In re Kailee L. CA2/7

Filed 5/16/23 In re Kailee L. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re KAILEE L., a Person B323038
Coming Under the Juvenile Court
Law. (Los Angeles County
Super. Ct. No.
18CCJP07393EF)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
AIRECA T.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Debra R. Archuleta, Judge. Affirmed.
Elizabeth Klippi, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Sally Son, Deputy County
Counsel for Plaintiff and Respondent.
_________________________
At the selection and implementation hearing the juvenile
court found eight-year-old Kailee L. and four-year-old
Ka’Darien L. were adoptable; terminated the parental rights of
their mother, Aireca T., and their alleged father, Malik L.;
identified the children’s current caregiver as their prospective
adoptive parent; and transferred custody and control of the
children to the Los Angeles County Department of Children and
Family Services for adoptive planning and placement.
Emphasizing Kailee’s bond with her nine-year-old sister,
Kadareyonna L., who was in a different placement, Aireca
contends on appeal that the juvenile court erred in finding she
had failed to establish the applicability of the sibling relationship
exception to the legislative preference for adoption (Welf. & Inst.
Code, § 366.26, subd. (c)(1)(B)(v)).1 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Dependency Determination and Termination of
Reunification Services
In June 2020 the juvenile court declared Aireca’s six
children—then-15-year-old Myeisha T., 13-year-old Airelisah T.,
11-year-old A’muria T., seven-year-old Kadareyonna, six-year-old
Kailee, and 22-month-old Ka’Darien—dependent children of the
court. Several months earlier the court had sustained the
1 Statutory references are to this code.
2
Department’s petition pursuant to section 300, subdivisions (a),
(b) and (j), alleging that Malik had physically abused the children
and Aireca knew of the physical abuse and failed to protect the
children and that Malik and Aireca had a history of domestic
violence. The children were removed from parental care and
custody;2 and the court ordered family reunification services for
Aireca, including a domestic violence program, parenting classes
and individual counseling. No services were ordered for Malik,
who denied Aireca’s identification of him as the father of
Kadareyonna, Kailee and Ka’Darien.
The six-month review hearing (§ 366.21, subd. (e)), which
began in January 2021, was not ultimately concluded until a
contested hearing, redesignated as a hearing pursuant to
section 366.22, was held in August 2021. The court found
Aireca’s progress toward completing her family reunification case
plan had not been substantial; terminated family reunification
services, which had been provided for more than 12 months; and
scheduled a selection and implementation hearing for Airelisah,
Kadareyonna, Kailee and Ka’Darien. The court declined to set a
section 366.26 hearing for Myeisha, who wanted to remain in her
current placement (where she had been since July 2020) under a
permanent placement living arrangement and to finish high
school. A home-of-parent/mother order was entered for A’muria.
2. The Section 366.26 Reports
As of the August 22, 2022 selection and implementation
hearing, Myeisha and Airelisah were placed together with the
same resource family (Ms. T.). Kailee and Ka’Darien were placed
together with Ms. A., where they had resided since May 2020.
2 The children were initially detained from Aireca in October
2019.
3
Kadareyonna was in a separate placement with Ms. M., where
she had lived since November 2019.
In its report for the hearing the Department recommended
adoption as the permanent plan for Kailee and Ka’Darien.
Ms. A., their current caregiver, was identified as their prospective
adoptive parent. Ms. A., who had known the children since
October 2019 when they were originally detained and placed in
the care of one of her relatives, also indicated she was willing to
adopt Kadareyonna. She confirmed she understood the
responsibilities of adoption and was committed to ensuring the
safety and well-being of all three children. Kadareyonna’s
current caregiver, Ms. M., in contrast, was interested only in a
legal guardianship as the permanent plan for the child.
In an earlier section 366.26 report (in December 2021) the
Department stated Kadareyonna, Kailee and Ka’Darien had a
close-knit relationship even though living in two different
placements. According to that report, “Children crave the love
and affection of each other and constantly ask [the social worker]
about siblings during monthly visits. At the end of one visit
occurring in September 2021, for example, Kadareyonna and
Kailee hugged as they said goodbye. Because of this bond, the
Department proposed that Kadareyonna, who was only one year
older than her sister Kailee, be moved to Ms. A.’s home for
adoption. The court approved and directed the Department to
develop a plan for Kadareyonna’s transition and re-placement in
Ms. A.’s home. Although Kadareyonna and Ms. M. were both
initially supportive of Kadareyonna’s move, this changed in late
2021; and Ms. M. asked that Kadareyonna remain in her care
under a legal guardianship.
4
In its August 2022 report the Department stated
Kadareyonna loved her current caregiver (Ms. M.) and felt
connected to her and the home. The report continued, “Child
wants to reside with current caregiver but feels pressure to
decide between mother and caregiver and siblings’ caregiver.
Child does not want to hurt anyone’s feelings but stated she
wants to be with her siblings and wants to go home to mother but
doesn’t want to leave caregiver’s home because she loves her and
she buys her nice things.” The Department recommended legal
guardianship as the permanent plan for Kadareyonna.3
Several months before the hearing, Aireca had a monitored
visit for three hours with all six children at a gaming/play zone
facility. According to the Department’s report, the children had a
good time “and didn’t want the visit to end. Siblings
Kadareyonna and Kailee began to cry after the visit and gave
each other a big hug and said goodbye.” An additional visit
between Kadareyonna and Kailee took place at a party for
Kadareyonna’s birthday in May 2022. The social worker noted
the children stated they could not be apart “because they love
each other so much.”
Although seeking to become Kadareyonna’s legal guardian,
Ms. M. stated she was committed to maintaining the sibling bond
among Kadareyonna, Kailee and Ka’Darien. Similarly, Ms. A.,
although still willing to adopt Kadareyonna, acknowledged the
plan for Kadareyonna was now a legal guardianship with Ms. M.
3 In its report the Department explained that Kadareyonna
was being treated for ADHD, received wraparound services and
was working with a therapist to process trauma: “Child’s
behavior continues to be sporadic and unable to determine when
she has a blowup.”
5
and confirmed her willingness to follow all court orders regarding
visitation including overnight visits.
3. The Selection and Implementation Hearing
At the selection and implementation hearing Aireca’s
counsel opposed termination of parental rights as to Kailee and
Ka’Darien, arguing the Department’s reports demonstrated the
sibling relationship exception had been established.4 Specifically,
counsel observed that Kadareyonna had reportedly used the term
“bond” to describe her relationship with Kailee and Ka’Darien,
and Kailee had stated she enjoyed spending time with
Kadareyonna. In addition, counsel quoted the social worker’s
observation that the two sisters enjoyed being together at
Kadareyonna’s birthday party in May 2022 and said they “‘can’t
be apart because they love each other so much.’’’ Acknowledging
there was evidence the caregivers would facilitate a continuing
relationship among these siblings, counsel questioned Ms. A.’s
openness to working with Ms. M. and urged the court to find legal
guardianship was the more appropriate plan for Kailee and
Ka’Darien.
In response the Department conceded that Kailee and
Ka’Darien enjoyed the time they spent with their siblings but
emphasized that the caregivers had indicated their willingness to
continue facilitating the sibling relationship. Counsel for Kailee
and Ka’Darien then advised the court that Kailee wanted to be
adopted: “She considers Ms. A[.] to be her mother and considers
placement with Ms. A[.] to be her home.” In addition, as had the
Department, counsel stressed that Ms. A. had confirmed her
4 Counsel also asserted the beneficial parental relationship
exception applied—an argument that has been abandoned on
appeal.
6
continuing willingness to maintain sibling visitation and
expressly requested “a consortium referral for sibling visitation
post adoption.”
The court found Aireca had failed to establish the sibling
relationship exception, stating, “I do not find that there is
substantial interference with the relationship between these
children [that is, Kailee and Ka’Darien] and their older siblings.
And any risk of loss of ongoing contact between these children
and their siblings is outweighed by the long-term benefit to these
children from the permanency and stability of adoption.” The
court, specifically taking into consideration the request by Ms. A.
and minors’ counsel for a referral to assist the caregivers in
maintaining the sibling bonds, concluded no exception to
adoption applied in the case of either child.
Aireca filed a timely notice of appeal.
DISCUSSION
1. The Sibling Relationship Exception: Governing Law and
Standard of Review
The express purpose of a section 366.26 hearing is “to
provide stable, permanent homes” for dependent children.
(§ 366.26, subd. (b).) If the court has decided to end parent-child
reunification services, the legislative preference is for adoption.
(See In re S.B. (2009) 46 Cal.4th 529, 532 [“[i]f adoption is likely,
the court is required to terminate parental rights, unless
specified circumstances compel a finding that termination would
be detrimental to the child”]; In re Marilyn H. (1993) 5 Cal.4th
295, 307 [once reunification efforts have been found unsuccessful,
the state has a “compelling” interest in “providing stable,
permanent homes for children who have been removed from
parental custody”].)
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When the court finds by clear and convincing evidence the
child is likely to be adopted, the statute mandates judicial
termination of parental rights unless the parent opposing
termination establishes that one of six enumerated exceptions
applies. (§ 366.26, subd. (c)(1)(B); see In re Celine R. (2003)
31 Cal.4th 45, 53 [“court must order adoption and its necessary
consequence, termination of parental rights, unless one of the
specified circumstances provides a compelling reason for finding
that termination of parental rights would be detrimental to the
child”]; see also In re Caden C. (2021) 11 Cal.5th 614, 630-631 [“if
the parent shows that termination would be detrimental to the
child for at least one specifically enumerated reason, the court
should decline to terminate parental rights and select another
permanent plan”].) The statutory exceptions are applicable only
in “exceptional circumstances”; adoption remains the norm.
(In re Caden C., at p. 631 [“‘[t]he statutory exceptions merely
permit the court, in exceptional circumstances [citation], to
choose an option other than the norm, which remains adoption’”];
In re Celine R., at p. 53 [same]; see In re Matthew C. (1993)
6 Cal.4th 386, 392 [when a child is adoptable and declining to
apply one of the statutory exceptions would not cause detriment
to the child, the decision to terminate parental rights is relatively
automatic].)
The sibling relationship exception to termination of
parental rights and placement for adoption—one of the
six statutory exceptions—applies when the juvenile court
concludes there 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
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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 purpose of the sibling exception is to preserve long-
standing sibling relationships that serve as ‘anchors for
dependent children whose lives are in turmoil.’” (In re
Elizabeth M. (2018) 19 Cal.App.5th 768, 781; accord, In re
Isaiah S. (2016) 5 Cal.App.5th 428, 437.) “‘To show a substantial
interference with a sibling relationship the parent [or sibling
granted standing] must show the existence of a significant sibling
relationship, the severance of which would be detrimental to the
child. 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.’” (In re Elizabeth M., at p. 781; accord, In re L.Y.L.
(2002) 101 Cal.App.4th 942, 952.)
“The sibling bond exception is evaluated from the
perspective of the child who is being considered for adoption, not
the perspective of that child’s siblings.” (In re D.O. (2016)
247 Cal.App.4th 166, 174; see In re Celine R., supra, 31 Cal.4th at
p. 55 [“the ultimate question is whether adoption would be
detrimental to the adoptive child, not someone else”];5 In re
5 The Celine R. Court acknowledged the sibling’s relationship
with the child was not irrelevant, recognizing that “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
9
Naomi P. (2005) 132 Cal.App.4th 808, 822 [“the concern is the
best interests of the child being considered for adoption, not the
interests of that child’s siblings”].) “The 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.”
(In re L.Y.L., supra, 101 Cal.App.4th at p. 951; accord, In re
Elizabeth M., supra, 19 Cal.App.5th at p. 781; In re D.M. (2012)
205 Cal.App.4th 283, 293.)
The parent has the burden of proving the statutory
exception applies. (In re Caden C., supra, 11 Cal.5th p. 625; In re
Elizabeth M., supra, 19 Cal.App.5th at p. 781.) The court’s
decision a parent has not carried this burden may be based on
either or both of two component determinations—whether a
beneficial sibling relationship exists and whether the existence of
that relationship constitutes “a compelling reason for
determining that termination would be detrimental to the child.”
(§ 366.26, subd. (c)(1)(B); see In Elizabeth M., at pp. 781-782.)
We review the juvenile court’s finding the parent has not
established the existence of the requisite beneficial relationship
under the substantial evidence standard. (See In re Caden C.,
supra, 11 Cal.5th at pp. 639-640; cf. In re R.V. (2015) 61 Cal.4th
181, 200-201 [“[t]here is, however, no single formulation of the
may have on the adoptive child.” (In re Celine R., supra,
31 Cal.4th at p. 55.) Nonetheless, the Court held, “Nothing in the
statute suggests the Legislature intended to permit a court to not
choose an adoption that is in the adoptive child’s best interest
because of the possible effect the adoption may have on a sibling.”
(Id. at p. 54.)
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substantial evidence test for all its applications”; where a party
fails to meet its burden on an issue in the juvenile court, “the
inquiry on appeal is whether the weight and character of the
evidence . . . was such that the juvenile court could not
reasonably reject it”].) When the juvenile court concludes the
benefit to the child derived from preserving the sibling
relationship is not sufficiently compelling to outweigh the benefit
achieved by the permanency of adoption, we review that
determination for abuse of discretion. (See In re Caden C., at
p. 640; In re Elizabeth M., supra, 19 Cal.App.5th at p. 782.)
2. The Juvenile Court Did Not Err in Finding the Sibling
Relationship Exception Did Not Apply
There seems little doubt a strong sibling relationship exists
between nine-year-old Kadareyonna and her only slightly
younger sister Kailee, as evidenced by the Department’s
subsequently abandoned plan to have Kadareyonna moved to
Ms. A.’s home for adoption together with Kailee and Ka’Darien
and by Kadareyonna and Kailee’s tearful embraces at the end of
their visits. The record, however, is devoid of any meaningful
evidence of the significance or benefit to four-year-old Ka’Darien
of his relationship with Kadareyonna or his other, even older
siblings.6 Aireca thus failed to establish even the first element of
the sibling relationship exception for her young son.
As for Kailee, the court acted well within its discretion in
determining the impact of terminating Aireca’s parental rights on
Kailee’s relationship with Kadareyonna or her other siblings did
not outweigh the benefits of being adopted by Ms. A. along with
6 Ka’Darien was one when detained from Aireca in October
2019 and had lived with Kailee in six different placements before
the two of them came to Ms. A.’s home in May 2020.
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her younger brother. Although the two children were six- and
five-years-old when detained from Aireca in October 2019, and
thus shared their toddler years together, as of the August 22,
2022 hearing, Kadareyonna and Kailee had been living in
different placements for more than two years. Yet despite their
separation they managed to maintain their positive sibling
relationship because of their caregivers’ understanding of the
importance of allowing them to visit with each other. And while
the record indicated that Ms. A. and Ms. M. had a falling out in
late 2021 and, apparently as a result, the frequency of visits
decreased thereafter,7 both caregivers expressed their willingness
to continue to facilitate sibling visitation following the court’s
decisions on the appropriate permanent plans for the children.
The juvenile court properly relied on these facts and
Ms. A.’s desire to formalize postadoption visitation through a
consortium referral in determining Kailee’s adoption would not
unduly disrupt her relationship with Kadareyonna. (See
§§ 366.29, subd. (a) [“When a court, pursuant to Section 366.26,
orders that a dependent child be placed for adoption, nothing in
the adoption laws of this state shall be construed to prevent the
prospective adoptive parent or parents of the child from
expressing a willingness to facilitate postadoptive sibling contact.
With the consent of the adoptive parent or parents, the court may
include in the final adoption order provisions for the adoptive
parent or parents to facilitate postadoptive sibling contact”],
16002, subd. (e)(1) [if parental rights are terminated and the
7 In the approximately 10 months between the caregivers’
disagreement and the selection and implementation hearing,
Kadareyonna and Kailee had three visits—in December 2021,
March 2022 and May 2022.
12
court orders a dependent child to be placed for adoption, the
county adoption agency must take certain enumerated steps to
facilitate ongoing sibling contact except were the court
determines by clear and convincing evidence that sibling
interaction would be contrary to the safety or well-being of the
child]; In re D.O., supra, 247 Cal.App.4th at p. 176 [juvenile court
properly considered caregiver’s assurance of future sibling visits
when determining sibling relationship exception did not apply];
see also In re Celine R., supra, 31 Cal.4th at p. 55 [“[w]hen
appropriate, court can encourage the adoptive parents to agree to
visits among the siblings”].)
Balanced against Aireca’s speculative concern that the
caregivers might not honor their commitment to maintain
postadoptive visitation, the record before the juvenile court
demonstrated the long-term significance to Kailee (and to
Ka’Darien) of the stability and permanence that adoption
afforded. Kailee was bonded to Ms. A., called her “Mom,” and
expressed through her counsel her desire to be adopted by Ms. A.
After experiencing multiple placements (primarily because of
Ka’Darien’s behavioral issues), Kailee’s mental and emotional
health had steadily improved under Ms. A.’s two years of care.
Moreover, as Aireca has acknowledged, Kailee has a strong
sibling relationship with Ka’Darien; and it was to their mutual
benefit to remain together. Accordingly, the court’s decision to
terminate Aireca’s parental rights to Ka’Darien and to identify
Ms. A. as his prospective adoptive parent reinforced the benefits
to Kailee of being adopted by that same individual. (Cf. In re
Elizabeth M., supra, 19 Cal.App.5th at p. 783 [“The evidence
demonstrated the two girls, who had been in multiple foster
placements during their short lives, were now thriving in a stable
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placement and had developed a strong emotional bond with their
current caregivers, who had been approved to adopt them. In
light of the girls’ significant interest in maintaining that home,
the court was fully justified in finding the sense of security and
belonging that adoption would bring outweighed any possible
disruption in Elizabeth and Gail’s relationship with their
brothers, Shawn, Jr., and Michael”].) It was neither arbitrary
nor irrational for the court to conclude this was not one of those
rare cases where the very real benefits of adoption did not
outweigh any potential detriment the adoptive child might suffer
should her sibling relationship with her sister be impaired. (See
In re Daisy D. (2006) 144 Cal.App.4th 287, 293 [“‘[t]he author of
the legislation adding the sibling relationship exception
anticipated that ‘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’”]; In re D.O., supra, 247 Cal.App.4th at p. 174 [same].)
DISPOSITION
The juvenile court’s August 22, 2022 orders are affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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