Opinion
G058163
04-10-2020
In re K.K. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. C.K., Defendant and Appellant; Ch.K., Appellant.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant. Nicole Williams, under appointment by the Court of Appeal, for Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. Morse, Deputy County Counsel, for Plaintiff and Respondent. Melissa A. Chaitin, under appointment by the Court of Appeal, for the Minors.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. DP020558-002, DP026747-001) OPINION Appeal from an order of the Superior Court of Orange County, Jeremy D. Dolnick, Judge. Request for judicial notice and motion to take additional evidence. Request and motion denied. Order affirmed. Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant. Nicole Williams, under appointment by the Court of Appeal, for Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. Morse, Deputy County Counsel, for Plaintiff and Respondent. Melissa A. Chaitin, under appointment by the Court of Appeal, for the Minors.
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Pursuant to Welfare and Institutions Code section 366.26 (all further statutory references are to this code unless otherwise stated), the court terminated the parental rights of defendant and appellant C.K. (mother) and defendant Chr.K. (father; collectively parents) to their children, now 11-year-old K.K. and now 8-year-old C.K. (collectively children). Mother appeals, joined by appellant Ch.K., children's now 13-year-old sibling (collectively appellants), arguing the court erred when it refused to apply the sibling exception under section 366.26, subdivision (c)(1)(B)(v). We disagree.
Father is not a party to this appeal.
The record reflects if children were adopted, there would be no substantial interference with children's relationship with Ch.K. and the benefits of adoption outweigh the benefits of the relationship. Thus we affirm.
Plaintiff and respondent Orange County Social Services Agency (SSA) filed a request for judicial notice and motion to take additional evidence, asking that we consider an August 22, 2019 minute order in Ch.K.'s matter (In re Ch.K. (Super. Ct. Orange County, No. DP020557-002)) and a February 5, 2020 status review report in the matter before us. We deny the request and motion. We review the correctness of an order based on the evidence before the trial court when it made the decision, unless there are extraordinary circumstances justifying our consideration of facts occurring after the judgment. (In re Zeth S. (2003) 31 Cal.4th 396, 413.) Such is not the case here nor do the documents contain facts that affect our ultimate decision.
Children joined in the request and motion as well as SSA's respondent's brief.
FACTS AND PROCEDURAL HISTORY
This is the second time this matter has been before us. In the first appeal (In re K.K. (Sept. 17, 2018, G055932) [nonpub. opn.] (K.K.1), we affirmed the dependency court's order of legal guardianship rather than adoption based on the sibling exception. (Id. at p. 16.) The facts leading up to that order are sufficiently stated in K.K.1 and we incorporate them by reference. In this opinion we set out facts beginning after the January 2018 hearing, which was the basis for the appeal in K.K.1.
After the court ordered guardianship instead of adoption at the first section 366.26 hearing (First Hearing), K.K. became sad and angry and his "negative behaviors" increased. He was upset "because he was not adopted" and fearful of impermanency. He frequently asking his guardians to show him the letters of guardianship to assure he would not be removed from the home. He began "lashing out" at C.K. and his foster siblings, and exhibited "panic attack-like symptoms, in which he report[ed] he [could] not breathe and went pale." When the siblings visited, Ch.K. told K.K. it was possible the three of them might be returned to parents.
K.K.'s dosage of psychotropic medication was increased to deal with his reaction. K.K. also continued to attend his therapy to deal with the sexual abuse he claimed Ch.K. had perpetrated on him.
The guardians continued with sibling visitation with Ch.K. and committed to sibling visitation if they adopted children. Sibling visits generally went well. Some of the earlier problems with visitation were resolved when Ch.K.'s paternal grandmother and legal guardian (paternal grandmother) was no longer allowed to attend. Her conduct had upset both children and particularly K.K. Paternal grandmother was unhappy she was not authorized to participate in the sibling visits and SSA had to remind her that sibling visitation was the primary focus, not her relationship with children.
At the July 2018 review hearing, the court set another hearing under section 366.26 to reconsider a permanent plan of adoption for children. Ch.K. filed a section 388 petition requesting an updated bonding study and sought to delay the 366.26 hearing until the study was completed. The court denied the request and continuance but allowed Ch.K. to intervene and to have his lawyer participate in the upcoming 366.26 hearing.
A preadoption evaluation of children was conducted. Both children named each other, their guardians, and their foster siblings as their "psychological family." The evaluation stated K.K. was excited to be adopted and "ha[d] accepted his biological parents' absence from his life." He reported the nicest thing that had ever happened to him was when his guardians had tried to adopt him. C.K. was "emotionally balanced," had "secure attachments with [guardians] and [foster] siblings," and felt "emotionally secure in the current placement."
The status reports for the 366.26 hearing reported guardians still wanted to adopt children and were committed to maintaining children's relationship with Ch.K. When SSA discussed adoption with children, both stated they wanted to be adopted. Both called guardians their parents. K.K. wanted a "forever home" and C.K. said she felt "safe and loved" in guardians' home.
Children generally enjoyed visiting with Ch.K. but when visitation was increased, K.K's behavior regressed. Usually he wet the bed for three nights after visits. In addition, he was still coping with the alleged sexual abuse by Ch.K. and continued to fear he would be removed from guardians.
In April 2019 K.K.'s psychiatrist advised his visits with Ch.K. should stop due to the sexual abuse. Female guardian noted K.K. "freak[ed] out" when Ch.K. came near him.
In May, female guardian reported her husband, male guardian, had unexpectedly died. She remained committed to adopting children. SSA investigated and reported female guardian had the ability to adopt as a single parent. She was resilient, "financially stable," and had an "extensive support network." She put the needs of children ahead of her own. Social worker Yilin Chiou Tzeng (Tzeng) reported the children were "well-adjusted and comfortable," without "worries or concerns." He had no safety concerns. Children were adjusting to male guardian's death. Children were doing well in school and emotionally. Children consider[ed the female guardian] and their foster siblings as their family." Tzeng reiterated female guardian had "good social support."
K.K.'s therapist did not "see any significant distress" as a result of the male guardian's death. The family "seemed to have rallied and they support each other." The therapist described female guardian as "amazing."
Several witnesses testified at the hearing. Female guardian testified about K.K.'s behavior when he was first placed in her home, describing him as "quiet, timid, [with] a lot of anger issues." K.K. was diagnosed with Post Traumatic Stress Disorder and Attention Deficit Hyperactive Disorder. He participated in therapy and prescribed medication to treat these and other problems. He was improving with treatment and the placement. Female guardian described C.K. as happy and increasingly confident since her placement.
Female guardian testified she was committed to adopting children, who wanted to be adopted. They often asked if guardians would be their "forever family." They referred to guardians as mama and papa and wanted to have their last names changed to that of guardians. When guardianship was ordered at the First Hearing, K.K. feared guardians did not want him or would abandon him and he might be removed from their home. He often asked to see the guardianship order to calm his fears. Female guardian had to repeatedly tell K.K. she loved and would take care of him and that he was safe.
Female guardian was committed to maintaining a relationship between children and Ch.K., testifying "family is very important." She was willing to continue visitation due to the "very strong bond" between Ch.K. and children and agreed she would include Ch.K. in family outings. Whenever the children asked to see Ch.K. she facilitated it. She stated her relationship with paternal grandmother was better. They had put aside their conflicts for the benefit of the siblings. Female guardian was willing to sign a postadoption contract to provide for a minimum of 15 visits a year. She also stated she continues to facilitate contact between her four adopted children and their biological families, without a postadoption agreement.
As to current visits with Ch.K., although they are generally positive, K.K. was still afraid of Ch.K. and asked female guardian to go with him to the restroom. He also wet his bed for three nights after the visits.
Social worker Brittany Anascavage reiterated children wanted to stay with and be adopted by the female guardian. Female guardian remained committed to adoption as a single parent and was taking good care of children. Sibling visitation was arranged by female guardian and paternal grandmother without the need for SSA to be involved. Female guardian had always stated she wanted to continue the sibling relationship between children and both Ch.K. and paternal grandmother.
Paternal grandmother testified children were affectionate with Ch.K. and were "absolutely" bonded with him. Paternal grandmother stated her relationship with female guardian had significantly improved and she "love[d]" her. She agreed female guardian included Ch.K. in her family's events but she was reluctant to believe visitation would continue if children were adopted. Paternal grandmother would not sign a postadoption agreement providing for visitation once a month; she believed twice a month was a "compromise." She found children's desire to be adopted insignificant because she did not believe they could understand the "ramifications" of it.
Social worker Sylwia Kmita, female guardian's resource family approval worker, testified about the adoption home study conducted after the death of the male guardian. She reiterated that female guardian was still committed to adopting children. Kmita had no concerns about female guardian's ability to take care of children.
Social worker Tzeng testified there were no concerns with having children adopted by female guardian, even after the death of male guardian. Female guardian had a plan for childcare and a longterm financial plan. Children had no complaints about their care.
In a thoughtful, thorough, and well-reasoned decision the court ruled adoption was the "appropriate plan" for children. It found parents and Ch.K. had not met their burden to show termination of parental rights was detrimental, that is, that it would substantially interfere with the sibling relationship and the sibling relationship outweighed the benefits of adoption. The court ruled there would be no substantial interference with the sibling relationship if children were adopted.
The court found the claim female guardian would discontinue visitation after adoption was speculative and contrary to the testimony by female guardian. Instead, the court found, she would continue the sibling relationship. Female guardian had shown for the last 18 months she was committed to continuing the sibling relationship if children were adopted. She provided twice as many visits among the siblings as required.
In addition, the relationship between female guardian and paternal grandmother was good and no longer rancorous. Paternal grandmother testified she loved female guardian. Both women testified they would continue visitation after an adoption. Female guardian testified about the importance of the sibling relationship and had taken the lead in arranging the visits. Further, she had continued to maintain sibling visits with her other adopted children.
The court disagreed with the conclusion of the bonding study, which formed the basis of the decision in K.K.1. and on which parents and Ch.K. relied. It did not believe adoption would sever the sibling bond and result in little or no contact among the siblings. The court noted it was not limited by the original order providing for guardianship based on the sibling exception. Nor was it required to find the sibling exception "applie[d] in perpetuity," thereby permanently barring adoption.
As more fully set out in K.K.1, the bonding study stated children would suffer if contact with Ch.K. was discontinued. The psychologist who conducted the bonding study believed the siblings' strong, positive bond was largely based on their mutual experiences of trauma with their birth parents. (K.K.1, supra, G055932, at pp. 8-9.)
The court also ruled the existence or nonexistence of a postadoption contract was irrelevant and was not appropriately considered in a 366.26 hearing. Even if there were a postadoption contract, it might not exist or be enforceable at the time of adoption or thereafter for many reasons: the parties could change their minds, the court could modify the contract, or a party might seek to invalidate it.
Even though it found parents and Ch.K. had not met their burden to show substantial interference with the sibling relationship, the court proceeded to weigh the statutory factors to weigh whether children's best interest was better served by preserving the sibling relationship or providing for the permanency of adoption. (§ 366.26.) The court noted children and Ch.K. have not lived together for almost four years. Ch.K. in the role of children's anchor does not continue in perpetuity. Rather, children have bonded with the female guardian and foster siblings who satisfy their emotional needs. The negative common experiences the siblings experienced early in their lives are being replaced over time and the past experiences grow more distant. The court also considered the conduct of Ch.K. and paternal grandmother and how it had affected K.K. emotionally.
In addition, the court found it was in children's best interest to continue contact with Ch.K but found their bond and contact would continue after adoption.
DISCUSSION
1. General Principles
Where the court has terminated reunification services for parents, the court may order long-term foster care, legal guardianship, or adoption. (In re D.O. (2016) 247 Cal.App.4th 166, 173 (D.O.).) Adoption is the preferred permanent plan. "Under section 366.26, subdivision (c)(1)(B)(v), if the court finds the child will be adopted within a reasonable time, adoption must be ordered '"unless the court finds a compelling reason for determining that termination [of parental rights] would be detrimental to the child" because "[t]here would be substantial interference with a child's sibling relationship."'" (In re Isaiah S. (2016) 5 Cal.App.5th 428, 437 (Isaiah S.).)
The purpose of the sibling exception "is to preserve long-standing sibling relationships that serve as 'anchors for dependent children whose lives are in turmoil.'" (Isaiah S., supra, 5 Cal.App.5th at p. 437.) In analyzing whether the exception should apply, the court should take into account "the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(B)(v).)
The court should first decide "'whether terminating parental rights would substantially interfere with the sibling relationship.'" (D.O., supra, 247 Cal.App.4th at p. 173.) If so, then the court must "'weigh the child's best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption.'" (Id. at p. 174.) In making this decision, the court looks at the benefits and detriment to the child being considered for adoption, not the sibling. (In re Celine R. (2003) 31 Cal.4th 45, 54-55.)
As set out in the legislative history of section 366.26, subdivision (c)(1)(B)(v), "'"use of the new exception 'will likely be rare,'" meaning "that the child's relationship with his or her siblings would rarely be sufficiently strong to outweigh the benefits of adoption."'" (D.O., supra, 247 Cal.App.4th at p. 174.) The party opposing adoption has a heavy burden to show the sibling relationship outweighs the benefits of adoption. (Isaiah S., supra, 5 Cal.App.5th at p. 437.)
We review the trial court's decision to terminate parental rights without applying the sibling exception for abuse of discretion and the factual findings underlying the decision for substantial evidence. (Isaiah S., supra, 5 Cal.App.5th at pp. 437-438.) 2. The Court Did Not Err in Ordering Adoption.
As stated above, in determining whether the sibling exception should be applied, the court first considers whether terminating parental rights would substantially interfere with a sibling relationship. If the court finds substantial interference, it must then weigh the benefit of the sibling relationship against the benefit of adoption. Here, the court found terminating parental rights and freeing children for adoption would not substantially interfere with children's relationship with Ch.K. This finding was supported by substantial evidence.
The court found visitation between children and Ch.K. would continue after adoption. Visitation had been ongoing, and female guardian was committed to continuing the relationship if children were adopted. She understood the importance of the sibling relationship and had facilitated visits, even providing twice as many as required. She was willing to sign a postadoption contract to provide for at least 15 visits a year. She was on good terms with paternal grandmother, who had testified she loved female guardian and that she, too, was committed to continue visitation after adoption. The court noted female guardian had continued visitation between her adopted children and their siblings. This was substantial evidence the relationship would be maintained.
We reject appellants' argument the assurances of visitation were "unsupported" or that the evidence of continuing visitation was speculative. Rather, appellants' claim visitation would cease is what is speculative. There is no evidence to support it. Paternal grandmother's "unresolved fear" of discontinued visits is not sufficient to prove that fact. And in a sufficiency of the evidence review we do not consider contrary evidence even if it might support the opposite result. (In re James R. (2009) 176 Cal.App.4th 129, 135.) Paternal grandmother's fear she might not be allowed contact with children if they were adopted is irrelevant to the analysis. The issue is the sibling relationship.
The testimony of the female guardian and paternal grandmother that visitation would continue is sufficient to support the court's finding. (Citizens Business Bank v. Gevorgian (2013) 218 Cal.App.4th 602, 613 [testimony of single witness may be sufficient]; Evid. Code, § 411 [same].) The court found their testimony credible. We do not reweigh evidence or redetermine credibility. (In re R.T. (2017) 3 Cal.5th 622, 633.)
We are not persuaded by appellants' assertion the amicable relationship between female guardian and paternal grandmother was untested. Again, the court made a credibility determination and believed both women's testimony they would facilitate visitation.
Contrary to appellants' contention, a postadoption contract was not necessary to prove a continuing relationship. There are numerous cases where courts have refused to apply the sibling exception based on evidence contact would continue after adoption even absent a postadoption contract. (See, e.g., In re Valerie E. (2007) 152 Cal.App.4th 987, 1014 [prospective adoptive mother willing to consider future contact even though visits currently suspended based on safety concerns; In re Jacob S. (2002) 104 Cal.App.4th 1011, 1019 [prospective adoptive parents willing to continue contact]; In re Megan S. (2002) 104 Cal.App.4th 247, 254 [no substantial interference where 25 possible adoptive parents willing to allow postadoption visitation].)
The court could have ended its analysis with its finding there would be no substantial interference with the sibling relationship if children were adopted. Unless there is a finding of substantial interference, the court need not weigh the benefit of the sibling relationship against the benefit of adoption. Nevertheless, the court engaged in that weighing and found that adoption outweighed any benefit of the sibling relationship. This, too, is supported by substantial evidence.
Female guardian was committed to adopting children and SSA found she was taking good care of children. Both children wanted to be adopted. They identified female guardian and their foster siblings as their "psychological family," calling guardians their parents, and were "emotionally secure" with that family. K.K. wanted a "forever home."
When guardianship and not adoption was selected as the plan after the First Hearing, K.K. was sad, angry, and upset. He experienced panic attacks and lashed out at others. He was afraid he would be removed from guardians' home, constantly having to be reassured he would not be. His psychotropic medication had to be increased to help him cope with his unhappiness at not being adopted. He was excited and happy about the prospect of being adopted, as was C.K. This is substantial evidence children would benefit from adoption.
Appellants did not meet their burden to show why the benefit of the sibling relationship would outweigh adoption. They rely almost exclusively on the findings from the outdated bonding study and the decision at the First Hearing, arguing that, except for the death of male guardian, nothing had changed. But the record belies that claim.
As described above, and as the court found, children's emotional needs were being met by female guardian and the foster siblings. The common experiences children shared with Ch.K. years earlier had faded and were being replaced by new ones. Appellants discount this evidence, but it is significant. Appellants describe the policy underlying the sibling exception as the preservation of long-term sibling relationships. However, the complete policy continues on to describe the sibling relationships as "serv[ing] as 'anchors for dependent children whose lives are in turmoil.'" (Isaiah S., supra, 5 Cal.App.5th at p. 437.) Here, children's lives are not in turmoil, and their relationship with Ch.K. is no longer the anchor it once may have been. There was no need for another bonding study to substantiate this finding.
Appellants also claim there is "no authority to support a policy that significant common experiences fade during childhood and are replaced." But this is not a policy, it was a factual finding supported by evidence. The significance of earlier experiences can be diminished over time and replaced by the positive experiences children now have with female guardian and their foster siblings. No authority is necessary.
Not only that, but although K.K. enjoyed visiting with Ch.K., visits were also traumatic for him. His bedwetting increased after visits and he was still dealing with Ch.K.'s alleged sexual abuse. These facts do not support appellants' claim the sibling relationship outweighed adoption. Moreover, "[e]ven assuming [the children] would suffer detriment" if not allowed ongoing contact, "the [juvenile] court may still terminate parental rights if it determines [the children] would benefit more from adoption than [they] would gain by maintaining a relationship with [each other]." (In re Megan S., supra, 104 Cal.App.4th at p. 252.)
Appellants set out an extensive discussion of D.O., supra, 247 Cal.App.4th 166, on which the court relied in part in making its decision. But their attempt to distinguish that case fails. They claim the court misinterpreted D.O. to justify relying exclusively on the potential for sibling visits rather than analyzing the section 366.26, subdivision (c)(1)(B)(v) factors to make its findings. But the record reflects the court made findings on all of the factors, as detailed above.
In sum, there is substantial evidence to support the court's proper exercise of its discretion to free the children for adoption and not apply the sibling exception.
DISPOSITION
The order is affirmed. The request for judicial notice and motion to take additional evidence is denied.
THOMPSON, J. WE CONCUR: MOORE, ACTING P. J. GOETHALS, J.