In re J.T.

 

 

 

 

 

 

 

 

 

 

Filed 12/9/13  In re J.T. CA4/3

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 

 
>

In re J.T., a Person Coming Under the Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES AGENCY,         Plaintiff and Respondent,               v.   A.T.,         Defendant and Appellant.	G048594            (Super. Ct. No. DP021913)            O P I N I O N

 

                        Appeal from an order of
the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Deborah C. Servino, Judge.  Affirmed.

                        Daniel G. Rooney, under
appointment by the Court of Appeal, for Defendant and Appellant.

                        Nicholas S. Chrisos, County
Counsel, and Karen L. Christensen,
Deputy County Counsel, for Plaintiff and Respondent.

                        No appearance for Minor.

*               
*                *

> 

>Introduction

J.T., who was born in September
1999, was taken into protective custody
when his father, A.T. (Father), was arrested on charges he sexually abused
J.T.’s half sister, D.U.  J.T.’s mother,
M.U. (Mother), successfully completed a case plan, and, following a hearing
under Welfare and Institutions Code section 364href="#_ftn1" name="_ftnref1" title="">[1]
(further code references are to the Welfare and Institutions Code), the
juvenile court terminated dependency proceedings.  Pursuant to section 362.4, the court issued
final custody orders, giving Mother full legal and physical custody of J.T. and
denying Father visitation rights.

Father
challenges the final custody order denying him any right of visitation with
J.T.href="#_ftn2" name="_ftnref2" title="">[2]  We conclude the juvenile court did not err by
denying Father visitation rights, and therefore affirm.

 

Background and Procedural
History

I.  The Juvenile Dependency
Petition and Detention Order

In
November 2011, Father was arrested for sexually abusing D.U., his
stepdaughter.  On the day Father was
arrested, J.T. and D.U. were taken into protective custody based on allegations
of sexual abuse. 

The
Orange County Social Services Agency
(SSA) filed a juvenile dependency petition (the Petition) alleging one count
each of failure to protect (§ 300, subd. (b)) and sexual abuse
(§ 300, subd. (d)).  The
Petition alleged that Father had sexually abused D.U., who was born in March
1996, about seven to eight times a month since she was five years old.  The Petition alleged that in November 2010,
D.U. disclosed the sexual abuse to Mother, but Mother failed to report the
matter to law enforcement, did not confront Father, and thereafter allowed D.U.
to have unsupervised contact with Father. 
The Petition alleged that Father physically abused J.T. and, on one
occasion, locked J.T. in his room and hit him with a belt as punishment for bad
grades.  The Petition also alleged that
Father and Mother engaged in domestic violence, in the form of verbal abuse, in
the presence of J.T. and D.U. 

The
juvenile court ordered that both J.T. and D.U. be detained and that SSA provide
reunification services.  Father was
granted visitation with J.T. “per jail regulations” while Father was in
custody, and a minimum of two‑hour, twice‑weekly, monitored visits
once released from custody. 

 

II.  Social Worker Interviews and
Jurisdictional Hearing

In
December 2011, J.T. met with the assigned social worker.  J.T., who did not know the purpose of the
meeting, said that living in his home was “good,” except when Mother and Father
became angry and disciplined him.  When
asked what he liked least about his family, J.T. responded:  “Them (Referring to [M]other and [F]ather),
like fighting.  I don’t want them to get
a divorce or separate.”  J.T. had not
seen anyone sexually abuse D.U.  He
confirmed that Father struck him and D.U. with a belt, a sandal, or his hands,
to punish them.  J.T. reported that
Mother and Father argued, sometimes loudly, and, on one occasion a long time
ago, Father tried to strike Mother.  D.U.
stopped Father from hitting Mother, and the police arrived later.  According to J.T., Father drank alcohol every
day, but only got drunk once.  When
drinking, Father would get angry “for any little thing.”

The
social worker also met with D.U.  She
described living in the home as a “living hell!”  D.U. stated that Father began sexually
abusing her when she was about five years old. 
When asked how often Father abused her, D.U. answered:  “It was continuous, he did it every time he
had a chance, sometimes when we were alone or even when my mom was there, but
she wasn’t watching, he would grab my butt or squeeze my boob.”  Father engaged in sexual intercourse and
digital penetration with D.U. and had once attempted sodomy.  Father threatened D.U. by telling her he
would “rape [her] real bad, something that [she] would never forget” if she
told the police.  D.U. eventually told
Mother, who was protective of her for a few months, and then “it went back to
the same way it was before.”  D.U. became
desperate and “told the school.”  D.U.
described Father as an “alcoholic” and stated he became “aggressive” when he
drank too much. 

At
the jurisdictional hearing, the juvenile court found the allegations of the
Petition to be true by a preponderance of the evidence and declared J.T. and D.U.
to be dependent children of the juvenile court. 
The court approved SSA’s case plan, granted reunification services for
Mother, and denied them for Father.  The
frequency of J.T.’s visits with Father was changed to twice monthly while he
remained in local custody.  Visits
remained monitored.

 

III.  J.T.’s Visits with Father

The
status review report, dated July 10, 2012, reported that Mother’s progress
in completing the case plan was moderate as to D.U. and substantial as to J.T.  D.U. was residing in a foster home, and J.T.
was living in a group home.

J.T.
visited Father on December 13, 2011. 
J.T. told the case manager the visit “went ‘ok’ and ‘he didn’t have
anything to talk about [with] him.’”  J.T.
also visited Father on January 24, February 7 and 28, March 13,
April 3, May 1, and June 22 and 23, 2012.  As to the March 13 visit, the July 10,
2012 status review report stated:  “[I]t
is important to note that at this visit, [F]ather was noted as saying ‘I love
you’ in Spanish and J[.T.]’s response was ‘Me too.’”  J.T.’s court‑appointed special advocate
(CASA) also prepared a report stating that J.T. usually visits Father twice a
month.

J.T.
participated in weekly sexual abuse therapy. 
His therapist reported that J.T. did not know, and did not want to know,
why the family was involved with SSA. 
J.T. talked about his visits with Father and “appear[ed] to be connected
with [F]ather.”  The therapist encouraged
J.T. to write Father a letter, but J.T. “was not interested in completing [the]
task.”  A report, dated February 21,
2012 from the Olive Crest Tustin Family Center, stated that J.T. “displays
minimal interest when visiting [F]ather at jail visiting for an approximate of
10‑15 minutes when he has been allotted for an approximate 30 minutes
visitation period.  J[.T.] has stated
that he has nothing to talk to [F]ather about.”

J.T.
expressed the desire to continue visits with Father.  Mother told the social worker, however, that
she did not want J.T. to continue visits with Father.  According to Mother, Father would tell J.T.
“he was the man of the house and he had to be just like him.”  Mother feared that Father would have a
negative influence on J.T. 

On
July 10, 2012, based on the parties’ stipulation, the juvenile court
ordered continued reunification services for Mother.  The court amended Father’s visitation plan to
allow twice‑monthly, one‑hour visits with J.T. and authorized SSA
to facilitate three makeup visits.

 

IV.  Interim Review Reports on
J.T.’s Visits with Father

In
September 2012, J.T. was returned to Mother’s care under a 60‑day trial
visit.  In December 2012, SSA recommended
that both J.T. and D.U. be placed in Mother’s custody.  J.T. continued attending href="http://www.sandiegohealthdirectory.com/">individual therapy.  An interim review report, dated November 5,
2012, stated:  “At this time, the family
appears to be responding well to the supportive services implemented.  There have been no concerns noted during this
initial 60‑Day Trial period.  The
family is demonstrating a healthy relationship. 
[M]other continues to demonstrate a willingness to comply and cooperate
with [SSA].”

An
interim review report, dated December 5, 2012 (the December 5 Report),
stated:  “[J.T.] continues to attend
individual therapy.  [He] reports
enjoying therapy and wants to continue.” 
J.T.’s therapist reported having no concerns or problems with J.T.

As
for J.T.’s visits with Father, the December 5 Report stated:  “J[.T.] continues to want to visit with
[F]ather.  However, [M]other requests
that the visits be stopped as [M]other reports that [F]ather is emotionally
manipulating [J.T.].  [M]other reported
that [F]ather recently wrote [J.T.] letters and mailed them to the home.  [F]ather wrote about not [faring] well while
incarcerated.  As previously reported to
the court on November 5, 2012, [M]other reported that on one occasion when
the child returned from a visit [F]ather requested that [J.T.] purchase him a
pair of reading glasses.  The undersigned
asked [J.T.] if [F]ather asked him for a pair of reading glasses and [J.T.]
stated, ‘Yes.’”

The
December 5 Report included a report from a visitation monitor on J.T.’s
visit with Father on October 29, 2012. 
The visit took place at the Orange County Central Men’s Jail.  When the monitor picked up J.T. at his
residence, he was dressed and groomed appropriately and “appeared to be in good
spirits as he was talkative and cordial.” 
Father also was “cordial and appropriate” but “appeared solemn and
dismal in his demeanor.”  Father’s eyes
were “red and watery,” Father did not smile, and his tone of voice was “low and
soft.”  Father and J.T. conversed for
about an hour.  They talked about J.T.’s
progress in school and new hair style, and Father’s knee injury and upcoming
dental work.  Father remained cordial
throughout and “appeared to be content as he did not reply [>sic] any displeasure or concerns.”  On the way home, J.T. appeared “relaxed and
content” and the monitor had no concerns.   

At
the 12‑month review hearing on December 5, 2012, the juvenile court
returned J.T. and D.U. to Mother’s custody as the permanent placement
plan.  The court ordered that J.T.
continue to have twice‑monthly, monitored visits with Father while he was
in custody. 

> 

>V. 
Status Review Reports and Father’s Letters

In
preparation for the section 364 review hearing in June 2013, SSA submitted
a June 5, 2013 status review report (the June 5 Report) and a June 13,
2013 addendum report (the June 13 Report).

The
June 5 Report stated J.T. had completed href="http://www.sandiegohealthdirectory.com/">sexual abuse therapy in
December 2012, and reported the following information from the therapist’s
termination report:  “J[.T.] addressed
visitation with [F]ather.  He was very
happy that he was able to resume visits because he did not get to see him last
month.  He said [M]other didn’t want to
take him.  Discussed how it might be due
to her wanting to punish [F]ather but it would be important for her to see it
as supporting J[.T.].  He expressed his
perception was because she believes [F]ather says ‘bad things’ to him.  Inquired if this was accurate and he denied
it.  The therapist expressed that it made
sense that she would want to prevent visits for this reason.  [¶] 
Discussed with the Social [W]orker’s concerns with J[.T.] and her desire
for him and [M]other to participate in a conjoint therapy session to address
concerns and conflicts about his visitations with [F]ather.  [J.T.] expressed not wanting to do this.” 

According
to the June 5 Report, J.T. and Mother did participate in conjoint therapy
in February 2013.  The therapist reported
that J.T. was able to acknowledge what Father had done, and stated, “the family
is trying to bond and move forward but it’s difficult when [F]ather is being
manipulative.”  The therapist recommended
that Mother stop accepting mail from Father. 


Attached
to the June 5 Report were several letters Father had written and mailed to
Mother and J.T.  The letters were
handwritten in Spanish.  Copies of
English language translations of the letters were provided to the juvenile
court, and excerpts of the translations were included in the June 5
Report.  In a letter dated February 4,
2013, Father wrote:  â€œI never thought
you’d stoop so law or prostitute yourself. . . . Don’t be giving away
your body you[’re] not from the street. 
You[’re] worth so much more and take care of your self from Aids [>sic]. 
I know you don’t want to see me and that’s fine.  Thank you for giving me a son.” 

In
a letter dated February 13, 2013, Father wrote:  “You are coming too to jail with me too. . . .
Think about your papers maybe they won’t come. 
They may never come it all depends on me.  Just like you left jail the last time you’ll
come back alone.  If I open my mouth they
are going to bring you quickly.  Only
when I get desperate a little bit more. 
For my son I’m capable of anything. 
You know me . . . I’ve started to care less . . . wait
two more years and you’ll see you’ll be eating here in jail.  There are a lot of women here.  If you want turn in these papers to the
police.  For me it would be the best.  You’ll quickly come here. . . . I’m
not threatening you but the things I have written are truthful. . . .
[Y]our children will know there someone outside who has them and who is looking
out for them.  Think about it, think and
continue to think.  I have telephone # in
my wallet from Mexico and Pochotepec. 
I’m going to see if I can communicate with them if not my friend whose
outside is going to do it with your family. 
Any how I’m looking for the directions to your work facilities.  I’m going to send them your information of
what happen[s] with your supervisors or should I say lovers or maybe they’ll
celebrate with you for what you did with them in bed. . . . Think
about it before you do something you regret well I’ll leave you.”  (Second & third ellipses in original.)

In
a letter dated February 10, 2013, Father wrote:  “Son, be brave have hope in Jesus. . . .
[¶] . . . [¶] . . . [J.T.], I know you’re doing badly at
school.  Son, you’re not at fault what’s
happening. . . . You have to be strong and rise above this and other
things to come. . . . Son, don’t get involved in gangs and don’t hang
out with negative company. . . . You’re a big winner. . . .
[I]f you need something call your godfather . . . .  He’s going to look for you three times and he
has not found you at home.” 

In
the June 5 Report, the assigned social worker stated that Father’s letters
“infer threats against [M]other, her family and employment,” “demonstrate
inappropriate communication with [J.T.],” and “demonstrate a continued pattern
of elements of Domestic Violence which is a part of the family’s social
history.”  The social worker
concluded:  “It is a difficult decision
not to support the child, J[.T.]’s, desire to visit [F]ather however; [a]t this
point it is not in the best interest of the family as [Father]’s letters
indicate safety threats, as he is exhibiting domestic violence tendencies.”

In
both the June 5 Report and the June 13 Report, SSA recommended
termination of dependency proceedings with exit orders.  The June 5 Report stated:  “In order to continue to support and decrease
risk for future sexual abuse the undersigned recommends that [Mother] be
granted full physical custody and given total authorization over visitation rights.  [M]other needs to maintain parental authority
of the family in order to be protective of all her children.” 

J.T.’s
CASA submitted a report on June 5, 2013. 
As for visits with Father, the CASA’s report states, “J[.T.] has not
seen him for several months and expresses no interest in pursuing the contact.”


> 

>VI.  The Section 364 Hearing

A
contested section 364 hearing was held on June 13 and 17, 2013.  The juvenile court received in evidence the
June 5 Report and the June 13 Report. 
The court also read and considered the CASA report filed on June 5,
2013. 

At
the hearing, J.T. testified he knew that Father was in jail because “he did
something to my sister.”  J.T. had not
visited Father since April 2013 and did not know why he had not visited since
then.  J.T. would have liked to have visited
Father in May and would like to visit him in June.  When asked why he wanted to visited Father,
J.T. answered, “[b]ecause I haven’t seen him in a long time.”  J.T. testified that when visiting Father,
they talk about grades in school.  Father
had told J.T. he needed to obey Mother and live with her until he was 18 years
old.  J.T. felt “bad” when he was unable
to visit Father in May.

J.T.
testified he loved Father.  When asked if
he enjoyed visiting Father in jail, J.T. answered, “[n]ot in jail but I do like
visiting him.”  J.T. liked visiting
Father because “I get to see him and that’s something that I don’t really get
to do.”  J.T. wanted to continue seeing
Father in the future and would feel “bad” if he could not do so. 

On
June 17, at the conclusion of the hearing, the juvenile court adopted
SSA’s recommendation in the June 5 Report and ordered termination of
dependency proceedings with no visitation rights for Father.  On the issue of visitation, the court
stated:  “I understand J[.T.]’s desires to
visit with [F]ather.  However, the
statements in the letters read with everything in light, do indicate that this
is dangerous and that this court has the responsibility of the Welfare [and]
Institution[s] Code to [e]nsure that this visitation does not jeopardize the
safety of the children when it applies to visitation orders.  [¶] 
And the court has the obligation to J[.T.] and D[.U.] and, at this time,
[F]ather made the poor decision to write these letters and to conduct himself
the way he has.  [¶]  And at this point the court does not find
appropriate to have any visitation between [F]ather and J[.T.].”

Father
timely filed a notice of appeal from
the June 17 order terminating dependency proceedings and denying him
visitation rights.

> 

>Discussion

Upon
termination of dependency proceedings, the juvenile court may issue “an order
determining the custody of, or visitation with, the child.”  (§ 362.4.)  Such ordershref="#_ftn3" name="_ftnref3" title="">[3]
are transferred to an existing family court file and remain in effect until
modified or terminated by the superior court. 
(In re Chantal S. (1996)
13 Cal.4th 196, 203; In re John W.,
supra, 41 Cal.App.4th at p. 970.)  In making a custody or visitation order under
section 362.4, the juvenile court must consider the best interests of the
child.  (In re John W., supra,
at p. 973.)  “[T]he juvenile court
has a special responsibility to the child as parens patriae and must look at the totality of the child’s
circumstances.”  (In re Roger S. (1992) 4 Cal.App.4th 25, 30‑31.)

A
custody or visitation order under section 362.4 is subject to the abuse of
discretion standard of review.  (>Bridget A. v. Superior Court (2007)
148 Cal.App.4th 285, 300.)  A reviewing
court will not disturb a custody or visitation order under section 362.4
unless the juvenile court exceeded the limits of legal discretion by making an
arbitrary, capricious, or patently absurd determination.  (Bridget A.
v. Superior Court, supra, at p. 300.)


Father
argues the order denying him visitation rights lacked factual support and
therefore constituted an abuse of discretion. 
He argues the evidence established that J.T. loved Father and wanted to
continue visiting him, Father and J.T. had had a relationship since J.T.’s
birth, Father had never been denied visitation rights at any time before the
section 364 hearing, and there was no showing that J.T. would suffer detriment
if permitted to visit Father. 

The
juvenile court heard J.T. testify and understood he wanted to continue to visit
Father.  The juvenile court considered
the relationship between Father and J.T. and the positive aspects of their
visits.  But the juvenile court had to
look at the totality of the circumstances, which included Father’s letters to
Mother and J.T.  In those letters, Father
accused Mother of being a prostitute, threatened to disclose information that
would lead to her incarceration, threatened to contact her family in Mexico and
her employer, and threatened to impede her immigration progress.  Although Father’s letters to J.T. were
generally positive, the social worker concluded the letters were threatening to
Mother and demonstrated a continued pattern of domestic violence.  The therapist stated, “the family is trying
to bond and move forward but it’s difficult when [F]ather is being
manipulative.”  The juvenile court found
the letters to be “dangerous.”  

Father’s
letters provide a factual basis for the juvenile court’s decision to deny
Father visitation rights.  From the
letters, the court could conclude, as did the therapist, that Father was trying
to manipulate the family, and could conclude, as did the social worker, the
letters were part of a continued pattern of domestic violence.  Allowing visitation rights with J.T. would
give Father additional opportunity to manipulate the family, impede the healing
process, and interfere with Mother’s parental authority and ability to protect
her children.  Contrary to Father’s
argument, the no‑visitation order protected J.T. because he is part of
the family that Father was trying to manipulate.  The no‑visitation order prevents Father
from manipulating the family through visits with J.T.

Father
argues that his letter writing was brought to the juvenile court’s attention at
the 12‑month hearing in December 2012. 
The letters in issue were written in February 2013, after that
hearing.  Father argues the last letter
was dated February 13, 2013—four months before the section 364
hearing—and, therefore, denial of visitation rights was unnecessary.  He also argues that any concerns for Mother’s
safety could be addressed by issuing restraining orders against him.  The timing of the letters and alternate means
of protecting Mother were matters for the juvenile court to consider in
exercising its discretion.  The sole question
before us is whether the juvenile court exceeded the limits of legal discretion
by making an arbitrary, capricious, or patently absurd determination.  Given the totality of the circumstances, the
juvenile court did not abuse its discretion by denying Father visitation rights.


> 

>Disposition

The
order is affirmed.

 

 

                                                                                   

                                                                                    FYBEL,
J.

 

WE CONCUR:

 

 

 

O’LEARY, P.
J.

 

 

 

RYLAARSDAM,
J.