Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. Nos. J190095, J190096
RIVERA, J.
Elissa R. (Mother) appeals after the juvenile court terminated her parental rights and freed her children R. W. and R. P. for adoption at a hearing pursuant to Welfare and Institutions Code section 366.26 (.26 hearing). She contends the juvenile court erred in allowing two witnesses to testify by telephone and by concluding that she had not established an exception to the statutory preference for adoption. We affirm.
All undesignated statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
We are familiar with this case through our review of Mother’s earlier petition for extraordinary relief under California Rules of Court, rule 8.452, asking us to set aside the juvenile court’s order setting the .26 hearing. (Elissa R. v. Superior Court (May 22, 2006, A113284) [nonpub.opn.] (Elissa I).) As we noted in our decision in Elissa I denying the petition on the merits: “Mother has two children, R. W. and R. P., who are the subjects of this dependency action. The Alameda County Social Services Agency (the agency) filed a petition pursuant to section 300 on July 2, 2004, alleging there was a substantial risk the children would suffer serious harm. According to the petition, police had been called by neighbors who had seen then two-year-old R. W. running down the street unattended on June 28, 2004. On the same date, Mother was arrested on drug-related charges, as she was under the influence of methamphetamines and drug-related paraphernalia was found in her home. R. P. was one month old at the time. The identity and whereabouts of the children’s fathers were unknown. The children were detained. According to the detention report, the family had a prior history with the agency, including a neglect referral in which the reporting party stated that numerous people went in and out of Mother’s home and smoked crystal methamphetamine there. [¶] The juvenile court found the allegations of the petition true and found the children were persons described by section 300, subdivisions (b) and (g). The children were placed in foster care.” (Id. at pp. 1-2.)
A report prepared for a January 2005 status review hearing noted that Mother had enrolled in parenting classes and a drug treatment program and visited her children regularly. However, she had missed three drugs tests from September to November, and she had tested positive for cocaine in December 2004. The juvenile court continued the dependency.
A June 2005 status review report indicated that although Mother’s skills as a parent were improving and she had made good progress in her substance abuse treatment program, the agency doubted her ability to provide a safe home for the children without constant oversight. The agency recommended that reunification services be terminated and a .26 hearing be scheduled with a permanent plan of adoption. The juvenile court continued R. W. and R. P. as dependent children, and granted de facto parent status to their foster parents.
As we stated in our earlier opinion, “[a] contested 12-month review hearing took place on August 11, 2005, and September 16, 2005. The children’s social worker reported that Mother had unsupervised visits with the children every other week. At the social worker’s request, the Oakland Police Department had conducted a health and safety check on Mother’s home on August 8, 2005. The officer who made the check told the social worker that she had seen four people at the home, and that one of them had a prior conviction for manslaughter [fn. omitted]. The worker expressed concern about Mother’s ability to maintain her long-term sobriety, in light of her associations, the poor judgments she had made, and lack of a solid support structure in Mother’s life. She was also concerned that Mother had been involved in abusive relationships, but had not enrolled in classes related to domestic violence; that Mother had not participated in Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) groups [fn. omitted]; that Mother’s attendance at her groups at Highland had been ‘hit or miss’; that R. W. had exhibited sexualized behavior; and that R. W. had reported that other family members had been present at unsupervised visits. [¶] The juvenile court found Mother had made substantial progress in resolving the problems that led to the removal. Although return of the children continued to create a risk of detriment, the court concluded there was a substantial probability of return within the 18-month period, and ordered continuance of family reunification services. The court continued the case plan, and ordered Mother to attend AA or NA meetings consistently; to enroll in, attend, and complete domestic violence counseling; to participate in a bonding and caregiver competency study; and to clear up her outstanding warrants.” (Elissa I, supra, A113284 at pp. 3-4.)
A status review report prepared for the scheduled December 7, 2005, 18-month hearing recommended that reunification services be terminated and a .26 hearing be scheduled with a permanent plan of adoption. Although Mother was attentive during her visits with the children, had completed a parenting course, and had participated in therapy with R. W., she had trouble handling the children. She had two visits with them a week, one supervised and one unsupervised. However, she had missed her visits after November 10, 2005, because she had to go to Nevada to resolve an arrest warrant. The report noted that Mother had not shown up for therapy since mid-October 2005, that she had missed sessions with her domestic violence group, that she had missed several drug tests since October 2005, and that she had been unable to provide an adequate urine sample on two other occasions. However, she was in good standing with her outpatient substance abuse program, and the counselor there indicated that Mother received drug tests through the program. The report concluded that the children would be at risk if returned to Mother, due to the early stage of her recovery and the potential for exposure to inappropriate caretakers, and noted that the children were doing well in their foster home and the foster parents were willing to adopt them.
Mother requested a contested hearing. The agency filed a memorandum on January 31, 2006, which concluded that Mother had been mostly noncompliant with drug testing and treatment during the reporting period, despite allowances for a hospitalization in late December 2005, and the death of her father in January 2006. She had not provided AA/NA sign-in sheets, had not participated in drug testing arranged by the agency since October 2005, had not attended her domestic violence program since October, and had attended only one individual counseling session in January 2006. Mother had visited the children five times during December 2005 and January 2006, before flying to Washington State for her father’s funeral. The report also concluded that Mother’s relationship with her children had not developed in a productive manner.
We explained in our earlier opinion that the case worker testified at the contested 18-month hearing that Mother had taken drug tests through her outpatient substance abuse program until November 2005, and the tests had all been negative. (Elissa I, supra, A113284 at pp. 7-8.) We also explained that Mother testified that she became ill in November 2005, and had two hospital stays in December, that she was away resolving outstanding warrants on two occasions in November 2005, and that she went to Washington State to attend her father’s funeral and did not return until three days before the February 2, 2006, hearing. Mother testified that on the two occasions she could not provide an adequate urine sample, she was in a hurry because she had to get to her Highland substance abuse program, and on at least one occasion, she was tested at Highland the same day. She also testified she had attended about four NA meetings since September 2005, the last one in mid-November, and that she had attended individual counseling twice since the last court date, and a domestic violence program once in January. (Id. at pp. 8-9.)
As we explained in our earlier decision, “[t]he juvenile court acknowledged the progress Mother had made in addressing her substance abuse. However, the court stated: ‘I can’t bring myself to reach the conclusion that returning these two children to [Mother] would not entail a substantial risk of detriment. I think it would. And I think the Agency has met its burden in showing that. . . . I am just not sufficiently confident that [Mother] has fully engaged herself with and embarked on the process of building the social and personal structure that she needs around her to successfully come into court and say: I’ve beaten it. Maybe I’m not recovered because no one says that, but I’m in recovery and I am in a stage of recovery which is so solid and so robust that I can safely care for and raise my children. [¶] I don’t think that we are at that stage.’ Accordingly, the court terminated family reunification services, found that return of the children to Mother’s home would create a substantial risk of detriment, found that a permanent plan of adoption was appropriate, and set a .26 hearing.” (Elissa I, supra, A113284 at p. 9.)
Mother petitioned for extraordinary relief under California Rules of Court, rule 8.452, and we denied the petition on the merits. (Elissa I., supra, A113284 at pp. 1, 10, 14.) Mother also appealed an order granting de facto parent status to the boys’ foster parents; we affirmed the trial court’s ruling. (In re R. P. (May 24, 2006, A111158) [nonpub. opn.].)
The notice of appeal had been filed only in the case relating to R. P. (In re R. P., supra, A111158 at pp. 1, 2.)
An interim report filed on May 25, 2006, recommended that Mother’s supervised visitation with the children be limited to once every three weeks. According to the report, Mother was having weekly supervised visits with the children. In April 2006, she and the social worker had agreed that Mother would visit the children for two hours every week, with an extra half hour added to visits in April, May, and June to make up for a missed visit. R. W. had not been brought to the last three visits in May 2006 because of very strong tantrums. One of the foster parents was concerned that he would not remain in the car during the drive. R. W.’s preschool teacher and childcare provider reported that R. W. was having behavioral problems, including increased defiance, and that his behavior had become worse after visits with his Mother had increased. His childcare provider reported that R. W. had said to Mother over the telephone, “I don’t want to talk to you, get away, I hate you.” His teacher reported that on the day of visits and the day afterward, R. W.’s behavior became worse, and after the visits, he was “easily out of control.” In the last month or so, R. W. did not listen, moved around a lot, did not nap, tried to bite his shoes, hit the monkey bars outside, and did not follow rules. R. W.’s therapist, Inge Dean, reported: “ ‘[R. W.] has been in a state I have never seen before. He told me that there are two [R. W.s]. All these visits and contact is too confusing to him. Mother is buying presents for him. It’s taking a toll across the board. He is acting out and he is beside himself. He is trying to figure all of this out with Mom. He has a structured life with the foster parents and with Mom, it’s a free for all. [R. W.] says, “Mom doesn’t make me do this.” [R. W.] is throwing things around my office, he laughs, runs around the room and hides. He breaks things. The change within three weeks was remarkable. It was a very pronounced change. He is suffering with all of this. It is very disruptive for him.’ ” One of the foster parents also reported that as visits with Mother approached, R. W. showed increased anxiety, sleeplessness, nightmares, acting out, not listening, and tantrums. However, the social worker who supervised the visits reported that the visits had generally gone well, that Mother’s ability to provide limits and contain the children’s behavior had improved, and that the social worker had only observed two tantrums in the past five months. On both of those occasions R. W. was able to return to the visit within minutes.
R. P. was also having problems. He had started to pound his head with his hands; and after a visit with Mother in April, he was given time-outs four times for hitting and not listening, behavior that was unusual for him.
On May 31, 2006, the juvenile court ordered visits reduced to one and a half hours every other week, and the child welfare worker was given discretion to reduce the visits. The court denied Mother’s request for unsupervised visits.
The report filed on June 7, 2006, for the .26 hearing recommended adoption as the permanent plan for the children. The foster parents were committed to adopting the children, showed good parenting skills, and addressed the children’s needs. According to the report, Denise Smernes, a social worker, had reported that mother had maintained consistent weekly visitation with the children throughout the year, but that the children, particularly R. W., were showing increasing signs of emotional distress. In particular, R. W. had been having tantrums, exhibiting defiant behavior, and having difficulty in making transitions after visits with Mother. His therapist reported that he experienced stress and confusion after visits with Mother, and that his behavioral problems had intensified since visitation with Mother had been increased. During therapy, he had become anxious and was not responding to limits. R. P.’s childcare provider reported that R. P. was hitting himself on his head and was beginning to hit others, and Smernes reported that R. P. might be having difficulty with visits with Mother.
Mother moved for a change in the court’s orders scheduling the .26 hearing and ordering the children to live outside her home. (§ 388.) She sought to have the children placed with her. She alleged that there had been changes in circumstances, including the children’s escalating emotional problems while living away from her; her attendance at NA meetings; her regular visits and strong parent-child bond with the children; and the suitable housing she had obtained.
At the August 17, 2007, hearing on her motion, Mother testified that she was living in a two-bedroom unit in a duplex, that it was in a suitable condition for the children to live in, that she was working approximately 24 hours a week, and that she had been continuously employed for about six months. She had been visiting with the boys every two weeks for an hour and a half, and had unsuccessfully requested additional visits. She had missed one visit due to car problems. She testified that the visits went well, and that the boys seemed to enjoy them. R. W. was happy at the visits, and had asked her when he could see her next, when he could come to her house, and whether R. P. would also have a bed at her house. Recently, R. W. had been more relaxed at visits, and had not been having temper tantrums. Mother thought that R. W.’s behavioral problems were a result of visiting with her less than he should and a sense of being abandoned. She said R. P. was always glad to see her and knew she was his mother, but that her bond with him was different because he was taken from her when he was one month old. She testified that she had been sober, and that she had not used illegal drugs since December 2004. She was no longer in contact with friends who had been a negative influence, and had recently changed her telephone number so that some of her old friends would not be able to call her. She was spending time instead with people who were supportive. She had successfully completed a substance abuse program at Highland Hospital. However, she had not attended any NA meetings since June. She had not been to a domestic violence class “for a while,” although she had been to one the previous month. She testified that she had missed many telephone calls to her children over the last few months; she felt uncomfortable calling the foster parents’ home because she felt that one of the foster parents was unfriendly to her as a result of her efforts to regain her children. However, she and the foster parents had recently had a conversation, and their relationship had improved.
Steven Anderson, a child welfare worker who had made a home visit to the foster parents, testified that the children appeared to be well-adjusted, and were bonded to and affectionate with the foster parents.
The children’s attorney told the juvenile court that he had observed a visit between Mother and the two children. Mother helped the children with toys, made age-appropriate decisions about which toys they could play with, handled a dispute over toys well, and read to R. P. and changed his diaper. The children obeyed her directions when she told them to stop playing a game that was too dangerous.
The juvenile court acknowledged that the case presented a “close call” in light of the “tremendous job” Mother had done “of getting her life together,” but denied Mother’s motion, concluding she had not met her burden of proof.
Although Mother filed a notice of appeal of this order, she has not raised any issues related to the denial of her motion, challenging instead the termination of her parental rights at the .26 hearing.
The court proceeded with the .26 hearing the following day. The parties stipulated to the admission of the testimony given at the previous day’s hearing on Mother’s motion. Mother’s counsel cross-examined Deepa Abraham, Ph.D., who had prepared a caregiver competence evaluation, an assessment of attachment behaviors between Mother and the children, a psychological assessment of Mother in October 2005, and an assessment of attachment behavior between the children and the foster parents in July 2006 regarding her reports. Abraham testified by telephone.
Abraham’s testimony was interrupted to allow Dean, R. W.’s therapist, to testify by telephone. Dean testified that she had seen signs of early trauma and neglect in R. W.; for instance, his behavior would change when she talked about living with Mother, and his play would focus on safety. In the past year, R. W. had become more secure, and had developed emotionally and developmentally. Dean saw R. W. the day after his visits with Mother. When R. W.’s visitation with Mother had increased earlier in the year, R. W. began having more trouble calming down and behaved in a frenetic manner, and would vacillate between being unable to calm himself and “just lying in a depressive state.” Dean believed R. W. was “emotionally overwhelmed” by the increased visitation. After visits with Mother were decreased, R. W.’s behavior settled down. Dean thought that it would be in R. W.’s best interest to be adopted, and that he needed the stability of a permanent plan soon. Dean had never met Mother, spoken with her, or seen her with R. W.
Abraham then testified again, in person this time. The court stated that she would begin her testimony again as if she had not testified at all, in part because of the difficulty of taking testimony over the telephone. Among other things, Abraham testified that when she had observed Mother with the children approximately a year previously, she was passive with the children and did not redirect their aggressive behavior, such as pushing and snatching toys. She believed that the children were doing well in their present placement, and that it would be in their best interest to continue their placement.
Mother testified that she had a strong parental bond with both children, and that the bond had increased in the past year. During visits, R. W. would ask when he could come and spend more time with her. Although he was sometimes “hyper” at the beginning of a visit, he typically settled down during the visit. She believed he felt insecure because of the visits she had missed when she had been sick in December 2005 and when her father had died in January 2006, and she thought his negative reactions to the visits were a result of not spending enough time with her. She also believed there was a strong parent-child bond between her and R. P., and that R. P. viewed her as his mother. Mother feared that the children would feel that she had abandoned them if she were no longer part of their life, and believed they would have the stability they needed if they continued to live with the foster parents as their guardians, while her parental rights remained intact.
Sarah Garlick, who had supervised visits between Mother and the children from November 2004 until July 2005, testified that Mother’s parenting skills had improved as the visits continued. Her behavior toward the children was appropriate most of the time, and R. W. appeared to love Mother and have a substantial emotional attachment with her. R. P. was still a baby at the time, but Garlick saw a substantial attachment between him and Mother. During the visits, R. W. was sometimes aggressive, and Garlick intervened at times to help Mother set limits.
Jessica Rojas, who had supervised visits between Mother and the boys from July to October 2005, testified that Mother had acted appropriately and lovingly toward the children during the visits. Mother would tell R. W. she missed him, and he would hug her, kiss her, and tell her he loved her. R. W. and R. P. appeared to love Mother. On a few occasions, R. W. would have a tantrum and tell her he did not like her or that he hated her, but he would eventually “come around and hug Mom.” On one visit, Mother could not console R. W., and one of the foster parents took him out and calmed him down, after which R. W. rejoined the visit. Rojas did not recall R. P. having any tantrums. Mother had some difficulty setting limits, but she improved in this area as time went on. Rojas testified that she had observed a “substantial positive, emotional attachment” between the children and Mother, and Mother acted in a loving and parental role with them. She had seen the children acting aggressively toward each other at the visits, including one incident in which R. W. grabbed R. P. around the neck.
Mary St. Clair, who had supervised visits from September to November 2004 and again from November 2005 until the time of the .26 hearing, testified that when she first supervised visits, Mother needed help with setting limits and containing the boys. A little more than a year later, when St. Clair again began supervising visits, Mother’s parenting skills had “definitely improved.” She was able to provide time-outs, and R. W. would follow her instructions. Her parenting style was appropriate, and she acted in a “loving and parental role” toward R. W. R. W. appeared to love Mother “for the most part,” although there were “transitional struggles during some of the visits.” For instance, at the beginning of one visit during December 2005, R. W. said that he hated Mother and refused to participate in the visit. One of the foster parents took him outside, and within five minutes, R. W. returned to the visit and was fine after that. He had a tantrum at another visit in January 2006. St. Clair had not seen any such incidents after that. On other occasions, R. W. would run into the room, say “Mommy,” hug her, kiss her, and sit in her lap to read a book. There seemed to be a strong parent/child bond between them, and their relationship had improved during the time St. Clair had been supervising visits. St. Clair likewise saw Mother and R. P. interacting in a loving manner. They would hug, he would sit on her lap, and they would smile and laugh together. Based on her observations, St. Clair believed R. W. had a beneficial relationship with Mother and that they were attached, and that R. P. also had a substantial positive emotional attachment with Mother. St. Clair also testified that the visits had improved from June 2006 to the time of the hearing.
The juvenile court terminated Mother’s parental rights and ordered a permanent plan of adoption.
II. DISCUSSION
A. Testimony by Telephone
1. Background
As we have explained, Dean testified by telephone, and Abraham did so initially, before beginning her testimony anew in person. At the end of the hearing on Mother’s motion for a change in the court’s previous order, her attorney asked to have Abraham “on telephone standby for the purpose of cross-examination in regard to her report.” At the beginning of the .26 hearing the following day, the deputy county counsel indicated that at the request of Mother’s attorney, he had spoken with Abraham, and that she was prepared to testify by telephone. He also indicated that Dean, one of the children’s therapists, would take time out of her vacation to testify by telephone. In discussing the order of testimony, Mother’s attorney said, “I have no problem with Ms. Dean testifying today. [The deputy county counsel] previously told me he was going to have her on phone standby. Her testimony, I have no problem with.”
During Dean’s testimony, Mother’s attorney made several objections. The judge explained that, because of the technology being used, the witness could not hear objections while she was speaking, and instructed counsel not to make objections while the witness was speaking, because the court reporter would then be unable to take down the proceedings. The court instructed counsel, “under these unusual circumstances,” to confine himself to making motions to strike after the witness had finished speaking. After this exchange, Mother’s counsel moved to strike one of Dean’s answers, and the request was denied. Later, after Mother’s counsel had made other objections, at least one of which cut off the witness’s testimony, the juvenile court reminded him that the court reporter could not take down the objection and the testimony simultaneously, and told counsel he would impose sanctions if counsel did not obey the court’s instructions. Mother’s counsel did not make any further objections or motions to strike Dean’s testimony.
After Dean had finished testifying, Mother’s counsel stated that Dean should have been present in court to testify, rather than testifying over the telephone, and that it was inappropriate to threaten him with sanctions for raising objections under the rules of evidence. In a discussion when the hearing resumed several days later, the court indicated that its order regarding objections to Dean’s testimony had been fashioned “ad hoc, if not ad lib, to accommodate the fact that we had a system for taking the testimony which was far from optimal and which, as I told you, did not allow the person testifying over the telephone to hear what was going on in the courtroom, and I’m not planning to use that method of taking testimony again. We are going to have to find something better.”
2. Analysis
Mother contends the juvenile court erred and denied her the right to confront the witnesses against her by allowing Dean and Abraham to testify by telephone. Although her attorney made no objection to the use of telephonic testimony until after it was completed, she contends she has not forfeited her right to appellate review because the juvenile court acted in excess of its jurisdiction.
Mother points out correctly that there is no statute or court rule authorizing telephone testimony in dependency proceedings. However, there is also no statute or court rule prohibiting such testimony. Evidence Code section 711 provides that a witness “can be heard only in the presence and subject to the examination of all parties to the action.” This provision does not necessarily exclude testimony by telephone, when all parties are in the courtroom and able to cross-examine the witness. Similarly, Welfare and Institutions Code section 355, subdivision (c)(1)(D) provides that a hearsay declarant is available for cross-examination if the declarant is “on telephone standby and can be present in court within a reasonable time of a request to examine the witness.” While this provision appears to contemplate the witness being physically present in court, it does not preclude a different arrangement if it becomes necessary.
This procedure has been used in other circumstances. Family Code section 3411 allows out-of-state witnesses to testify by telephone in child custody proceedings. Rule 43(a) of the Federal Rules of Civil Procedure (28 U.S.C.), authorizes the use at trial of testimony from another location “by contemporaneous transmission,” “. . . for good cause shown in compelling circumstances.” Indeed, in the context of a dependency proceeding, the court in In re Nada R. (2001) 89 Cal. App.4th 1166, 1176, reviewed a court’s decision not to allow telephonic testimony for abuse of discretion.
The advisory committee notes to the 1996 amendment to Federal Rule of Civil Procedure, rule 43 indicate that audio transmission, without a video feed, may be appropriate in certain circumstances. (Advisory Com. Notes to 1996 Amend., Fed. Rules Civ.Proc., rule 43, 28 U.S.C. (2007 supp.) p. 85.)
In light of the foregoing, while we would not encourage telephonic testimony, we do not agree with Mother’s contention that her right to have adverse witnesses physically present in court was of such constitutional significance that it could not be waived by her attorney’s acquiescence in the procedure. We conclude this issue is subject to the normal rule that a party may not complain on appeal of an error not urged below. (In re Riva M. (1991) 235 Cal. App.3d 403, 411-412.)
Mother also contends the witnesses did not make legally binding oaths. The record indicates that both Dean and Abraham were “duly sworn.”
Mother contends, however, that although her attorney could, and did, cross-examine Dean and Abraham, she was deprived of her Sixth Amendment right to counsel by the juvenile court’s threat of sanctions. We first note that Mother had no constitutional right to counsel at the .26 hearing. (See In re Angel W. (2001) 93 Cal. App.4th 1074, 1081; In re Andrew S. (1994) 27 Cal. App.4th 541, 548-549.) In any case, we would reject Mother’s contention. When the juvenile court instructed counsel not to talk over the witness, it stated, “I’ll listen to a motion to strike after a statement has been made and if it’s testimony that needs to be stricken, you have my word that I’ll strike it, but don’t put the court reporter in a situation where she can’t do her job.” Mother’s counsel thereafter objected to several questions and moved to strike others. The court sustained at least three objections made before Dean answered, and struck another answer after it was made. Mother does not identify any questions she was unable to object to or move to strike as a result of the ruling. In the circumstances, Mother was not deprived of the assistance of counsel.
In fact, Abraham began her testimony anew when she was physically present in court.
B. Termination of Parental Rights
Mother contends the juvenile court should not have terminated her parental rights because she had visited the children regularly and has a strong parental bond with them. Section 366.26, subdivision (c)(1), provides that a finding under section 366.21 or 366.22 that the court has continued to remove the child from the parent’s custody and has terminated reunification is a sufficient basis for termination of parental rights unless “(B) [t]he court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” The parent has the burden of proving this exception. (In re Jasmine D. (2000) 78 Cal. App.4th 1339, 1350.) Appellate courts have variously reviewed a juvenile court’s determination of whether a case falls within section 366.26, subdivision (c)(1)(A) for substantial evidence (see In re Autumn H. (1994) 27 Cal. App.4th 567, 575-577) and for abuse of discretion (In re Jasmine D., supra, 78 Cal. App.4th at p. 1351).
Interpreting this provision, the court in In re Autumn H., supra, 27 Cal. App.4th at pages 575-576, stated: “If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated. [¶] Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from parent to child. [¶] . . . The age of the child, the portion of the child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child’s particular needs are some of the variables which logically affect a parent/child bond.” Moreover, “[b]ecause a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D., supra, 78 Cal. App.4th at p. 1350.)
Similarly, the court in In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419, agreed with In re Autumn H. and concluded that “frequent and loving contact” between a parent and children is not sufficient to establish the benefit from a continuing relationship required by the statute if the parents have not occupied “a parental role in relation to [the children].” Mother contends the standard found in these cases is unjust and over broad. We see no reason to conclude the cases are inconsistent with the intent of the Legislature.
The juvenile court could reasonably decide that Mother had not met her burden under section 366.26, subdivision (c)(1)(A). The court acknowledged that the evidence showed there was a “loving, affectionate, and largely functional relationship” between Mother and the children. However, there was also evidence from which the court could reasonably conclude that Mother and the children did not have the sort of parental relationship that outweighed the need of the children for a stable, permanent home. (See In re Jasmine D., supra, 78 Cal. App.4th at p. 1348; see also In re Beatrice M., supra, 29 Cal. App.4th at pp. 1418-1819 [“frequent and loving contact” not sufficient to establish “ ‘benefit from a continuing relationship’ ”].) It is true that Mother had been visiting the children regularly. However, problems had developed that led the juvenile court to reduce the number of visits at the end of May 2006, and there was evidence that the behavior of the children, and particularly of R. W., improved after they began to see Mother less. Although Mother’s parenting skills had improved and the visits were going well, she was not having unsupervised visits with the children and was not tending to their day-to-day needs. R. W. was four years old at the time of the hearing, and had lived away from Mother since he was two years old. R. P. had lived in foster care since he was a month old, virtually his entire life. The juvenile court could conclude this was a situation in which Mother had “maintained a relationship that [was] beneficial to some degree but [did] not meet the [children’s] need for a parent” (In re Jasmine D., supra, 78 Cal. App.4th at p. 1350), and that this was not the sort of “extraordinary case” (ibid.) in which the preservation of a parent’s rights should prevail over the need of the children for a stable, permanent home.
Thus, whether we review the juvenile court’s determination for substantial evidence or for abuse of discretion, we uphold it.
III. DISPOSITION
The judgment is affirmed.
We concur: RUVOLO, P.J., REARDON, J.