Filed 9/17/18 In re K.K. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gassia Apkarian, Judge. Affirmed.

Melissa A. Chaitin, under appointment by the Court of Appeal, for Minors and Appellants K.K. and C.K.

Leon J. Page, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.

Nicole Williams, under appointment by the Court of Appeal, for Respondent Minor Ch.K.

Megan Turkat Schirn, under appointment by the Court of Appeal, for Respondent Father.

Rich Pfeiffer, under appoint by the Court of Appeal, for Respondent Mother.

* * *

Minors K.K. and C.K. appeal from the juvenile court’s decision to apply the sibling relationship exception to the termination of parental rights, and order legal guardianship as the minors’ permanent plan. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(v); all further statutory references are to the Welfare and Institutions Code unless otherwise stated.)

K.K. and C.K. argue there is insufficient evidence to support the court’s finding adoption would substantially interfere with their relationship to their elder brother, Ch.K., and that the juvenile court abused its discretion when it declined to order adoption as the permanent plan. County counsel agrees with K.K. and C.K. On the other hand, Ch.K. and the minors’ parents seek to affirm the court’s findings and order.

We conclude there is sufficient evidence to support the court’s factual findings under the substantial evidence standard of review, and the court’s application of the sibling relationship exception to the facts did not yield a result that is arbitrary or capricious. Thus, no abuse of discretion has been shown and we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

1. Background

On October 19, 2015, Orange County Social Services Agency (SSA) filed a petition pursuant to section 300 alleging the parents of then eight-year-old Ch.K., six-year-old K.K., and four-year-old C.K. had failed to protect them.[1] The petition accused the parents of general neglect and abuse of a sibling arising primarily from the parents’ unresolved substance abuse issues.

After the court removed the minors from their parents’ custody, the court placed Ch.K. with his paternal grandmother. K.K. and C.K. were initially sent to Orangewood Children and Family Center, but they were soon placed with a foster family. The minors stayed in their respective placements throughout these proceedings. The foster parents and paternal grandmother stated they were committed to providing permanency through adoption, if the parents failed to reunify.

In October, at the jurisdictional/dispositional hearing, the juvenile court sustained the allegations of the petition and declared the minors dependent children of the juvenile court. The court ordered reunification services for the parents, and supervised visitation.

In June, SSA filed a section 388 petition to terminate family reunification services for the parents and reduce their visitation. According to the petition, neither parent had made any progress with their reunification plan. Moreover, the parents had not visited the minors for six months, and their telephone contact had been sporadic. As the social worker stated, “father has been in and out of jail for the duration of this case,” and mother had been arrested for possession of a controlled substance in late May. SSA recommended the court terminate parental rights and schedule a section 366.26 selection and implementation hearing.

In August, the court conducted a combined contested six-month review and section 388 hearing. Following the hearing, the court terminated father’s reunification services, limited the parents’ educational rights as to all three minors, and continued the matter for a twelve-month review hearing for mother.

In November, SSA filed a second section 388 petition, requesting the minors’ visits with mother be suspended while she attended a residential treatment program in Woodland Hills, California. Mother had been participating in court-ordered services, and she hoped to have the minors returned to her custody. The 12-month review hearing was set in January 2017.

In January 2017, mother was released from her treatment program. After her release, mother inconsistently visited the minors. She failed to drug test as ordered, and she did not stay in contact with the social worker. The social worker expressed concern mother would engage in future drug use.

In May, at the combined 12- and 18-month review hearing, the court terminated mother’s reunification services and set the matter for a section 366.26 selection and implementation hearing. At this point, the court stated, “Adoption is appropriate and proposed as a permanent plan.” By then, Ch.K. was nearly 10 years old, K.K. was approximately seven, and C.K. was five years old.

In August, the court appointed new counsel for K.K. and C.K., and separate counsel for Ch.K. The following month, father’s attorney requested a parental bonding study, and a sibling bonding study. The court refused to order a parental bonding study due to the lack of contact between father and the minors.

K.K. and C.K.’s attorney objected to a sibling bonding study on grounds the siblings had not lived together for approximately two years, and the case had already been continued several times. However, the court found good cause to order a sibling bonding study, and appointed Dr. Michael Perrotti to conduct the study. The matter was continued to November.

Perrotti’s report was not completed by the November court date, and the court continued the selection and implementation hearing to December, and then January, over the objection of K.K. and C.K.’s attorney and county counsel. The details of the selection and implementation hearing are discussed below.

2. Sibling Contact

According to SSA reports, the foster parents initially facilitated six hours of weekly sibling visits, and overnight visits. However, in March 2016, after the second overnight visit at the paternal grandmother’s home, K.K. reported Ch.K. had put his finger in K.K.’s anus, and tried to touch K.K.’s penis. K.K. said this happened a couple of years earlier when the family lived in a motel. K.K. also reported Ch.K. had tried to pull down K.K.’s pants during the recent overnight visits, and he feared Ch.K. would try to touch him, again.

The paternal grandmother said she had no reason to believe K.K.’s allegations, and she had never seen Ch.K. exhibit any sexualized behavior. Ch.K. denied the allegations, and he told the social worker K.K. had a problem and needed help.

On May 15, after a monitored visit between K.K. and Ch.K. at their aunt’s home, K.K. again reported Ch.K. had sexually abused him. After this visit, K.K. smeared feces on the wall and wet his bed. He was also visibly “distraught and upset.” SSA suspended sibling visits pending an investigation, but the investigation was inconclusive.

K.K.’s therapist said K.K. had discussed and processed the molestation and relationship with his older brother Ch.K. K.K. said he felt they were getting along better. Nevertheless, K.K. worried Ch.K. would “touch his butt” when they were together, and he did not like being alone with Ch.K. He thought his brother ought to apologize and admit what he had done was wrong. K.K. said he feared strangers may touch him “like his brother touched him.” K.K. continued to have nightmares, but his acting out behaviors improved.

In June, K.K. and Ch.K. were referred for sexual abuse counseling. K.K.’s counselor recommended long-term therapy to address “the spectrum of trauma and concerns.” The therapist also expressed concerns about K.K.’s lack of impulse control. She recommended he be assessed for psychotropic medication and provided with an individualized education plan.

In October, SSA reported the minors had sibling visits every other weekend for four hours. All three minors were receiving counseling for past trauma, including the possibility of sexual abuse. However, Ch.K. seemed resistant to therapy and continued to deny doing anything wrong.

At a joint meeting in April 2017, the paternal grandmother expressed concern because K.K. and C.K.’s foster parents wanted to change visitation from a weekend day to during the week. The siblings had been visiting every other Sunday, and paternal grandmother monitored the visits.

The foster parents had previously adopted two other children through the Los Angeles County Department of Children and Family Services Agency. While the foster parents favored continued sibling visitation, they did not want to have a formalized agreement with paternal grandmother.

In September, paternal grandmother told the social worker she was frustrated with the sibling visits because K.K. and C.K.’s foster parents had cancelled a couple of times. The social worker pointed out that paternal grandmother had also cancelled some visits, but paternal grandmother still complained. Meanwhile, K.K. and C.K.’s foster parents complained to the social worker that paternal grandmother told K.K. and C.K. they were Hawaiian and should not be adopted by their Mexican foster parents. The foster parents said this upset K.K. and C.K.

3. Selection and Implementation Hearing

On January 8, 2018, the court started the 366.26 selection and implementation hearing. Mother’s counsel sought a continuance to file a section 388 modification petition, citing mother’s imminent release from custody, fledgling sobriety, and the intervention of relatives who had promised to provide her with a place to live, a car, and a job. The court denied the motion to continue after finding no good cause. The court also denied counsel’s oral section 388 petition.

a. Perrotti

Perrotti is a clinical and forensic neuropsychologist with over 25 years of experience. He has a peer reviewed chapter and handbook on methodology for bonding studies with emphasis on “kinesthetic, direct eye contact, making observations about the sensory contact and the nonverbal and verbal with the participants.”

In addition, Perrotti uses an interactive methodology called the Marschak Structured Interaction Methodology for young children and adolescents. Perrotti rates the types of bonds during a study, which can range from disorganized attachment, ambivalent attachment, and organized attachments with organized attachments providing the most security for the child.

Perrotti had conducted three or four sibling bonding studies in the previous year, and he had testified as an expert in sibling bonding, or attachment, in multiple state courts. Perrotti testified he used the “structured modality” method in this bonding study, and he conducted individual assessments of each minor.

Perrotti first met Ch.K., who was then in the fourth grade. Ch.K. described visits with minors as “boring,” but also good. Ch.K. denied inappropriately touching K.K., and he said he loved his little brother and sister. Ch.K. denied feelings of hopelessness, but he said he wanted his family back together.

Perrotti testified K.K. seemed to be “quite hyperactive and fidgety.” K.K. told Perrotti he lived with his foster parents because his parents did drugs and “bad things.” K.K. said he continued to have “bad nightmares about [Ch.K.] . . . touching” his “private parts.” K.K. said the sexual abuse happened twice, and he feared strangers would also touch him. K.K. got along well with his foster parents, and he wanted to live with them and go to college in the future.

Perrotti described C.K. as “a delightful and pleasant child,” who was “quite verbal and expressive.” C.K. referred to her foster parents as “mom and dad,” and she was happy with them. However, she also said she wanted to go back to her parents, so long as they did not harm her. C.K. loved K.K. and felt “happy about” Ch.K. The social worker said C.K. referred to her biological family as her “other family,” and she and K.K. said they wanted to be adopted by their foster parents.

In Perrotti’s opinion, Ch.K. served as a “secure base” or “anchor” for his siblings, and he was a positive influence or role model. In addition, K.K. provided structure, discipline, and positive interaction with C.K. Perrotti reported the siblings had a “close, positive attachment.” They had a secure attachment based on their shared history. Ch.K. was “a caretaker of the younger siblings and provides, structure, engagement, and nurturing.”

In Perrotti’s opinion, any severing of the sibling bond would not be in their best interests. In particular, Ch.K. presented with “significant depressive symptomatology seeing the future as bleak and hopeless.” Perrotti recommended ongoing sibling contact, and stated Ch.K. should have three visits a week with his siblings. Dr. Perrotti suggested a “psychosexual evaluation of [Ch.K.] and a violence risk assessment with [K.K.] may be useful in assessing the need for continuing monitoring in the future.”

Perrotti said he knew K.K. and C.K. lived with one family while Ch.K. lived with his paternal grandmother. Although K.K. and C.K. lived together their entire lives, neither one had lived with Ch.K. for over two years. Nevertheless, Perrotti stated K.K. and C.K. also suffered from childhood depression. They were already distressed by the loss of their parents, and Perrotti believed severing their bond with Ch.K. would worsen their mental health. In other words, K.K. and C.K. would suffer if contact with Ch.K. was terminated.

Perrotti said K.K. would suffer “egregious” negative effects if he could not see Ch.K. C.K. would suffer “significant” negative effects with discontinuing contact with Ch.K. Perrotti opined all three minors would be at risk of major depression if their contact with each other was severed, and he believed continued sibling contact was more important than the permanence adoption would provide.

Based on research and literature following sibling groups who were placed separately after having lived together, Perrotti said the process of separation was “life-transforming.” He believed the minors would suffer great loss if separated by adoption without any visitation. He described the sibling relationship as “positive, close, group cohesion, engagement, interpersonal engagement.” The minors common experience “by way of being siblings having experienced the same trauma” was one reason for their strong bond, which Perrotti believed should be preserved.

Perrotti recommended monitored sibling visitation three times per week. He also recommended a psychosexual evaluation of Ch.K., and that K.K. undergo a violence risk assessment to evaluate his aggressive behavior. In short, Perrotti believed the siblings need for continued sibling contact outweighed their need for stability and permanence through adoption.

Perrotti was aware of K.K.’s unsubstantiated sexual abuse allegation, but he did not have enough information about the alleged incident to comment. Moreover, Perrotti had not observed any inappropriate conduct between Ch.K. and K.K. While Perrotti knew K.K. and Ch.K. were in therapy to deal with the incident, Perrotti did not speak with K.K.’s therapist.

b. Brendon Brockmann, PhD.

Brendon Brockmann is K.K.’s individual therapist. He is a child and adolescent psychiatry fellow at the University of California with extensive experience in the mental health treatment of children and adolescents, including medication management and psychotherapy. Brockmann testified he had spent around 20 to 25 hours with K.K during treatment focused on K.K.’s underlying attention deficit hyperactivity disorder and the trauma of his family disintegrating.

Brockmann reviewed SSA reports, which included information about the abuse or neglect suffered by K.K. Brockmann worked with K.K. to deal with symptoms of anxiety and anger, how to express emotions and feelings, and how to process the residual effects of abuse. Brockmann said K.K. was making “fair” progress on learning to use words, and how to express his anxiety and anger in words rather than by acting out physically.

Brockmann had never met Ch.K., or C.K., although he was aware of K.K.’s siblings and had briefly observed them in the waiting room before K.K.’s therapy sessions. K.K initially expressed “anxiety” during visits with Ch.K., but recently K.K. had said he felt “less scared and nervous” around Ch.K. Brockmann estimated he and K.K. talked about Ch.K. three to six times for a total of 20 to 30 minutes, but only at Brockmann’s instigation. K.K. alternated between saying he enjoyed, or did not enjoy, visiting Ch.K., and Brockmann did not have a professional opinion as to the number of visits K.K. should have with Ch.K.

c. Brittany Anascavage

Brittany Anascavage (the social worker) had been the social worker on this case since shortly after the disposition hearing. She recounted two reports of inappropriate sexual contact between Ch.K. and K.K. in 2016. One incident allegedly occurred in February or March, and the other in May or June. However, the results of an investigation into the incidents had proved inconclusive. The fact Ch.K. denied the allegation, and the lack of physical evidence, made it difficult for SSA to determine if the allegations were substantiated or unfounded.

After K.K. made his allegations, the siblings had monitored visitation at a visitation center. K.K. said he felt safer having monitored visits, and the social worker wanted to continue this practice. Although the foster parents had arranged for outings with all three siblings, they had never offered to have Ch.K. at their home, and they did not attend any of Ch.K.’s extracurricular activities. Nevertheless, the social worker did not believe the foster parents felt any animosity toward, Ch.K. In fact, the foster parents requested they be assessed for placement of Ch.K. so they could adopt all three minors. However, Ch.K. wanted to stay with his paternal grandmother, who had also requested to adopt all three siblings.

According to the social worker, the foster parents and paternal grandmother had been unable to reach a post-adoption visitation agreement before the section 366.36 selection and implementation hearing. The foster parents said they wanted flexibility in the arrangements, and they did not want to commit to a specific visitation schedule. The foster parents and paternal grandmother said they recognized the importance of the sibling bond, and they wanted to maintain the relationship between the minors. However, the foster parents refused to commit themselves to a set visitation schedule, and they felt the current visitation schedule of three hours each week was more than generous. They wanted to include Ch.K. in minors’ sports and activities, but they did not take K.K. and C.K. to Ch.K.’s extracurricular activities.

Paternal grandmother had expressed the opinion the foster parents were not taking proper care of K.K. and C.K., and the foster parents felt paternal grandmother was overbearing. Paternal grandmother voiced frustrations that the foster parents had cancelled some visits, but she had cancelled more visits than the foster parents. The social worker admitted the relationship between the paternal grandmother and the foster parents “has been tense.” Moreover, in the six months prior to the hearing, the foster parents had facilitated only the minimum mandatory visitation.

The social worker said she had only recently discussed legal guardianship with the foster parents as a potential resolution for this case. The foster parents said they preferred adoption, and up until a week before the hearing, they wanted to limit contact to once per month.

The social worker recommended adoption, but she was not aware Perrotti had testified the sibling bond outweighed permanency. Nevertheless, the social worker believed ongoing sibling contact would occur if the minors were adopted by their respective caretakers, and the benefits of permanency outweighed the significance of the sibling bond. She noted the foster parents’ recent willingness to sign an agreement for monthly visitation between the siblings.

Based on her observations and conversation with the various adults involved in the case, the social worker was confident they would maintain the sibling relationship. In particular, she relied on the fact that the foster parents had maintained family relationships created by their previous adoption. When the social worker discussed Perrotti’s recommendation with the foster parents, they seemed surprised. They did not agree with his opinion Ch.K., K.K., and C.K. needed to meet multiple times during the week. On the other hand, paternal grandmother wanted the siblings to have more frequent contact.

Pursuant to the juvenile court’s order, the social worker provided the foster parents with a legal guardianship pamphlet, and they indicated a commitment to minors regardless of the court’s decision on adoption. By the conclusion of the hearing, both the foster parents and paternal grandmother had signed legal guardianship papers.

d. Ruling

Following the section 366.26 hearing, the juvenile court stated there was ample evidence the minors were adoptable. However, relying primarily on Perrotti’s testimony, the court also believed the benefit to the minors of their strong sibling bond outweighed their need for permanence through adoption. The court was unconvinced the foster parents would voluntarily agree to the necessary amount of visitation to continue the close sibling bond should they adopt K.K. and C.K.

As the court stated, it found “no evidence to ensure in fact going forward the sibling bond will continue to develop and exist through visits, which is why the court believes that if the children are freed for adoption there will be substantial interference in the children’s sibling relationship.” Consequently, the court ordered a permanent plan of legal guardianship with sibling visits to occur at least once a week for three hours at a minimum.

DISCUSSION

California’s comprehensive statutory scheme for children removed from their parent’s custody first attempts to reunify the family within a specified time period. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 247-249.) If reunification services fail to reunite the family within this time period, the court must terminate reunification efforts and set the matter for a hearing pursuant to section 366.26 for the selection and implementation of a permanent plan.

“A section 366.26 hearing . . . is a hearing specifically designed to select and implement a permanent plan for the child.” (In re Marilyn H. (1993) 5 Cal.4th 295, 304.) “Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.” (Id. at p. 309.) “[T]he juvenile court has three options: (1) to terminate parental rights and order adoption as a long-term plan; (2) to appoint a legal guardian for the dependent child; or (3) to order the child be placed in long-term foster care.” (In re Fernando M. (2006) 138 Cal.App.4th 529, 534.)

Adoption is the preferred option when “the court finds a minor cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated.” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947 (In re L.Y.L.)). In fact, the court “must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the minor under one of five specified exceptions.” (Ibid.)

One of the five exceptions is the sibling-relationship exception to the termination of parental rights. (§ 366.26, subd. (c)(1)(B)(v); In re Celine R. (2003) 31 Cal.4th 45, 52.) This exception allows the court, “in exceptional circumstances,” “to choose an option other than the norm, which remains adoption.” (Id. at p. 53.)

To invoke this exception, the court must find “[t]here would be substantial interference with a child’s sibling relationship.” (§ 366.26, subd. (c)(1)(B)(v). Moreover, the court must consider “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.” (Ibid.; In re L.Y.L., supra, 101 Cal.App.4th at pp. 947-948.)

We review findings as to the section 366.26 exceptions under a hybrid standard of review. (In re C.B. (2010) 190 Cal.App.4th 102, 122-123 (In re C.B.); see In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) We review the juvenile court’s determination of the facts under the substantial evidence test. (In re C.B. at pp. 122-123.) The juvenile court’s determinations of law are reviewed de novo, and its application of the law to the facts is subject to the abuse of discretion standard. (Ibid.)

Under the substantial evidence test, “[w]e do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts” (In re L.Y.L., supra, 101 Cal.App.4th at p. 947), and “we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)

To find an abuse of discretion, the court’s application of the law to the facts must yield a result that is arbitrary or capricious. (In re C.B., supra 190 Cal.App.4th at 122-123.)

K.K., C.K., and county counsel assert there is no evidence in the record to support the juvenile court’s conclusion adoption would substantially interfere with the minors’ visitation, and the application of the sibling relationship exception here constitutes an abuse of discretion. We disagree.

The juvenile court had the opportunity to observe the demeanor of the relevant witnesses, and it is not our role to interfere with the juvenile court’s assessment of the witnesses’ credibility, or to reweigh the evidence. Perrotti testified the minors shared a close bond from their many years together with the parents. They shared significant common experiences from that time, they had suffered the same types of trauma, and they were at risk for depression if frequent and regular visitation did not occur. Perrotti also said ongoing sibling visitation was paramount to maintaining the minors’ well-being, and more important than the stability gained through adoption. The court relied on this testimony, and nothing in the record suggests Perrotti’s expert testimony should be disregarded.

On the other hand, the social worker preferred adoption simply because it is the statutorily preferred plan, and because she believed the foster parents would continue to offer regular, frequent sibling visitation. She based this belief on their past performance in a different adoption, their past statements, and their past performance of the visitation plan. However, the foster parents had failed to sign a written visitation agreement before the section 366.26 selection and implementation hearing, and at the time of the hearing, the foster parents seemed inclined to reduce visits, not increase them as Perrotti recommended. In addition, the foster parents seemed willing to have Ch.K. and the paternal grandmother join them and their family in their activities, but they had not made much of an effort to involve K.K. and C.K. in Ch.K.’s life.

Furthermore, the record reflects tension in the relationship between the foster parents and paternal grandmother. They had already disagreed on the amount and nature of contact the minors should have. There had been complaints by both sides about the other cancelling visits, and what exactly constitutes proper parenting. Although the foster parents had become more willing to engage in frequent contact during the proceedings, this occurred only after they learned legal guardianship could be ordered instead of adoption. Thus, while K.K., C.K., and county counsel believe the facts do not show a substantial interference would occur in the sibling visitation, the court was understandably skeptical. As stated in In re Celine R., supra, 31 Cal.4th at page 55, “When appropriate, the court can encourage the adoptive parents to agree to visits among the siblings although . . . it cannot require them to do so.”

In our view, substantial evidence supports the court’s finding of a significant sibling bond based on the minors’ shared history and experiences. In a case where animosity between the foster parents and paternal grandmother had already interfered with visitation to some extent, the court correctly found the termination of parental rights and adoption of the minors would substantially interfere with the most important relationship these minors have, which is each other. The court’s application of the sibling relationship exception to the facts in this case did not yield a result that is arbitrary or capricious. Thus, no abuse of discretion has been shown.

DISPOSITION

The judgment is affirmed.

THOMPSON, J.

WE CONCUR:

MOORE, ACTING P. J.

GOETHALS, J.