they usually talked about sharing with their therapist first. Katherine Moore, the child welfare worker who had supervised two visits between appellant, H.M., L.H. and S.J. in the context of dependency proceedings for H.M., told Hernandez that she would not characterize appellant’s relationship with the older children as parental and that it “more closely resembled a sibling relationship.” According to Moore, appellant was more engaged with H.M. and interested in visiting with her cousin than with L.H. and S.J., and appellant’s affect when relating to the two older girls was “somewhat flat.”
At the section 366.26 hearing, which began on December 12, Hernandez testified consistently with her report regarding the observations and recommendations it contained. Hernandez herself had not observed any visitation between appellant and the children. She explained that the Agency changed its recommendation from guardianship to adoption after the adoptions caseworker, Anderson, had more contact with the family, Moore became involved with H.M.’s case, and Felicia expressed to Hernandez both “frustration around setting limits” with other family members and more willingness to pursue adoption rather than guardianship. Hernandez’s primary reason for changing the plan to adoption was to give Felicia M. a clearer role as parent.
Hernandez’s supervisor, Svetlana Blythe, testified that the Agency was recommending adoption because it became clear from the case workers and therapist’s letters that the children needed permanency and an “identified parental figure,” and there was not a parental relationship between them and appellant. Blythe testified that after the case came to “adoptions” because of the court-ordered plan, the worker became concerned about the dynamics between the appellant and the caregivers and “kind of lost sight” of the children’s need for a parental relationship. Based on the children’s need for permanency and appellant’s relationship with them, Blythe did not believe it would be detrimental to terminate parental rights.
Margie W. testified that L.H. and S.J. spent weekends at her house every two weeks and appellant also stayed for the weekend except when she was restricted by her treatment program. Margie W. stated that appellant had missed three visits over the course of the preceding year. During the visits, appellant took charge of the children, supervising their meals, baths and grooming, watching television and playing with them, and taking them for outings. The children called appellant “mommy.”
Appellant testified that when she visited the children at Felica M.’s house, she did not want to interfere with the rules by which Felicia operated her home, whereas at Margie W.’s house appellant had “total responsibility over my children. There, I do have my role as their mother. That is my duty there at her house. I am their mother.” At Felicia M.’s house, appellant would play with the children, help give them baths, comb their hair and get them dressed. She felt they loved her as a mother: They liked to be around her, came and cuddled with her, L.H. talked to her and S.J. did not want appellant out of her sight. Appellant testified that when Moore observed her visitation with the children in August 2006, the worker stayed for only about three to five minutes. Appellant said she did not feel she could really interact with the children during these visits because Shondra was present. Appellant visited the children at Felicia’s house only once after June 2006, because she was told by the case worker that Felicia needed to “build[] a foundation” with the children and appellant did not want to interfere. She continued her every-other-weekend visits with the children at Margie W.’s house.
Felicia M. testified that the children had been living in her home since December 2004, when S.J. was about eight months old and L.H. was two years old. Before this, she had provided food and clothes for the girls when they were with appellant and on numerous occasions when they came to her house for overnights. The girls called Felicia M. “Niecie.” L.H. mentioned appellant “from time to time” and talked about seeing H.M. with “mommy.” She sometimes seemed sad when she returned from the visits at Margie W.’s house and said she was sad about leaving her older sister, who would visit at the same time. L.H. also asked why H.M. lived with “mommy,” R.R. lived with her father, and she and S.J. lived with Felicia M. S.J. spoke of appellant less often and usually about H.M. being with appellant. When appellant came to visit the girls were happy to see her. Felicia M. testified that the confusion the girls were feeling resulted from appellant telling them that they were going to be coming home when in fact this was not the case. Felicia M. testified that she wanted to adopt the girls and was willing to permit appellant to have ongoing contact with them. She would accept a legal guardianship if the court felt this was in the children’s best interests.
Katherine Moore testified that she observed two visits at the Agency between appellant and the three children in August, coming in and out of the room and spending a total of about half an hour in the room for the first visit, less time for the second. Moore testified that there was “a lack of an emotional response that the mother had towards the older siblings. [¶] When she would see [H.M.], her eyes would light up and she would appear to be very excited about seeing [H.M.]. [¶] When she saw the other children, it was almost kind of like, oh, hi. There wasn’t the kind of emotional response of a parent that hasn’t seen their child in a while.” According to Moore, appellant did not engage much with the older girls and focused primarily on H.M. L.H. and S.J. reached out more to appellant than appellant did to the girls. Moore felt appellant did not play a parental role with the older girls, although she did with H.M., and that appellant did not appear bonded with the older girls as much as she was with H.M.
On March 7, 2007, the court rendered its decision terminating appellant’s parental rights to L.H. and S.J. The court found clear and convincing evidence that the minors were adoptable and were likely to be adopted by Felicia M., that a child-parent bond existed between the children and Felicia M., that there would be no detriment to the children if appellant’s parental rights were terminated, and that the children would be “greatly harmed if the court did not terminate parental rights and instead allowed them to simply languish under legal guardianship.”
DISCUSSION
“At a section 366.26 hearing the court is charged with determining a permanent plan of care for the child. If a child is likely to be adopted, adoption is the plan preferred by the Legislature. (In re Brian R. (1991) 2 Cal.App.4th 904, 924.)” (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) “If the court finds a child cannot be returned to her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination would be detrimental to the child under one of six specific exceptions. (§ 366.26, subd. (c)(1).)” (In re Mary G. (2007) 151 Cal.App.4th 184, 206-207.) The court must find “a compelling reason for determining that termination would be detrimental to the child” due to one of the enumerated exceptions. (§ 366.26, subd. (c)(1).)
The exception stated in section 366.26, subdivision (c)(1)(A), upon which appellant relies, applies “if ‘termination of parental rights would be detrimental to the child because “[t]he parents . . . have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship.” ’ (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) The parent bears the burden of proving the exception applies. (Ibid.)” (In re Mary G., supra, 151 Cal.App.4th at p. 207.)
In order to come within the section 366.26, subdivision (c)(1)(A) exception to the statutory preference for adoption, “[a] parent must show more than frequent and loving contact or pleasant visits. (In re Derek W., supra, 73 Cal.App.4th 823, 827.) ‘Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from the day-to-day interaction, companionship and shared experiences.’ (In re Autumn H. [(1994)] 27 Cal.App.4th [567,] 575.) The parent must show he or she occupies a parental role in the child’s life, resulting in a significant, positive, emotional attachment between child and parent. (In re Autumn H., at p. 575; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)” (In re Mary G., supra, 151 Cal.App.4th at p. 207, fn. omitted.)
At trial, attempting to make her case for application of the section 366.26, subdivision (c)(1)(A) exception, appellant attempted to have an expert witness observe her interaction with her children and testify about their bond. The question first arose at a hearing on September 28, 2006, when appellant’s attorney asked for a bonding study. Counsel for the Agency and for the minors opposed this request and the trial court concluded the hearing without ruling on it. At a hearing on October 31, 2006, before the section 366.26 hearing began, counsel for the minors related that a psychologist had met with appellant and the children during a visit the prior weekend without counsel having been informed. Appellant’s attorney indicated he had hired the psychologist and asked her to contact the children’s attorney and child welfare worker, and apologized to the children’s attorney. The court ordered no further meetings with the psychologist except on court order.
Early in the section 366.26 hearing, appellant’s attorney indicated he wished to present his expert witness to testify about observations of the relationship between appellant and the children, and requested permission to finish the observations. The court questioned whether this kind of evidence could be helpful, as the court itself could evaluate the evidence provided by family members and others already involved in the children’s lives. The court ruled that it would allow the expert to testify regarding observations that had already been made, but would not permit further observations of appellant and the children. Appellant’s attorney strongly objected to the latter part of this order and the court indicated he could present the matter for reconsideration. After further discussion on December 19, the court maintained its ruling.
On February 1, 2007, County counsel moved to prohibit appellant’s expert, Dr. Weiss, from testifying, arguing that her opinions would not be helpful to the court and her observation of the children had occurred without approval of the court, the Agency or the children’s attorney. Counsel for the children and for Felicia M. joined in the motion. After hearing appellant’s attorney’s argument, the court granted the motion under Evidence Code section 352, finding that the testimony of the expert, a stranger to the children who had observed them with appellant on one occasion and had been hired by appellant for purposes of litigation, would not be helpful to the court and would consume undue time. Taking exception to the ruling, appellant’s attorney pointed out that the court had prohibited further observations by the expert witness, and counsel for S.J.’s father argued it was unfair to permit Moore to testify about her brief observations of appellant’s relationship with the children without permitting testimony from a more qualified expert witness.
Appellant contends the juvenile court violated her constitutional right to due process by refusing to permit her expert to observe further visits between her and the children and testify about the bond between them. She argues none of the evidence presented meaningfully assessed the minors’ bond to her and the expert’s testimony was relevant as a critique of the Agency’s conclusion about that bond.
“Due process rights exist at the section 366.26 hearing. (In re Jeanette V. (1998) 68 Cal.App.4th 811, 816.) However, the right to present evidence is limited to presenting ‘relevant evidence of significant probative value to the issue before the court.’ (Id. at p. 817.)” (In re Carl R. (2005) 128 Cal.App.4th 1051, 1068.) Also, “[t]he state’s strong interest in prompt and efficient trials permits the nonarbitrary exclusion of evidence (see Washington v. Texas (1967) 388 U.S. 14, 22-25), such as when the presentation of the evidence will ‘necessitate undue consumption of time.’ (Evid. Code, § 352.)” (Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1146-1147.)
Respondent argues that appellant was attempting to introduce evidence amounting to a bonding study, an assessment by an expert of the existence and nature of the bond between appellant and the children. (See In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1168.) This characterization, which appellant does not challenge, seems apt.
“ ‘There is no requirement in statutory or case law that a court must secure a bonding study as a condition precedent to a termination order. . . . [A]lthough the preservation of a minor’s family ties is one of the goals of the dependency laws, it is of critical importance only at the point in the proceeding when the court removes a dependent child from parental custody (§ 202, subd. (a)). [Fn. omitted.] Family preservation ceases to be of overriding concern if a dependent child cannot be safely returned to parental custody and the juvenile court terminates reunification services. Then, the focus shifts from the parent’s interest in reunification to the child’s interest in permanency and stability. [Citation.]’ (In re Lorenzo C. [(1997)] 54 Cal.App.4th 1330, 1339-1340.)” (In re Richard C. (1998) 68 Cal.App.4th 1191, 1195.) By the time of the section 366.26 hearing, a parent’s “right to develop further evidence regarding her bond with the children [is] approaching the vanishing point.” (Ibid.)
In re Richard C. rejected arguments very similar to those raised by appellant here, in upholding the juvenile court’s denial of a motion for a bonding study made several months after the mother’s reunification services were terminated and the matter was set for a section 366.26 hearing. The court explained that “[b]onding studies after the termination of reunification services would frequently require delays in permanency planning. Similar requests to acquire additional evidence in support of a parent’s claim under section 366.26, subdivision (c)(1)(A) could be asserted in nearly every dependency proceeding where the parent has maintained some contact with the child. The Legislature did not contemplate such last-minute efforts to put off permanent placement. (In re Marilyn H. [(1993)] 5 Cal.4th [295,] 310 [‘lengthy and unnecessary delay in providing permanency for children’ is ‘the very evil the Legislature intended to correct’].) While it is not beyond the juvenile court’s discretion to order a bonding study late in the process under compelling circumstances, the denial of a belated request for such a study is fully consistent with the scheme of the dependency statutes, and with due process.” (In re Richard C., supra, 68 Cal.App.4th at p. 1197.)
As In re Richard C. explained, “[t]he kind of parent-child bond the court may rely on to avoid termination of parental rights under the exception provided in section 366.26, subdivision (c)(1)(A), does not arise in the short period between the termination of services and the section 366.26 hearing. ‘The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent. [¶] At the time the court makes its determination, the parent and child have been in the dependency process for 12 months or longer, during which time the nature and extent of the particular relationship should be apparent.’ (In re Autumn H.[, supra, ] 27 Cal.App.4th [at p.] 575; see also In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)” (In re Richard C., supra, 68 Cal.App.4th at pp. 1196-1197.)
In the present case, the subject of expert evaluation of the children’s bond with appellant arose more than eight months after reunification services were terminated, when it was brought to the court’s attention that an expert appellant’s attorney had hired to evaluate the parent-child relationship had met with appellant and the children during a visit without permission from the court or notice to the parties. Appellant’s request to complete the observations was made after the section 366.26 hearing was underway. The reporter’s transcripts reflect that the court weighed the question seriously before concluding that the critical information on the bonding issue would come from the Agency reports and testimony of family members and the views of an expert who had very limited contact with the children would not be of assistance to the court.
The determination not to permit further observations was neither an abuse of discretion nor a violation of due process. As in In re Richard C., supra, 68 Cal.App.4th 1191, permitting the observations appellant requested at that late stage in the proceedings would necessarily have caused significant delay in the proceedings, and no compelling circumstances necessitated such observations. Appellant urges there was a need for expert testimony because the Agency’s reports and witnesses contradicted each other and did not provide a clear picture of the parental bond. The Agency’s change in recommendation from legal guardianship to adoption was explained as resulting from both the collection of additional information about appellant’s relationship with the children and a change in focus from emphasis on appellant and her role in the extended family to emphasis on the children’s needs. The court considered the implications of the Agency’s change of position seriously, questioning at one point whether the Agency knew what it was doing in this case. Ultimately, the court concluded the Agency had changed its recommendation on the basis of the information it had available and the proper focus on the children’s needs. There is no basis for us to second guess that conclusion. As for the nature of the parental bond, in addition to the Agency’s reports, the court heard testimony from the relatives most intimately involved with the children and appellant about the nature of the relationship, the activities appellant engaged in with the children, and the children’s comments and conduct between visits with appellant. It was within the court’s discretion to conclude it did not need the assistance of expert testimony in these circumstances.
Appellant also argues that even if we uphold the court’s decision not to permit further observations by appellant’s expert, the court’s refusal to allow the expert to testify about her initial observations of appellant and the children requires reversal. We are not persuaded. The evidence from the people closest to appellant and the children, Felicia M. and Margie W., provided conflicting descriptions of appellant’s role with the children, Felicia M. describing it as more of a companion/playmate relationship and Margie W. describing it as more responsible and parental. The court concluded that appellant played the parental role when Felicia M. was not present, but did not do so when Felicia M. was present. Appellant’s own testimony supported this conclusion, albeit with appellant’s explanation that she chose to defer to Felicia M. in order to support her. No evidence was presented indicating the children would suffer detriment if appellant’s parental rights were terminated. Rather, the evidence suggested the children enjoyed appellant’s company but looked to Felicia M. to care for them and thought of Felicia M.’s home as their own.
Appellant additionally argues that limiting evidence relevant to the section 366.26, subdivision (c)(1) exception was not in the best interests of the children. Contrary to respondent’s characterization, appellant is not arguing for a separate “best interests” exception to the statutory preference for adoption, an exception she recognizes case law has found nonexistent. (In re Carl R., supra, 128 Cal.App.4th at p. 1070; In re Tabatha G., supra, 45 Cal.App.4th at pp. 1164-1165.) Rather, appellant urges that because the paramount purpose of a dependency action is to serve the child’s best interests, at any stage of the proceedings the court “should avail itself of all evidence which might bear on the child’s best interest.” (Guadalupe A. v. Superior Court (1991) 234 Cal.App.3d 100, 106.)
In In re Guadalupe A., at a 12-month review hearing, after the department of social services concluded its case, the trial court made a sua sponte motion under section 350, subdivision (c), on the ground that the department had not met its burden of proving return of the child to her mother would create a substantial risk of detriment to the child. Section 350, subdivision (c), then directed the court, at a hearing at which the department has the burden of proof, to “order whatever action the law requires of it” if, at the close of the department’s case, the court determines it has not met its burden. The court subsequently found the department had not met its burden of proof, noting that none of the witnesses who testified on the issue were experts (psychologists or psychiatrists), and ordered the child returned to her mother without permitting the child’s attorney to present proffered testimony from three psychiatrists addressing the question of detriment. This order was reversed, the appellate court reasoning that the literal application of the statute “was inconsistent with the mandate to fully protect the interests of the minor.” (In re Guadalupe A., supra, 234 Cal.App.3d at p. 107.)
Section 350, subdivision (c), has since been amended to direct the court to take this action after the close of evidence on behalf of the department and the child. (Stats. 1994, ch. 24, § 1, pp. 175-176.)
The statement in In re Guadalupe A., that a trial court should consider all evidence bearing on the best interests of the child and should not “restrict or prevent testimony on formalistic grounds” (id. at p. 106), does not necessarily require a court to consider “any and all evidence” relevant to the issue at hand. (See In re Eric H. (1997) 54 Cal.App.4th 955, 966 [“While an argument can be made that the court should consider any and all evidence in support of a dependency petition to assure that the best interests of the child are fostered, the overburdened juvenile justice system would fail under such a rule”].) In the present case, the best interests of the children were relevant at the section 366.26 hearing “only in the context of whether one of the exceptions in section 366.26, subdivision (c)(1)(A) through (E) applie[d].” (In re Carl R., supra, 128 Cal.App.4th at p. 1070.) The court had received evidence on the nature of the children’s bond with appellant from the Agency, from appellant, and from the relatives closely involved with the children. Its refusal to permit testimony from the expert hired by appellant’s attorney was not made on formalistic grounds but rather on the considered conclusion that the witness’s testimony—based on a single observation of appellant and the children—would not be helpful to the court.
Finally, appellant contends the juvenile court abused its discretion in failing to apply the section 366.26, subdivision (c)(1)(A) exception to termination of parental rights because she had regular contact with the children and they viewed her as their mother. According to appellant, the only “first hand” evidence of the parent child bond showed that termination of parental rights was “not an option”: She cites Margie W.’s testimony that the girls referred to appellant as “mommy” and loved appellant; and Felicia M.’s testimony that appellant played “somewhat of a parental role during visits” and L.H. sometimes asked where “mommy” was, seemed sad on returning to Felicia M.’s care after a visit, and from time to time indicated she looked forward to visits. As appellant portrays the situation, the Agency contradicted itself by first putting forward the reasons for guardianship, then changing course to opine no parental bond existed. Noting the court’s determination, in connection with appellant’s request to present expert testimony—that “an observation one time briefly by a stranger” could not be of assistance to the court—appellant argues that the opinion of social worker Moore, who observed appellant with the children for about half an hour and believed appellant did not play a parental role with them, could not defeat the evidence that a sufficient bond existed.
As we have said, the trial court was justified in concluding that the Agency’s change of position on the question of adoption was not inconsistent or contradictory but rather the result of changed opinion based of further collected information. Moore’s opinion was by no means the only indication that appellant’s role with the children was not “parental.” Clearly, there was evidence that the children called appellant “mommy” and thought of her as their mother; within the context of the extended family, this nomenclature and recognition of the relationship had never been altered. There was evidence that appellant loved her children, the children loved her, and the children enjoyed visiting with her. But this was not sufficient to demonstrate the type of bond required under section 366.26, subdivision (c)(1)(A). By the time of the section 366.26 hearing, the children had been living with Felicia M. for about two years, since S.J. was about eight months old and L.H. was about two years old. The evidence showed clearly that they thought of Felicia M.’s home as their own. While appellant visited regularly whenever she was not prevented from doing so by her treatment program, she did not have unsupervised visitation. She acted as the children’s primary caretaker only during visits at Margie W.’s house, which occurred at most twice a month. When Felicia M. was present, the girls looked to her for caretaking, not to appellant. In short, the court did not abuse its discretion in determining there was no “compelling reason” (§ 366.26, subd. (c)(1)(A)) to find termination would be detrimental to the children due to their bond with appellant. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
DISPOSITION
The judgment is affirmed.
We concur: Haerle, J., Richman, J.