In re J.K.

 

 

 

 

 

 

 

 

Filed 5/30/13  In re J.K. CA2/3

 

 

 

 

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

SECOND APPELLATE
DISTRICT

 

DIVISION THREE

 

 
>

In re J. K., a Person Coming Under the Juvenile Court Law.	B244297
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,               Plaintiff and Respondent,               v.   JAMES K.,               Defendant and Appellant.	(Los Angeles County       Super. Ct. No. CK77075)

 

 

            APPEAL
from orders of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Margaret S. Henry, Judge.  Affirmed.

            Marsha
F. Levine, under appointment by the Court of Appeal, for Defendant and
Appellant.

            John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.

_________________________

INTRODUCTION

            James
K, father of 9-year-old J. K., appeals from the orders of the juvenile court
denying his petition for modification
(Welf. & Inst. Code, § 388)href="#_ftn1"
name="_ftnref1" title="">[1]
and terminating his parental rights (§ 366.26). 
We affirm.

FACTUAL
AND PROCEDURAL BACKGROUND

            1.  The
section 300 petition

In May 2009, when
J. was four years old, her 22-year-old sister C. took her to the hospital to be
examined after J. announced she did not want to return to James’s house because
he put his “thingy in her mouth, booty . . . he attempted
to put his penis in her vagina.”  During
this time, the child’s mother was hospitalized from a stroke that left her
unable to speakhref="#_ftn2" name="_ftnref2"
title="">[2]> and J. had been visiting C.  The Department of Children and Family
Services (the Department) detained J. and placed her with C.

            Early
in the dependency, J. did not want to see James during visits, explaining she
was still James’s “ â€˜friend,’ â€ but she would cease to be if he
“ â€˜does that again.’ â€  James’s
conduct during visits appeared to make J. “nervous,” “stiff,” and “rigid,” and
the monitor was obliged to redirect his behavior.  Unsolicited, J. volunteered to the children’s
social worker that she liked visiting with James and loved him, and “ â€˜he
only does that at night time.’ â€ 
Asked what she meant, J. responded, “ â€˜he touched my
cuca.’ â€  She added, “ â€˜he
didn’t want to do it, but he did.’ â€ 


            The
juvenile court sustained a petition alleging James sexually abused J. and
mother was unable to provide care and supervision for the child because of
health problems.  (§ 300, subds. (b)
& (d).)  The court ordered James to
complete a parenting education course and individual counseling with a licensed
therapist to address sexual abuse.  The
court awarded James monitored visits. 
Four months later, the court added a sexual abuse treatment program to
James’s case plan.  The Department placed
J. with her maternal aunt, Rochelle T., in mid-2009.

            2.  The
reunification period

            By
the six-month review hearing (§ 366.21, subd. (e)), James had completed a
parenting education program.  A year into
the dependency (§ 366.21, subd. (f)), James stopped attending counseling after
completing only 17 sessions.  During that
year, James was reportedly compliant with attendance and participation in
therapy.  He expressed an understanding
of the legal, social, and psychological consequences of sexual abuse and
believed sexual abuse was unacceptable and problematic.  He stated he did not intend to touch J. in a
sexual manner and understood his role as a father.  Nevertheless, his therapist was concerned
about James’s lack of appropriate boundaries with women.  James made inappropriate comments of a sexual
nature to both his therapist and the children’s social worker, and he engaged
in sexual behavior with mother while she was hospitalized and unable to speak
or function normally.  Hence, the
therapist declined to make any recommendation about James’s visitation with, or
custody of, J.

            As
for visits, James displayed both appropriate behavior and inappropriate
physical boundaries.  For example, James
sat J. in the crotch area of his lap and engaged in excessive petting, stroking
her buttocks, and attempting to lick her neck. 
Although he complied when the monitor asked him to refrain from this
behavior, he told J. that the reason was that “ â€˜they won’t let you.’ â€ 
(Italics added.)  In the social
worker’s view, James had no insight about what constituted appropriate physical
boundaries.  He claimed that licking J.’s
neck was “ â€˜just a game we play.’ â€ 


            James
continued to engage in inappropriate behavior during visits nine months into
the dependency.  J. was sometimes relaxed
and sometimes stiff around him.  James
did not understand why it was inappropriate to have J. hang onto him and stand
between his legs.  Fourteen months into
the dependency, Rochelle reported that J. acted out at times because she did
not want to go home with James.  Eighteen
months into the dependency, J. told the social worker she liked visiting James
but would like to remain living with Rochelle where she was happy.

In advance of the
18-month review hearing (§ 366.22), James announced he did not need to do
anything else to get his daughter back. 
He claimed he had done “everything” he was supposed to do, did not want
to go to any more therapy, and did not need to participate in substance abuse
counseling.  He failed to acknowledge
J.’s sex abuse allegations and did not see that there was a problem with his
having fondled his paralyzed wife during his visits with her in the hospital.  Between May 2010, when he ceased therapy, and
October 30, 2010, the 18-month mark, James contacted his therapist on only
three occasions.  For these reasons, the
Department opined there remained a substantial risk if J. were returned to
James’ custody.

James’ therapist
repeated her earlier concerns about James’s inappropriate boundaries with
women.  Asked about James’s ability to
interact appropriately with J., his therapist responded only that she would> like to see James continue therapy and
learn appropriate play with J. 
Although the therapist had recommended conjoint therapy for J. and
James, she opined that such therapy should be postponed as the child’s mother
had recently passed away.

            At
the 18-month review hearing, the juvenile court ordered the Department to
initiate an adoptive home study, terminated reunification
services, and set the permanent plan review hearing (§ 366.26). 

            3.  Post
reunification

            J.
was doing well and appeared happy with Rochelle, who wanted to adopt the
child.  J. and Rochelle were bonded and
Rochelle treated J. like her own child. 
Rochelle met J.’s needs and gave her unconditional love and provided a
nurturing environment.  The child had
completed her psychotherapy.  She enjoyed
visits with James and displayed no indication of fear.  

            James
was upset that J. had been placed with Rochelle as he and Rochelle do not get
along.  James attended a total of 29
counseling sessions in 18 months.  His
participation in therapy was intermittent because of finances, but he kept in
contact with his counselor and could resume therapy if he had to.  Although James was willing to develop sexual
boundaries, his therapist could not recommend J. be returned to James’s custody
as James’s past behaviors had not “been fully cleared.”  The therapist indicated that James had very
poor impulse control and so the therapist doubted James had actually learned
skills in his parenting program. 

            4.  James’s
section 388 petition

            In
May 2012, three years after J. was detained, James filed a section 388 petition
requesting that J. be returned to his custody or that he be given additional
reunification services.  He alleged he
had attended 44 individual therapy sessions and had “learned the importance of
healthy boundaries with J. and [] am able to put these skills into
practice.”  The proposed modification
would be in J.’s best interest, he asserted, because she would benefit from an
ongoing relationship with him as he had been visiting every week and the two
shared a strong bond.  He attached an
undated letter from his therapist “in support of [James’s] petition for his
daughter . . . to be
placed in [a] guardianship with a responsible adult, rather than go through
the process of adoption.”  (Italics
added.)  The therapist reported that
James had taken breaks from therapy but has “indicated engagement in all themes discussed” during therapy.  (Italics added.)  James reportedly expressed an understanding
of how sexual abuse damaged children and the ways it contributed to problems in
families and society.  The therapist
stated that James showed a sense of responsibility toward his children and
appeared to be able to continue to be respectful and dedicated to all of them.  The therapist explained she witnessed more
than one telephone call between James and J. that seemed unplanned and
unrehearsed, during which J. expressed appropriate affection and trust.  The therapist explained that “[d]uring this
time[, James’s] past behaviors have not been fully clear to me, and for that
reason I have not been fully prepared to advocate for him to be granted full
custody of J.”

            At
the combined section 388 and section 366.26 hearing held in September 2012,
James’ therapist testified that James had learned what the boundaries
were.  James had become more open about
his childhood and relationships with his family and had worked on his anger and
impulse control.  The therapist had never
met J. but had heard the child, over the telephone, ask James when she was
going to see him.  The therapist opined
that James and J. had a healthy, trusting relationship and that he would
respect her.  The therapist felt >James would benefit from conjoint
therapy with J. because such therapy would facilitate conversations about the
abuse in a monitored setting.

            The
juvenile court denied James’s section 388 petition on the ground, although
James and J. loved each other, that it was in her best interest to have
permanence with the person who had become her mother and had been her stability
for three years.

            Turning
to the permanent planning hearing, the court found J. was likely to be adopted
and no exception to adoption applied. 
Although there was a benefit to J.’s continued relationship with James,
the benefit really inured to James rather than to J.  The court found the benefit to J. of their
relationship did not outweigh the benefit of permanence that adoption would
give her.  The court terminated parental
rights and James filed his appeal.

DISCUSSION

1.  The
juvenile court did not abuse its discretion in denying James’s section 388
petition.

“Under section
388, a parent may petition the court to change, modify, or set aside a previous
court order.  The petitioning party has
the burden of showing, by a preponderance of the evidence, that [(1)] there is
a change of circumstances or new evidence, and [(2)] the proposed modification
is in the minor’s best interests. [Citations.]” 
(In re S.M. (2004) 118
Cal.App.4th 1108, 1119.)  “It is not
enough for a parent to show just a
genuine change of circumstances under the statute.  The parent must show that the undoing of the
prior order would be in the best interests of the child.  [Citation.]” 
(In re Kimberly F. (1997) 56
Cal.App.4th 519, 529.)  A petition under
section 388 is addressed to the juvenile court’s sound discretion and on appeal
we will disturb the decision only on a clear showing of abuse of that
discretion.  (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)

            Apart
from whether he has shown a change of circumstances, James has not demonstrated
the second prong of the section 388 test, namely how returning J. to his care
or granting him additional reunification services would be in the child’s best
interest.  Among the factors juvenile courts consider in
determining whether a proposed change of order is in the children’s best
interest are:  (1) “the seriousness of
the problem which led to the dependency, and the reason for any continuation of
that problem;” (2) â€œthe degree to which the problem may be easily removed
or ameliorated, and the degree to which it actually has been,” and (3) “the
strength of relative bonds between the dependent children to >both parent and caretakers.”  (In re
Kimberly F., supra, 56 Cal.App.4th at p. 532.) 

            Turning
to the first and second factors (In re
Kimberly F., supra, 56 Cal.App.4th at p. 532), manifestly sexual
abuse, the cause of this dependency, is an extremely serious problem.  The problem has not been ameliorated in the
three years of this dependency.  James
has only intermittently attended therapy, with the result his own therapist’s
letters in support of James’ section 388 petition did not recommend J. be returned to James’s custody.  The only recommendation was conjoint
counseling in a monitored setting because it would benefit James, signaling that the therapist does not believe this
problem has been removed or ameliorated.

            The
third factor, “the strength of relative bonds between the dependent children to
both parent and caretakers” (>In re Kimberly F., supra, 56 Cal.App.4th
at p. 532), does not favor James. 
Although J. and he have a close relationship, with Rochelle, the child
is happy and doing well.  J. has been
with Rochelle for nearly half of the child’s life, receives unconditional love,
and is no longer in need of psychotherapy. 
James has not demonstrated that it would be in J.’s best interest to
return her to his custody.

            Nor
has he demonstrated that it would be in J.’s best interest to grant James
additional reunification services, the alternative order he requested in his
section 388 petition.  “After the
termination of reunification services, a parent’s interest in the care, custody
and companionship of the child is no longer paramount.  [Citation.] 
Rather, at this point, the focus shifts to the needs of the child for
permanency and stability. 
[Citation.]”  (>In re Angel B. (2002) 97 Cal.App.4th
454, 464.)  “[O]n the eve of the section
366.26 permanency planning hearing â€‘ the children’s interest in
stability was the court’s foremost concern and outweighed any interest in
reunification.  [Citation.]”  (In re
Edward H. (1996) 43 Cal.App.4th 584, 594.) 
“In fact, there is a rebuttable presumption that continued foster care
is in the best interest of the child [citation]; such presumption obviously
applies with even greater strength when the permanent plan is adoption rather
than foster care.  A court hearing a
motion for change of placement at this stage of the proceedings must recognize
this shift of focus in determining the ultimate question before it, that is,
what is in the best interest of the child. 
[Citation.]”  (>In re Angel B., supra, at
p. 464.)  Where J. has been with
Rochelle for nearly half of her life, and where James has neither complied with
his case plan during the reunification period, nor addressed the cause of the
dependency in therapy, the prospect of an additional reunification period
simply would not have promoted stability for J. and therefore would not be in
her best interest. 

James argues that
because Rochelle does not want to maintain contact with James, it is unlikely
that J.’s relationship with him will survive. 
Yet, as noted, the focus at this stage is on what is in >J.’s best interest, not what is in
James’s interest.  The juvenile court did
not err. 

2.  The
evidence supports the juvenile court’s finding that the parental-relationship exception
to adoption did not apply.

At the permanency
planning hearing, the juvenile court must order one of three dispositional
alternatives: adoption, guardianship, or long-term foster care.  (In re
S.B. (2008) 164 Cal.App.4th 289, 296-297.) 
The Legislature has declared a strong preference for adoption over the
alternative plans if the dependent child is adoptable.  (Id. at
p. 297.)  Thus, the statute directs, if
the court finds that the child is adoptable, “the court shall terminate parental rights unless” the court “finds a
compelling reason for determining that termination would be detrimental to the
child due to” one of the six delineated exceptions.  (§ 366.26, subd. (c)(1) & (c)(1)(B),
italics added.)  Only if a compelling
reason for applying an exception appears may the court select a plan other than
adoption. 

            The
exception to adoption on which James relies is that found in section 366.26,
subdivision (c)(1)(B)(i), the so-called parental-relationship exception.  This exception applies when the court finds
that (1) “[t]he parents have maintained regular visitation and contact with the
child and [(2)] the child would benefit from continuing the relationship.”  (§ 366.26, subd. (c)(1)(B)(i).)  As the parent, James bears the burden to show
application of this exception.  (>In re Megan S. (2002) 104 Cal.App.4th
247, 251.) 

            “A beneficial relationship is one
that ‘promotes the well-being of the child to such a degree as to outweigh the
well-being the child would gain in a permanent home with new, adoptive
parents.’  [Citation.]”  (In re
Amber M. (2002) 103 Cal.App.4th 681, 689.)  The
existence of this beneficial parental relationship “is determined by ‘[t]he age
of the child, the portion of the child’s life spent in the parent’s custody,
the “positive” or “negative” effect of interaction between parent and child,
and the child’s particular needs . . . .’  [Citation.]” 
(In re Jerome D. (2000) 84
Cal.App.4th 1200, 1206.)

            In applying the exception, courts “balance[] the
strength and quality of the parent-child relationship in a tenuous placement
against the security and sense of belonging that a stable family would confer
on the child.”  (In re B.D. (2008)
159 Cal.App.4th 1218, 1234-1235.) 
“[I]f severing the existing parental relationship would deprive the
child of ‘a substantial, positive emotional attachment such that the child
would be greatly harmed, the
preference for adoption is overcome and the natural parent’s rights are not
terminated.’  [Citation.]  In other words, if an adoptable child will
not suffer great detriment by
terminating parental rights, the court must select adoption as the permanency
plan.  [Citation.]”  (In re
Dakota H. (2005) 132 Cal.App.4th 212, 229, italics added.)

            The precise standard of review
applicable to an appeal of a juvenile court ruling concerning this exception to
adoption is in some dispute.  (>In re Bailey J. (2010)
189 Cal.App.4th 1308, 1314, citing In
re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)  The Bailey
J. court concluded both the sufficiency-of-the-evidence and the
abuse-of-discretion standards apply.  (>In re Bailey J., supra, at pp. 1314-1315.) 
The substantial evidence standard of review applies to the question of
whether a beneficial parental relationship exists.  (Id.
at p. 1314.)  “[A] challenge to a juvenile
court’s finding that there is no beneficial relationship amounts to a
contention that the ‘undisputed facts lead to only one conclusion.’  [Citation.]” 
(Ibid., quoting from >In re I.W. (2009) 180 Cal.App.4th
1517, 1529.) 

            The parental-relationship exception
to adoption also requires the court to determine whether the parental
relationship constitutes a “compelling reason for determining that termination
[of parental rights] would be detrimental.” 
(§ 366.26, subd. (c)(1)(B).) 
That assessment is “a ‘quintessentially’ discretionary decision, 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. 
[Citation.]  Because this
component of the juvenile court’s decision is discretionary, the abuse of
discretion standard of review applies.” 
(In re Bailey J., >supra, 189 Cal.App.4th at p. 1315.)

            Applying these principles here, although
James did have regular
and ongoing visitation with J., the juvenile court did not abuse its discretion
in determining that the relationship James had with J. was not so beneficial to
the child that she would suffer a great detriment by terminating James’s
parental rights.  First, the evidence
supports the court’s findings that James never advanced to unsupervised visits,
meaning J. was never deemed safe in his care. 
His therapist, who never met J., did not recommend that James
have custody of the child.  Second, J. has been living
with Rochelle for almost as long as she had lived with James.  During the time J. was in James’ custody, he
sexually abused her.  Indeed, he
continued to engage in inappropriate behavior with J. even during the
reunification period.  Although J.
enjoyed her visits with James, she was also periodically uncomfortable.  James appeared to have no insight into why
his behavior was inappropriate even while he reportedly claimed to
understand how sexual abuse damaged children and contributed to problems in
families and society.  Meanwhile, as noted, J. is
bonded with Rochelle and has clearly expressed a preference for remaining with
her aunt.  The child’s needs are being
met and Rochelle is nurturing to such an extent that J. no longer requires
psychotherapy.  For the foregoing
reasons, the juvenile court did not abuse its discretion in ruling that James’
relationship with J. does not benefit the child sufficiently to outweigh the
strong preference for adoption and the permanence and stability it provides.

            James argues the impact on J. of this ruling is unknown
and so it cannot be said that it is substantially outweighed by the permanence
of adoption.  He then surmises
that J. will be irreparably harmed if she never saw him again.  As the parent James had the burden to show that J. would
benefit from continuing a relationship with him.  (In re
Megan S., supra,
104 Cal.App.4th at p. 251.)  He does
not carry this burden by arguing the impact on J. is unknown.  In any event, “[i]nteraction
between natural parent and child will always confer some incidental benefit to
the child.”  (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)  Yet, “[a] biological parent who has failed to reunify with an
adoptable child may not derail an adoption merely by showing the child would
derive some benefit from continuing a
relationship maintained during periods of visitation with the parent.  [Citation.]” 
(In re Angel B., >supra, 97 Cal.App.4th at
p. 466.)  “[I]t is only in an
extraordinary case that preservation of the parent’s rights will prevail over
the Legislature’s preference for adoptive placement.”  (In re
Jasmine D., supra,
78 Cal.App.4th at p. 1350.)  James
has not demonstrated that this is such a case. 
J. and James have a connection. 
However, the therapist’s letter supports the juvenile court’s conclusion
that James would be the one to benefit from continued contact.  In short, James has not demonstrated that his
relationship with the child is sufficiently positive to outweigh the benefit J.
derives from the permanence and stability of adoption.href="#_ftn3" name="_ftnref3" title="">>[3] 

DISPOSITION

            The
orders are affirmed.

 

            >NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

 

 

 

                                                                                    ALDRICH,
J.

 

 

We concur:

 

 

 

 

                        KLEIN,
P. J.

 

 

 

 

                        CROSKEY,
J.