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In re Anthony K.

California Court of Appeals, Fourth District, First Division
Jul 23, 2008
No. D052122 (Cal. Ct. App. Jul. 23, 2008)

Opinion


In re ANTHONY K. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. L.K., Defendant and Appellant. D052122 California Court of Appeal, Fourth District, First Division July 23, 2008

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of San Diego County No. J515833, Gary M. Bubis, Judge.

McINTYRE, J.

L.K. appeals the order granting the Welfare and Institutions Code section 388 petitions (statutory references are to Welfare and Institutions Code) of the San Diego County Health and Human Services Agency (the Agency), suspending her visitation with her sons Anthony K. and Shane G. L.K. contends the order is unsupported by substantial evidence. We affirm.

BACKGROUND

In June 2005 when Anthony was eight years old and Shane was five years old, the Agency filed dependency petitions because Anthony had rotting teeth and bleeding gums and was exposed to violence between L.K. and Shane's father, Shane G., Sr. (Shane Sr.), and Shane was left with his paternal grandmother who had significant medical problems and no home of her own. Anthony, who had been living with L.K.'s former neighbors, was detained in that home and later in a foster home. Shane, who had been living with his paternal grandmother, was detained in two successive foster homes. His second foster home became a placement. In June 2006 Shane was moved to Anthony's foster home. In April 2007 Anthony and Shane were moved to the foster home of Lisa U. Anthony and Shane made significant emotional, social, and behavioral progress there.

In July 2007 the Agency filed its section 388 petitions. The court set an evidentiary hearing and suspended visitation pending that hearing. In November, the court granted the petitions.

DISCUSSION

L.K. contends the order suspending her visitation is unsupported by substantial evidence and the court never specifically found visitation would be detrimental to Anthony and Shane.

The juvenile court may modify an order if a petitioning party shows, by a preponderance of the evidence, changed circumstances or new evidence and that modification would promote the dependent child's best interests. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 322; In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) The juvenile court's order on a section 388 petition is ordinarily reviewed for an abuse of discretion. (In re Michael B., supra, 8 Cal.App.4th at p. 1704; In re Casey D. (1999) 70 Cal.App.4th 38, 48.) Suspension of visitation, however, requires a showing of detriment. (In re Luke L. (1996) 44 Cal.App.4th 670, 679; § 366.21, subd. (h)) and is reviewed under the substantial evidence standard. (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.) Here, the juvenile court expressly found detriment. Substantial evidence supports that finding, which is unassailable whether it was made by a preponderance of the evidence (In re Manolito L. (2001) 90 Cal.App.4th 753, 758) or clear and convincing evidence (see In re Dylan T. (1998) 65 Cal.App.4th 765, 773). Additionally, the Agency showed changed circumstances, new evidence, and that suspending visits would promote Anthony's and Shane's best interests. The court did not abuse its discretion by granting the petitions.

The section 388 petitions alleged that Anthony's and Shane's behavior improved in Lisa's foster home. When visits resumed in July 2007 after a hiatus during L.K.'s incarceration, Anthony and Shane displayed severe anxiety and anger. Their therapists believed visitation was detrimental and should be cancelled.

In August 2005 L.K. was booked into jail on drug charges. The social worker took Anthony and Shane to visit her in jail. In September L.K. was sentenced to prison for burglary. Supervised visits resumed after her release in December. By July 2006 however, L.K. had stopped visiting. By late September she had told the social worker that she was going to prison in northern California. In October the court terminated reunification services and set a section 366.26 hearing, shifting the focus of the case to providing Anthony and Shane with permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 307.)

On May 15, 2007, Anthony and Shane had a noncontact visit with L.K. in jail. She told them she would visit them on holidays and birthdays, leading them to believe they would soon be reunited with her. After the visit, Anthony sat on the ground outside the jail, cried, and refused to get up. That evening, he said he was going to live with his real mom when he turned 16 (which he had never said before), punched his head (which he rarely did), and growled. Later that evening, he cried and told Lisa about his frightening memories of L.K., something he had never done. The same evening, Shane curled up, rocked back and forth (a new behavior), cried, and asked Lisa if he was going to be moving the next day. On the evening of May 16, he was unusually anxious and wet his pants—something that occurred during the school day and at night, but not at home in the evening. He told Lisa that L.K. was going to ask the "police people" to let her go in July so she could live with him. He seemed confused, saying he wanted to live with L.K. and wanted Lisa to adopt him.

A visit scheduled for May 16, 2007, did not take place because L.K. was returned to prison. There were no further visits until July, after her release. She came to a visit that month accompanied by Shane Sr., who the children feared, and discussed placement issues with Anthony. After the visit, Anthony and Shane regressed severely. Anthony stole money, which he had done before, and lied about it. He was disrespectful and argumentative with Lisa, which were new behaviors. He cried and screamed, "it's not my fault, my parents taught me to lie and steal." He wrote on a desk and a carpet with a permanent marker and kicked a family pet. In the early evening, Shane wet the bed and his pants, which had not occurred since May 16. He complained of a stomach ache and a severe headache and laid down for much of the next day. After either the May visit or the July visit, he was uncooperative and anxious.

Rhonda Smallwood, Anthony's therapist, testified visits confused and upset Anthony because he believed they meant he was going to live with L.K. Anthony said he loved L.K. He also said he wanted to live with her, something most children would say about their parents. He never spontaneously said he missed her or asked when he could see her, however. She testified it would be very traumatic to Anthony if L.K. visited inconsistently, and that regular visits would be helpful only if she progressed in services and conjoint therapy and wrote an atonement letter. Having L.K. attend one of Anthony's therapy sessions would not be appropriate until she accomplished a period of sobriety, was in therapy, and wrote the letter. Smallwood stated supervised telephone contact might be appropriate but was unsure whether Anthony was emotionally ready for contact. A psychologist who had recently evaluated Anthony recommended he be moved to a Foster Family Agency (FFA) home due to his behavioral and emotional problems. Smallwood was concerned that Anthony's acting out might reach the point where he would not be allowed to stay in Lisa's home pending his FFA placement.

Joan Matlock, Shane's therapist, testified Shane never spontaneously said he wanted to see L.K., although before the May 2007 visit he was happy that he was going to see her. Shane was just beginning to stabilize and heal. She believed contact with L.K. might elicit deeper rage or grief than he could handle. Further, whether a telephone call would be appropriate depended on L.K.'s progress in treatment. Matlock would consider allowing her to attend one of Shane's therapy sessions only after obtaining a progress report from her treatment provider.

L.K. entered a treatment program just two weeks before the section 388 hearing concluded. She testified that she drug tested once a month as a condition of her parole, had tested six times, and had no positive results. There was no other evidence of her progress, no evidence whether she was in therapy or had written an atonement letter and no evidence exactly how long she had been sober. She admitted saying to Anthony, with Shane "in the background," that they might be together when he turned 18. She did not believe this could confuse Anthony. She admitted telling both boys that when she was released, she would try to tell the social worker she wanted to see them. She believed this would help build trust. Clearly, she did not comprehend the harm her conduct and statements caused Anthony and Shane.

There was substantial evidence to support the court's finding of detriment.

DISPOSITION

Order affirmed.

WE CONCUR: McCONNELL, P. J., O'ROURKE, J.


Summaries of

In re Anthony K.

California Court of Appeals, Fourth District, First Division
Jul 23, 2008
No. D052122 (Cal. Ct. App. Jul. 23, 2008)
Case details for

In re Anthony K.

Case Details

Full title:In re ANTHONY K. et al., Persons Coming Under the Juvenile Court Law. v…

Court:California Court of Appeals, Fourth District, First Division

Date published: Jul 23, 2008

Citations

No. D052122 (Cal. Ct. App. Jul. 23, 2008)