In re F. T. CA1/4 ( 2015 )

Filed 6/25/15 In re F. T. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re F. T., A Person Coming Under the
Juvenile Court Law.
SAN MATEO COUNTY HUMAN
SERVICES AGENCY,
Plaintiff and Respondent, A142565
v.
(San Mateo County
V.T. et al., Super. Ct. No. 81801)
Defendants and Appellants.
In this dependency appeal, V.T. (father) and K.L. (mother) seek relief from the
juvenile court order terminating their parental rights with respect to their youngest
daughter, F. (born December 2008), pursuant to section 366.26 of the Welfare and
Institutions Code.1 Although the record in this case is long and involves multiple
dependency proceedings initiated with respect to F. and/or her siblings and half-siblings,
both parents limit their argument on appeal to a single issue: They claim that termination
of their parental rights with respect to F. was improper under the “sibling exception” to
adoption. More particularly, they assert that the juvenile court erred in determining that
the benefits of adoption in F.’s case outweighed the benefits of maintaining her sibling
1
All statutory references are to the Welfare and Institutions Code unless otherwise
specified.
1
relationships. Application of the sibling exception to block adoption is appropriate when
the juvenile court finds “a compelling reason for determining that termination would be
detrimental to the child” because “[t]here would be substantial interference with a child’s
sibling relationship . . . .” (§ 366.26, subd. (c)(1)(B)(v).) Having reviewed this matter in
some detail, we see no error in the juvenile court’s refusal to apply the sibling exception
to adoption in this case. We therefore affirm the juvenile court’s order terminating
parental rights.
I. BACKGROUND2
Prior to the juvenile court intervention that formed the basis for these proceedings,
F.’s family—including step-sister Serena (born February 1996) and siblings James (born
January 2000), Billy (born March 2001), and C.T. (born March 2002)—had been the
subject of 50 prior child welfare referrals in both San Francisco and San Mateo Counties,
dating back to 2002. The vast majority of the referrals with respect to mother and father
involved allegations of neglect, including: an unsanitary and hazardous home; the
children being dirty and smelling bad; mother appearing depressed and overwhelmed;
and father having difficulty with anger management and domestic violence. In fact,
during this extended time frame, the family was almost always involved in a child
welfare intervention of some kind.
Specifically, from November 2002 through March 2004—after voluntary services
were unsuccessful—James, Billy, and C.T. were the subjects of juvenile dependency
proceedings in San Francisco County under a plan of family maintenance. Thereafter,
additional dependency petitions were filed in San Mateo County in February 2005, and
James, Billy, and C.T. were again declared juvenile court dependants, this time remaining
in out-of-home care until January 2006. The minors then continued under a family
maintenance plan for three years until dependency was eventually dismissed in January
2
Given the narrow scope of this appeal, we focus our factual summary on matters
relevant to the strength and quality of Fiona’s sibling relationships.
2
2009.3 Serena and her sister Jessica—two of mother’s three daughters from another
relationship4—resided with their father and were involved in dependency proceedings in
San Francisco County starting in 2006, which ultimately led to the placement of Serena
with mother in April 2009.5 Sole physical custody of Serena was granted to mother in
May 2011 and Serena’s dependency action was dismissed. Jessica remained in a
permanent plan of long-term foster care.
A. Establishment of Dependency Proceedings
Despite the dismissal of these various prior dependency actions, however, the
family continued to be the subject of child welfare referrals. In July 2011, for instance,
the Department received a referral stating that Billy always came to school hungry, dirty,
and smelly, with a fecal odor so overwhelming that people had to move away from him
to prevent involuntary gagging. In August 2011, a community-based service provider
that had been working with the family since October 2010 indicated that, while the
family had made “sporadic improvement,” it consistently returned to “baseline which is
inadequate in meeting the needs of the children.” Additionally, in September 2011,
concerns were raised that the parents were not consistently giving Billy and James
prescribed medications necessary to treat their serious mental health issues. Specifically,
Billy—who had very extreme acting out behavior—had been diagnosed with post
traumatic stress disorder (PTSD) and oppositional defiant disorder. James—who was
reported to be delusional at times—had been diagnosed as bipolar. Both boys had
expressed suicidal ideation and had exhibited dangerous behavior toward their younger
3
In July 2006, while the family remained under court supervision, Billy sustained third
degree burns over 18 percent of his body. The burns were accidentally inflicted by his
sister, C.T., when she lit his shirt on fire while playing with a cigarette lighter. Billy’s
back remains severely scarred as a result of this trauma.
4
Wendy, the third daughter, reportedly spent most of her life in China when not residing
with her father. She has never been a juvenile court dependent.
5
Allegations with respect to Serena’s father included neglect, physical abuse, and a
gambling addiction.
3
siblings, which the parents discounted. Also in September 2011, C.T.’s school reported
that C.T. had stated that she wanted to kill herself and claimed that she had cut herself.
While investigating these concerns, the Department discovered that the family
home was “filthy,” strewn with garbage, containing multiple safety hazards, and infested
with cockroaches. Two-year-old F. was observed on many occasions to be undressed,
unsupervised, and with a heavily soiled diaper, and slept on the floor in an area of the
house filled with roaches. Finally, Serena—who also had a history of suicidal ideation
and depression—was found to be spending days at a time locked in her room without
changing her clothes and had not been to school for several weeks. She stated that she
preferred to lie in bed all day. Serena had been psychiatrically hospitalized in 2010 for
suicidal ideation while in mother’s care. V.T. reported that the minor played with fire.
On October 4, 2011, the San Mateo County Human Services Agency
(Department) filed juvenile dependency petitions with respect to all five of the minors
currently residing with mother and father—Serena, James, Billy, C.T., and F.—alleging
that that the children were once again at substantial risk of harm due to the overarching
neglect of their parents. After a contested hearing, the minors were detained on October
7, 2011. Specifically, F. and C.T. were detained together in shelter care, Serena was
placed at Excell Readiness Center, and the boys were detained at the Receiving Home.
In addition, the juvenile court referred C.T. for crisis counseling and ordered the
Department to assist the court in obtaining mental health evaluations for the children.
Two days after his October 7 detention, James was placed on a psychiatric hold
pursuant to section 5150 as a danger to himself.6 This was the eleven-year old’s second
5150 hold. Previously, he had been psychiatrically detained in 2010 after running out of
6
Section 5150 provides, in relevant part, that “[w]hen a person, as a result of a mental
health disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace
officer . . . or professional person designated by the county may, upon probable cause,
take, or cause to be taken, the person into custody for a period of up to 72 hours for
assessment, evaluation, and crisis intervention, or placement for evaluation and treatment
in a facility designated by the county for evaluation and treatment and approved by the
State Department of Health Care Services.”
4
his therapist’s office into the street and then trying to grab a police officer’s gun. The
previous day he had stated that he wanted to die. During this first hospitalization, James
was described as having both auditory and visual hallucinations, and he remained fixated
on death and dying. Despite only slight improvement, he was released at the insistence
of father against medical advice. During his second hospitalization, a hospital social
worker reported that James had a “ ‘massive preoccupation with playing videogames, and
preoccupation with death and dying and killing and stabbing and knives and guns.’ ” He
was returned to the Receiving Home on October 20 after a change in psychotropic
medication seemed to be helping him.
C.T., at nine years of age, had a diagnosis of major depression with elements of
psychosis. She continued to engage in the unsafe, acting-out behaviors at school that she
had begun exhibiting in the weeks prior to her detention, including running out of the
classroom, running off campus, hiding in the school, climbing on furniture, screaming for
extended periods of time, and cursing at staff and peers. She was suspended from school
on October 14, 2011, for unsafe behavior. Further, while being transported to a visit on
October 13, 2011, C.T. screamed, took off her seatbelt, and hit F. and Billy. C.T.’s
school principal indicated that C.T.’s behaviors were the same thing that he had seen with
Billy and James all over again.
According to C.T.’s foster mother, C.T. and F. had been doing “fairly well” in the
foster home. However, the foster mother stated that she had to monitor C.T. closely,
particularly during her interactions with F. She elaborated: “ ‘[C.T.] screams at F. all the
time, but she doesn’t scream at me. I’ve seen her pulling the baby across the room and
hollering at her, so I have to go real fast to stop her.’ ” In addition, the foster mother
described some concerning behavior in two-year-old F., stating: “ ‘There’s lots of anger
in her. If she can’t have her way, she will hit, kick, and bang her head. She has some
serious melt downs. . . . She gets up on tables, and flips over furniture.’ ”
In an October 2011 interim report, the Department stressed the serious mental
health issues seen in all five children. As the social worker opined: “Clearly, these are
very disturbed children, who are showing classic signs of not having their needs met.” At
5
the interim hearing on October 24, the juvenile court declined to return F. to her parents’
care. It again ordered mental health evaluations for all five minors. On November 16,
2011, an amended dependency petition was filed for F. adding a subdivision (j) allegation
of sibling abuse to the existing subdivision (b) neglect allegation.
In its jurisdictional reports, the Department elaborated on the minors’ mental
health issues, attaching completed mental health assessments for all five of the children.
With respect to C.T., a school-based psychiatric social worker that had worked with the
family for years reported: “I haven’t done a comprehensive assessment of [C.T.], but it
seems like her behavior is a result of years of neglect and not getting her needs met. She
likely has attachment issues. I think that’s the problem with all the kids—I think they
have mental illnesses because of their upbringing. . . . [C.T.] has a negative way of
handling things.” Another crisis counselor assigned to C.T. in October 2011 noted her
attachment to her parents and the jealousy that she has “toward her siblings, specifically
F.” C.T. was referred to a psychiatrist for a medication evaluation, to whom she reported
episodes of hearing voices. The psychiatrist recommended an antidepressant and
indicated that an antipsychotic might eventually be necessary as well.
Moreover, between November 28, 2011, and January 6, 2012, the police had to be
called on four separate occasions—once to school, one at the foster home, and twice
during family visitations—due to unsafe behaviors exhibited by C.T. At one family visit,
for example, C.T. kicked and pushed chairs and tables, rolled on the ground crying and
screaming, and urinated on herself. On January 13, 2012, the juvenile court gave the
Department the discretion to limit C.T.’s family visitation based on her behavior.
F.’s therapist highlighted the minor’s language delays, limited ability to self-
soothe, and an episode of dissociation, all signs of neglect. She also noted “ ‘signs of
attachment issues.’ ” F. was also displaying some depressive symptoms and continued to
struggle to meet her own needs, not understanding that adults could assist her. In January
2012, the juvenile court granted the Department the authority to have F. placed under
general anesthesia so that decay in 12 of the minor’s teeth could be assessed because the
minor was otherwise unable to tolerate the investigation. At the dental procedure on
6
February 22, F. was found to have a total of 14 severe cavities and received crowns on 13
teeth.
Dr. Leslie Packer (Dr. Packer)—who performed individual psychological
evaluations on Serena, Billy, James, and C.T.—concluded with respect to Serena that the
minor “has severe social delays, she does not know how to relate to peers, and her
lifelong series of crises and traumas have detracted from her ability to learn socialization
skills.” Dr. Packer believed a group home placement would be best for Serena. With
respect to James, Dr. Packer asserted that “[i]t is clear from his speech patterns that the
line of distinction between James’s sense of reality and his fantasy life is not well
defined.” His dissociation was viewed as a defense mechanism used to cope with the
home life he experienced with his parents. Similarly, Billy was assessed as using
avoidance and denial to deal with his home situation. He admitted hearing voices to Dr.
Packer and also stated he thinks about death a lot—“ ‘when I’m dead nothing more will
happen to me.’ ” Serena was placed in a group home in December 2011, and the boys
were placed together in a different group home in February 2012.
According to Dr. Packer, C.T. suffered from “extreme emotional neediness” and
also used dissociation to an “unhealthy extent” as a means to escape from her current
reality. She diagnosed all four of the older minors as suffering from PTSD. In addition,
Billy, James, and C.T. were all receiving special education services because they had
been designated “ ‘emotionally disturbed’ ” under their Individualized Education
Programs (IEPs).
After numerous continuances, jurisdiction was finally established with respect to
all five minors after a contested hearing on March 7, 2012. Specifically, F. was found to
be a child described by subdivisions (b) and (j) of section 300. On March 27, 2012, a
contested dispositional hearing was completed, the minors were declared to be dependent
children of the juvenile court, and all five children were formally placed in out-of-home
care. Reunification services were ordered for the family.
B. Reunification Period
7
In April 2012—while reunification services were being provided—C.T. and F.
were moved to a different foster placement after their current foster mother indicated that
“the girls had a high level of needed attention and emotions devoted to them” and that she
was unable to manage their needs along with the needs of her own daughter. Serena was
also moved to a higher level group home during this timeframe after engaging in
disruptive behavior and refusing to go to school. After Serena attempted to heat rocks on
the stove and throw them at staff and also repeatedly attempted to tie things around her
neck, she was psychiatrically hospitalized pursuant to section 5150 one month into this
new placement. James continued to have instances of suicidal ideation, self-harming
behaviors, and physical aggression in his group home. He and Billy began sibling
therapy to address their continuing “significant difficulties in regard to poor interpersonal
boundaries, problematic power dynamics, and inflexible family roles.” On June 14,
2012, at an interim review hearing, the juvenile court ordered twice monthly sibling visits
for the minors in addition to the family visits.
In July 2012, F. underwent a psychological evaluation with Dr. Packer. According
to Dr. Packer—despite the poor foundation provided in her first two years of life—F.
appeared to have traits of resilience and emotional strength. The types of symptoms that
F. had shown when she came into placement were no longer evident, and the foster
mother reported that F.’s sibling conflicts with C.T. were “more attributable to [C.T.’s]
competitiveness and jealousy, rather than F.’s behaviors per se.” Moreover, F. showed
no grossly evident symptoms of attachment disorder and appeared to have feelings of
trust and security toward her current foster mother, whom she called “ ‘mommy.’ ” In
Dr. Packer’s opinion, if F. were freed for adoption, it was “realistic” that she would be
able to form healthy attachments with adoptive parents. However, if more services were
ordered for the parents, F. could potentially grow too old to form a secure attachment
with new parent figures. Finally, Dr. Packer diagnosed F. with neglect, indicating that
her speech delays were not due to any underlying disability.
On September 8, 2012, C.T. received a seven-day notice requesting a change in
placement due to behaviors such as yelling, kicking, punching her foster parents, and
8
punching herself. According to the foster mother, C.T. frequently lied, failed to follow
the house rules, engaged in self-harming behavior (such as hitting her head against the
wall or burning her skin by rubbing the carpet), and had frequent tantrums (including
crying, tearing her belongings out of drawers, and shouting profanities). In July 2012,
she was taken to a mental health crisis center when she became upset and began to bite
herself. The foster mother further stated that C.T. was jealous of F. and tended to act
immaturely when adults paid attention to the younger minor. In her opinion, C.T. would
thrive in a house where she was the only child. Nevertheless, on September 13, 2012,
both girls were moved together to a third foster home. Because of this change in
placement, individual therapy that had been scheduled to begin for F. was delayed
because a new provider had to be found who could serve the minor in her new location.
The six-month review hearing was contested and continued several times from
September 25, 2012, to November 15, 2012. Because of the many continuances that had
occurred in this case, the hearing was also treated as a 12-month permanency hearing. At
that time—despite the fact that F. had been under the age of three at the time or her
removal, had been in out-of-home care for longer than the 12-month maximum
prescribed by section 361.5, subdivision (a)(1)(B), and was deemed adoptable—
reunification services were continued for the parents by stipulation of the parties.
Specifically, pursuant to this stipulation, the parties agreed that there was a substantial
probability that all of the minors would be returned to the physical custody of the parents
within 18 months of detention (April 2013). The stipulation further provided that
exceptional circumstances existed allowing continuance of the 18-month hearing from
April 2013 to May 2013. Moreover, an additional six months of services—from May
2013 to November 2013—would be permitted upon the court finding that the parents had
made significant progress in resolving the problems that led to the removal of the
children and that there was a substantial probability the children would be returned to the
home within the extended period of time. By agreement, family visitation was increased
to four hours per week, with all of the children and parents attending together.
9
At a hearing on March 21, 2013, the juvenile court requested an updated mental
health assessment for F. It also authorized unsupervised and/or overnight visitation in the
discretion of the Department. In its addendum report for a hearing in May 2013, the
Department indicated its intention to begin stepping down the supervision level during
the family’s weekly visits. The juvenile court continued the 18-month hearing to August
2013 for further review of the parents’ reunification efforts.
In a June 2013 report, the Department recommended a further step down in
supervision as the visitation was going well. In fact, Serena was reported to be ready for
unsupervised visitation. However, in its August 1, 2013, report, the Department noted
some visitation issues involving F. and C.T. Specifically, on July 7, father reportedly
became angry at a McDonald’s employee during a family visit, screaming, swearing and
storming out of the building. On July 28, C.T. and F.’s foster mother reported that
neither girl wanted to attend the upcoming visit. C.T. stated that her father had called her
“ ‘crazy’ ” and she was worried he would yell “ ‘mean things in Chinese’ ” at her. Based
on these incidents, the Department recommended that visitation with the two younger
girls remain supervised, and this was ordered by the court on August 28, 2013. By
October 2013, however, both C.T. and F. were experiencing anxiety after visits and
conflicted loyalties after being told by father that they did not need to listen to their foster
mother.
During this timeframe, Dr. Packer performed updated psychological evaluations
on James, Billy, C.T., and F. With respect to James and Billy, Dr. Packer concluded
that—as a result of their 18 months of therapeutic placement—both boys had “progressed
from a state of acute psychosis, to a level of functioning that offers a glimmer of hope
that they can be brought along to function in society.” Severe social challenges remained
their area of greatest concern, as the boys had failed to learn emotional reflection,
emotional attunement, and empathy while growing up with their parents. Dr. Packer
recommended that the boys remain together in residential treatment, with hopes that they
could ultimately be placed together in a therapeutic foster home. She did not recommend
return to mother and father.
10
Dr. Packer’s evaluation of C.T. characterized the minor’s academic progress since
her removal from the family home as “remarkable,” although she continued to be
emotionally and socially delayed. While still diagnosed with PTSD, C.T.’s symptoms
had reduced in intensity. However, C.T. still had fits and screamed when she did not get
her way or was required to do a chore. And, she would act out by hitting F. or doing
other things to make her younger sister cry. In Dr. Packer’s opinion, C.T.’s “touchiness
and her unruly, negativistic behaviors express her struggle and pushback about trusting
adults to meet her dependency needs.” Further, in order to “optimize her chances for
healing from her severe emotional disorders,” C.T. needed to be given a “clear message”
that she would not be returning to her parents.
With respect to F., Dr. Packer again noted her characteristics of resilience and
emotional strength. F. still showed issues with speech articulation that were not
attributable to any underlying developmental delay. However, since her previous
evaluation, she had become “remarkably more chatty and confident in expressing
herself.” Moreover, F. was no longer showing symptoms of PTSD. And, while she still
presented with some attachment issues, such as indiscriminate friendliness, her behavior
did not place her at the level of a “full-blown attachment disorder.” Rather, Dr. Packer
opined that she had the potential to form new attachments, although this possibility could
lessen as she aged. Dr. Packer recommended that F. not be returned to her parents. In
addition, while she acknowledged that F. was adoptable, Dr. Packer believed that keeping
C.T. and F. together in the same placement would “reduce their risk factors going
forward” and should therefore trump any solo move of F. to an adoptive home.
According to Dr. Packer, such a joint placement “has the advantage of insulating them
with the security of growing up with a sibling who understands their background and life
experiences.”
After numerous continuances, a contested 18 month review hearing was held over
the course of five days in November 2013. In its third addendum report submitted in
connection with this hearing, the Department noted that, with the necessary support and
structure in their lives, James, Billy, C.T. and F. had been able to overcome many of the
11
“serious behavioral and emotional deficits” that they had originally displayed when they
were removed from their parents’ care. It stressed, however, the “high levels of neglect
and trauma” that the children had experienced over the years. Further, the Department
expressed concern that the parents had not progressed sufficiently to meet the minors’
“extreme needs” and opined that return of the minors to their parents would likely result
in a regression in the children’s level of functioning. The Department thus recommended
that reunification services be terminated for both parents.
At the conclusion of the contested hearing, the juvenile court agreed with the
Department, terminated reunification services for mother and father, placed Billy, James
and Serena in long-term foster care, and referred C.T. and F. for a permanency planning
hearing pursuant to section 366.26. Both parents subsequently filed writ petitions with
respect to C.T. and F., challenging the juvenile court’s decision to terminate reunification
services and refer the minors for permanency planning.7 On February 27, 2014, we
issued an unpublished opinion upholding the decision of the juvenile court, including its
findings that the Department had provided reasonable services and that return to parental
custody would present a substantial risk of detriment to the two minors. (V.T. v. Superior
Court (Feb. 27, 2014, A140497 [nonpub. opn.].)
C. Permanency Planning
In its report submitted in connection with the anticipated permanency planning
hearing for C.T. and F., the Agency disclosed that C.T. had been removed from her foster
placement with F. in December 2013, after being detained as a danger to herself pursuant
to section 5150. Specifically, on December 3, C.T. reportedly attempted to get off her
school bus while it was still moving. Later, when she arrived at her foster home, she
initially refused to exit. Then, once she was off the bus, she attempted to go underneath it
7
Appeals by mother and/or father of the juvenile court’s decision to place Serena, James,
and Billy in long term foster care were dismissed in July 2014 after counsel for both
parents filed briefs finding no arguable issues. (San Mateo County Human Services
Agency v. K.L. (July 3, 2014, A140377) [dismissal order].) By that point, Serena had
turned 18.
12
while it was driving away. She subsequently tried to cut herself on a metal fence. The
police were called and placed C.T. on a psychiatric hold. When the minor was released
on December 9, she refused to return to her foster home and was therefore placed with
another family.8 F. and C.T., however, maintained contact during family visitation and
also attended therapy with their parents every two weeks.
C.T. continued to take psychotropic medication to address her mood disorder and
to participate in individual therapy to address her behavioral and emotional issues. She
remained a special education student with an active IEP, but was mainstreamed in two
subjects and doing well. Moreover, C.T. reported that she was enjoying school and
making new friends since she had been moved. Because of her behavioral and emotional
issues, the Agency was continuing to assess her adoptability.
F. reported that she enjoyed attending school and, according to her foster mother,
she was doing well there. F. participated in weekly therapy, and her January 2014
treatment plan had indicated that she met the diagnostic criteria for adjustment disorder
with mixed anxiety and depressed mood. Recently, however, F.’s behavioral symptoms,
such as tantrums, had decreased. Her adoption worker opined that F. was adoptable, due
to her age, good health, and ability to attach to her current caregiver. However, because
of the “close sibling bond” between C.T. and F., the Department was requesting a
bonding study and planned to assess how the children transitioned to living apart.
While C.T. and F. were still living together, the foster mother indicated that both
girls displayed behavioral issues after family visits, including fighting and failing to
follow the rules of the home. Reportedly, F. got more attention from father at family
visits than did C.T., and C.T.’s therapist believed this could be a trigger for C.T.’s
destructive behaviors. For instance, there appeared to be more physical aggressiveness
by C.T. to F. after visits. F., however, was also showing some aggressiveness, becoming
physically violent with other children and animals. At a visit on December 8, 2013, F.
8
When asked about her refusal to go back to her foster home, C.T. merely stated that she
did not want to return and that the foster mother sometimes used a loud voice when C.T.
was not behaving.
13
told father that C.T. (who had been psychiatrically hospitalized) was lying about being
sick and that she did not want to talk about her. Later, F. reported that C.T. always said
that she (F.) lies, which is not true. Based on these and other issues with visitation, the
juvenile court on January 17, 2014, decreased family visits from weekly to every other
week pending the next court hearing.
On March 4, 2014—the date initially set for the permanency planning hearing—
the juvenile court continued the matter so that a bonding study could be completed by
Dr. Packer. The court indicated that the bonding study should consider all four children,
even if not legally required to do so, because “it’s more information that might make the
picture clearer” and “it would be helpful to know as much as possible.” The court also
confirmed its reduction of supervised visitation between the children and their parents to
twice per month, while supervised visitation among the siblings, themselves, was
maintained at once per week. Finally, the juvenile court granted the petition for de facto
parent status presented by F.’s foster mother, and appointed an attorney for her.
On June 9, 2014, Billy’s attorney filed a section 388 petition asking the juvenile
court to recognize his sibling relationship with F., arguing that the sibling exception to
adoption should apply in this case, and maintaining that continued contact with all three
of her siblings was in F.’s best interests. In addition, prior to the contested permanency
planning hearing, the Department filed an addendum report which reiterated its previous
conclusion that F. was adoptable. Indeed, F. was reported to be thriving in the home of
her foster mother and had stated that she wanted to continue to live with her. Although
F. was attached to the foster mother, the Department opined that, if the foster mother was
for some unforeseen reason unable to proceed with permanency, it was “confident” that
another adoptive home could be located for F. With respect to C.T., the Department was
now recommending a permanent plan of long-term foster care due to her ongoing
behavioral and emotional issues.
Finally, Dr. Packer submitted her bonding study, which concluded that, while the
severance of her sibling relationships would be “impactful” for F., the relationship
between the siblings did “not override the benefit to F. that adoption would provide.” Dr.
14
Packer further indicated that F. was at “the final window of opportunity for being open to
forming secure bonds with new parent figures. If she were to be freed for adoption, it is
still probable that she could form healthy attachments with adoptive parents.” Moreover,
F.’s “recovery and resilience” boded well for her ability to adjust in a “nurturing and
reparative adoptive placement.”
In reaching her conclusions, Dr. Packer noted that all four siblings have a “double
loading of risk factors” due to both their mother’s mental illness and their history of
neglect. While having improved significantly since their removal from the family home,
James and Billy still struggled with “major issues in their mental functioning” and were
in continued need of residential placement. C.T. was reported to be “consistent and
firm” and “not at all sentimental” about living apart from F. Moreover, her jealousy of
F.’s favored status was “still a dynamic” in the sibling relationship. With respect to F.,
while she “still display[ed] mild signs of attachment disorder, such as indiscriminate
friendliness with strangers,” she had for the most part overcome the symptoms Dr. Packer
observed during prior evaluations. She was noted not to “reliably discriminate which
brother is James and which is Billy.” And, although her sibling attachment to C.T. was
described as a “factor that needs to be considered,” Dr. Packer opined: “As far as their
relationship being a sustaining source of security, however, this was not found to be the
case.”
At the contested permanency planning hearing on June 10 and 12, 2014, F.’s
adoption worker reiterated that he was “firm” that the minor was “very adoptable.”9 He
further reported that, at his most recent home visit with F., she indicated that she wanted
to remain with her current foster mother. Moreover, “[s]he was calm and pleased and
joyful and we were playing with dolls, we played with dolls for awhile in a more calmer
[sic] way than I have seen the other times. . . .” Although he acknowledged the bond
between F. and C.T., the adoption worker testified that maintaining the sibling
9
C.T. was not present at this hearing as she had a “mental breakdown” at the conclusion
of the prior hearing which resulted in a psychiatric hold pursuant to section 5150.
15
relationship was no longer the “first priority” after C.T.’s emotional issues caused several
placement disruptions. Instead, permanency for F. became the higher priority.
Dr. Packer also testified at the contested hearing regarding F.’s sibling
relationships. While she acknowledged that F. may long for her siblings in the future if
she is not with them, that her siblings would create a sense of where she came from for
F., and that F. would be “stunned” by losing her siblings, Dr. Packer reiterated her
conclusion that permanent adoption offered F. “much more,” stating: “Her life is yet un[-
]lived, she is five years old and she is still at a point of openness to form a parental bond
and that’s the foundation of a healthy personality.” Indeed, after C.T.’s second
psychiatric breakdown, Dr. Packer no longer saw her relationship with F. as a healthy
one. Rather, C.T. was unlikely to experience placement stability and was headed for
“risk factors” as she aged due to “her desire for attention and her lack of foundation in
knowing what[] to count on from adults and other people.”
With respect to F.’s level of attachment to her siblings generally, Dr. Packer
testified: “[F.] is a needy little girl and she has a history of attachment disorder. The
main symptom was being indiscriminately friendly with strangers. She used to go up and
seek affection from anyone. She is very adorable and she knows how to charm and get
attention. And so the fact that she does that with her siblings but I also know that she
does it with strangers doesn’t convince me of the depth what she is doing with her
siblings.” Dr. Packer further testified that, while F.’s attachment issues might initially be
exacerbated by termination of her sibling relationships, this setback would “presumably”
be “offset by the richness of the new family she is placed with and moving onto a happy
life.” In sum, in her 40 years of experience with these types of cases, Dr. Packer had
“seen so much better outcomes with adoption.”
At the conclusion of the permanency planning hearing, the juvenile court
acknowledged that there are “undeniable benefits” to sibling relationships and
maintaining the family unit as much as possible. However, the court agreed with
Dr. Packer that—in this case—any detriment suffered by F. from termination of her
sibling relationships was outweighed by the likely benefits of adoption. In reaching its
16
conclusion, the court noted that fostering F.’s connection to the past through her siblings
was not necessarily a good thing, as it had been a neglectful and abusive past.
Characterizing the siblings’ background as “just unfortunate,” the juvenile court
concluded that “they each need to have a chance to get passed [sic] it and not to relive it.”
In sum, the court opined: “Nothing about this case is ideal but I think I’m strongly
convinced that this is the best option for F. That it gives her a much better chance [of]
coming out well in the long run even if there are some additional bumps along the way
from the presumed lack of connection with the siblings.” Indeed, in the court’s mind, the
facts of the case did not even present a particularly close question. The juvenile court
thus found F. adoptable, declined to apply the sibling exception to adoption, and
terminated the parental rights of both mother and father. Timely notices of appeal by the
parents brought the matter before this court for a second time.
II. DISCUSSION
A. Standing and Standard of Review
It is clear that—as parents whose parental rights would otherwise be terminated—
both V.T. and K.L. have standing on appeal to challenge the juvenile court’s refusal to
apply the sibling exception to adoption in this case. (In re Hector A. (2005) 125
Cal.App.4th 783, 791; In re L. Y. L. (2002) 101 Cal.App.4th 942, 948-951 (L. Y. L.).)
What is less clear is the appropriate standard of review to be applied by this court to the
juvenile court’s decision with respect to the applicability of the sibling exception.
Initially, courts routinely reviewed such determinations for substantial evidence. (In re
Autumn H. (1994) 27 Cal.App.4th 567, 575-576 (Autumn H.); see In re Jasmine D.
(2000) 78 Cal.App.4th 1339, 1351 (Jasmine D.) [listing cases].) However, in 2000, the
First District applied the abuse of discretion standard when reviewing the appropriateness
of a juvenile court’s refusal to apply one of the statutory exceptions to adoption.
(Jasmine D, supra, 78 Cal.App.4th at p. 1351.) While acknowledging that the “practical
differences” between the two standards of review are not “significant,” the Jasmine D.
court found the abuse of discretion standard to be analytically superior because custody
determinations are typically reviewed on that basis. (Ibid.)
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More recently, the Sixth District in In re Bailey J. (2010) 189 Cal.App.4th 1308,
concluded that “both standards of review come into play in evaluating a challenge to a
juvenile court’s determination as to whether the parental or sibling relationship exception
to adoption applies in a particular case.” (Id. at p. 1314.) Specifically, the Bailey J. court
determined that the first question—whether a beneficial parental or sibling relationship
exists—is a factual one that should be reviewed for substantial evidence. (Ibid.) In
contrast, the second question—whether the existence of that relationship constitutes a
“compelling reason for determining that termination would be detrimental to the child”—
was characterized by the Bailey J. court as a “ ‘quintessentially’ discretionary”
determination. (§ 366.26, subd. (c)(1)(B); Bailey J., supra, 189 Cal.App.4th at p. 1315.)
Thus, this second question, which “calls for the juvenile court to determine the
importance of the relationship in terms of the detrimental impact that its severance can be
expected to have on the child and to weigh that against the benefit to the child of
adoption,” should be reviewed for abuse of discretion. (Bailey J., supra, 189 Cal.App.4th
at p. 1315.)
Since its publication, both the Second District and the Fourth District have
adopted Bailey J.’s analysis regarding the proper standard of review in these cases. (In re
J.C. (2014) 226 Cal.App.4th 503, 530-531 [Fourth Dist.]; In re K.P. (2012) 203
Cal.App.4th 614, 621-622 [Second Dist.].) Like these courts, we find the Bailey J.
approach persuasive and apply its hybrid standard of review here. In this regard,
however, we note that the juvenile court in this case assumed the existence of beneficial
sibling relationships, but concluded that any detriment suffered by F. from the
termination of those relationships was outweighed by the likely benefits of adoption.
Although the Department argues on appeal that F.’s sibling relationships were factually
insufficient to invoke the sibling exception, we, like the juvenile court below, decline to
reach that issue.
Rather, our focus is on whether the juvenile court abused its discretion in
concluding that the benefits of adoption for F. outweighed any detriment caused by
severing her relationships with her siblings. Under such circumstances, the question for
18
the reviewing court is whether the juvenile court’s application of the law to the facts was
arbitrary or capricious. (In re C.B. (2010) 190 Cal.App.4th 102, 123.) Moreover, the
abuse of discretion standard recognizes that the juvenile court’s “opportunity to observe
the witnesses and generally get ‘the feel of the case’ warrants a high degree of appellate
court deference.” (Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
B. Sibling Relationship Exception
At a permanency planning hearing, the juvenile court is charged with determining
the most appropriate permanent plan of out-of-home care for a dependent child that has
been unable to reunify. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) As the most
permanent of the available options, adoption is the plan preferred by the Legislature.
(Autumn H., supra, 27 Cal.App.4th at p. 573; see § 366.26, subd. (c)(1).) Thus, if a court
finds that a child is likely to be adopted if parental rights are terminated, it must select
adoption as the permanent plan unless it finds a “compelling reason for determining that
termination would be detrimental to the child” due to one or more of the “ ‘exceptional
circumstances’ ” specified by statute. (§ 366.26, subd. (c)(1)(B); In re A.A. (2008) 167
Cal.App.4th 1292, 1320 (A.A.).)
A single statutory exception is implicated in the present case—where
termination of parental rights would be detrimental to the child because “[t]here would be
substantial interference with a child’s sibling relationship, taking into consideration 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 party attempting to establish the existence of the exception bears
the burden of proof. (In re Megan S. (2002) 104 Cal.App.4th 247, 251.) Moreover, this
burden is a heavy one. In fact, the California Supreme Court has described the unusual
circumstances which must be present before the sibling exception may be invoked as
follows: “Reflecting the Legislature’s preference for adoption when possible, the ‘sibling
19
relationship exception contains strong language creating a heavy burden for the party
opposing adoption. It only applies when the juvenile court determines that there is a
“compelling reason” for concluding that the termination of parental rights would be
“detrimental” to the child due to “substantial interference” with a sibling relationship.’ ”
(In re Celine R. (2003) 31 Cal.4th 45, 61 (Celine R.).) Indeed, even the author of the
legislation which added the sibling exception was of the opinion that a “child’s
relationship with his or her siblings would rarely be sufficiently strong to outweigh the
benefits of adoption.” (L. Y. L., supra, 101 Cal.App.4th at p. 950.)
In the seminal case of L. Y. L., supra, 101 Cal.App.4th 942, the court laid out
guidelines for evaluating a claim that the sibling exception should be applied.
Specifically, the L. Y. L. court concluded that the Legislature intended courts analyzing
the sibling exception to “balance the benefit of the child’s relationship with his or her
siblings against the benefit to the child of gaining a permanent home by adoption.”
(L. Y. L., supra, 101 Cal.App.4th at p. 951.) In particular, “[t]he court must balance the
beneficial interest of the child in maintaining the sibling relationship, which might leave
the child in a tenuous guardianship or foster home placement, against the sense of
security and belonging adoption and a new home would confer.” (Ibid.)
The L. Y. L. court went on to propose that—when determining the applicability of
the sibling exception—a court should first “determine whether terminating parental rights
would substantially interfere with the sibling relationship by evaluating the nature and
extent of the relationship.” (Id. at pp. 951-952.) This is essentially a determination of
significance. As the court explained it: “To show a substantial interference with a
sibling relationship the parent must show the existence of a significant sibling
relationship, the severance of which would be detrimental to the child. [Fn. omitted.]
Many siblings have a relationship with each other, but would not suffer detriment if that
relationship ended. If the relationship is not sufficiently significant to cause detriment on
termination, there is no substantial interference with that relationship.” (Id. at p. 952.) If
a court finds an existing sibling relationship to be so significant that its severance would
cause detriment to the minor, the court must then go on to balance competing interests.
20
Specifically, the court must then weigh “the benefit to the child of continuing the sibling
relationship against the benefit to the child adoption would provide.” (Id. at pp. 952-
953.)
As stated above, we will assume for purposes of our decision that F.’s relationship
with her siblings was significant enough that its severance would cause her to suffer some
detriment. Although she was quite young (two years and nine months) when she was
removed from her parents’ home, she visited with Billy and James on a regular basis
throughout these dependency proceedings and she lived with C.T. in foster care for an
additional two years before C.T. chose to be placed elsewhere. Further, even after C.T.
no longer lived with her, F. saw her regularly during sibling visitation and family therapy.
Moreover, the record contains evidence of some level of bond between F. and her
siblings. And, without making a determination as to its significance, the juvenile court
did find that “there may be some love that exists between F. and her siblings” and that F.
could “suffer some initial regression” if her relationships with her siblings were severed.
The juvenile court, however, concluded that the likely benefits of adoption in F.’s case
outweighed any benefit to the minor from continuing her sibling relationships. In
reaching this conclusion, the court relied on Dr. Packer’s evaluation and further noted
that, given the “unfortunate” history of these siblings, fostering connections to their
abusive and neglectful past might not be in F.’s best interest.
Both parents argue vigorously that the juvenile court erred in weighing the
competing interests in this case. Specifically, they marshal the evidence in the record
tending to support the existence of F.’s significant and beneficial relationships with her
siblings and further contend that Dr. Packer’s analysis of the situation was legally flawed
in numerous respects. However, even if F.’s sibling relationships were significant, it is
not all clear—as both the juvenile court and Dr. Packer expressed—that she would
necessarily benefit by their continuance, either in an absolute sense or as compared to the
permanence that she could achieve through adoption. Moreover, as we discuss in detail
below, the parents’ attempts to undercut Dr. Packer’s expert opinion are all unavailing.
21
First, citing Celine R., mother and father claim that Dr. Packer improperly focused
on C.T.’s lack of attachment to F. when she should have concentrated on the impact of
the sibling relationship on F., who knew C.T. as her sister and loved her. It is true that,
pursuant to Celine R., a court analyzing the applicability of the sibling exception must
consider possible detriment to the child being adopted rather than any detriment to a
sibling. (Celine R., supra, 31 Cal.4th at p. 54.) This does not mean, however, that C.T.’s
negative attitudes towards F., her desire to live apart from her younger sibling, and her
general psychological instability were not all highly relevant to the juvenile court’s
detriment analysis. Indeed, the Celine R. court acknowledges as much, stating: “The
sibling’s relationship with the child [to be adopted] is not irrelevant. Certainly, evidence
of the sibling’s relationship with the child and, if the sibling is articulate, perhaps of the
sibling’s views of that relationship, might be relevant as indirect evidence of the effect
the adoption may have on the adoptive child.” (Id. at p. 55.) Here, C.T.’s situation and
attitude constituted strong indirect evidence that—regardless of F.’s feelings about her
sister—maintenance of the sibling relationship was not necessarily in F.’s best interests,
including her long-term emotional interests, as compared to the stability of adoption.
(See § 366.26, subd. (c)(1)(B)(v).) As Dr. Packer put it—despite F.’s sibling attachment
to C.T.—their relationship was simply not found to be “a sustaining source of security”
for the otherwise adoptable minor.
In addition, the parents argue that Dr. Packer based her changed opinion on the
fact that C.T. and F. were no longer living together when, pursuant to In re Valerie A.
(2007) 152 Cal.App.4th 987 (Valerie A.), this factor should not be deemed dispositive.
Valerie A. does state that—when determining the nature and extent of the sibling
relationship—the current situation of the siblings does not necessarily control. (Id. at
pp. 1007-1010 [“when circumstances prevent a child from living with siblings or having
regular sibling contact and visitation, the juvenile court may look to the past to determine
the nature and extent of the sibling relationship”].) However, to establish the sibling
exception to adoption, a parent must also show that, on balance, “continued sibling
contact may be of greater long-term emotional interest to the child than adoption.” (Id. at
22
p. 1010, fn. omitted.) Certainly, when weighing the sibling relationship against the
benefits of adoption, the current living situation of the siblings is a relevant consideration.
Here, Dr. Packer properly distinguished between two very different sets of circumstances.
In the past, the minors were placed together and would grow up with daily sibling
interaction, the long-term emotional impact of which might trump the permanence of
adoption. Currently, however, the siblings, pursuant to their own wishes, remained in
separate placements. Since—as the parents themselves argue and the juvenile court
properly acknowledged—post-adoption contact among siblings cannot be presumed, this
change in placement clearly altered the balance when weighing the maintenance of the
sibling relationship against the permanency of adoption and was properly considered both
by Dr. Packer and the court.
Next, the parents complain that Dr. Packer failed to consider guardianship with
F.’s current caretaker as an option. This argument, however, ignores the statutory
preference for adoption. Where, as here, a child is adoptable and the sibling relationship
is deemed insufficient to establish the sibling exception to adoption, the availability of a
possible guardianship is simply irrelevant. Indeed, Dr. Packer spoke to this point when
she testified that—in her 40 years of experience with these types of cases—she had “seen
so much better outcomes with adoption.” As she elaborated: “[Adopted] children are
not different from their peers, they are just kids with the last name of their parents. And
in guardianship, kids have to explain themselves. So I think the probability of a positive
outcome, if you have the choice of guardianship versus adoption, it’s a much more likely
good outcome with adoption.”
The parents also assert that the benefits of adoption that Dr. Packer assumed F.
would enjoy were speculative because there was no guarantee that F. would be adopted
by her current foster mother to whom she was very attached. While, of course, nothing is
certain, F.’s adoption social worker opined that she was “very” adoptable, either by her
current caretaker or in a new adoptive placement. And, in Dr. Packer’s opinion, F.
remained able to form healthy attachments with adoptive parents and the minor’s
“recovery and resilience” boded well for how she would adjust if moved to a new
23
adoptive home. Thus, the minor was generally adoptable and therefore likely to enjoy the
benefits of adoption, either in her current prospective adoptive home or in another
placement. Indeed, as father, himself, points out, “the court’s focus at a section 366.26
hearing is not upon who will adopt a dependent child but rather whether the child is likely
to be adopted if rights are terminated.” (See A.A., supra, 167 Cal.App.4th at p. 1325.)
Finally, the parents assert that—once Dr. Packer recognized that F. would suffer
detriment from terminating her sibling relationships—the fact that she could likely
resolve those issues over time in a nurturing adoptive home, even if true, did not mean
that she would not be “greatly harmed” by termination of parental rights. (See In re S.B.
(2008) 164 Cal.App.4th 289, 296-301 (S.B.) [concluding that the minor would be greatly
harmed by the loss of her “significant, positive, emotional relationship with her father”
(fn. omitted) despite the fact that she had a similar relationship with the grandmother with
whom she was placed and regardless of whether the minor’s loss might be “healed by
time and support”].) We agree with S.B. that the potential for future resolution of the
harm caused by termination of a protected relationship does not negate that harm for
purposes of establishing the significance of the relationship. However, we believe that
even “great harm” may be outweighed in a particular instance by the benefits of a
permanent, adoptive home. Indeed, as the juvenile court here acknowledged—and as is
so often true in these cases—nothing about this situation is “ideal.” Thus, F. will likely
suffer detriment of some kind no matter which permanent plan is selected for her. Under
such circumstances—and given the court’s statutory mandate to weigh the benefits from
continuing F.’s sibling relationships against the benefits of adoption—we believe it was
proper to consider the depth and pervasiveness of any detriment caused by the severing of
those relationships when assessing the relative merits of the two, admittedly imperfect,
choices before the court. This would include an assessment of the potential for that
detriment to be ameliorated over time.
In sum, the court’s reliance on Dr. Packer’s expert opinion in this case was not
misplaced. Further, Dr. Packer’s opinion—in conjunction with the substantial evidence
in the record tending to undercut the strength, quality, and supportive nature of F.’s
24
sibling relationships—amply supported the juvenile court’s conclusion that any detriment
suffered by F. from termination of her sibling relationships was outweighed by the
benefits of adoption for this young minor. We see no error and certainly no abuse of
discretion.
III. DISPOSITION
The judgment is affirmed.
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_________________________
REARDON, J.
We concur:
_________________________
RUVOLO, P. J.
_________________________
RIVERA, J.
26