State ex rel. J.B.

588 So. 2d 148, 1991 La. App. LEXIS 2726, 1991 WL 205631
CourtLouisiana Court of Appeal
DecidedOctober 15, 1991
DocketNo. 91-CA-0816
StatusPublished

This text of 588 So. 2d 148 (State ex rel. J.B.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. J.B., 588 So. 2d 148, 1991 La. App. LEXIS 2726, 1991 WL 205631 (La. Ct. App. 1991).

Opinion

SCHOTT, Chief Judge.

This is a suit by the State of Louisiana against the father of J.B., a girl born on January 25, 1981, to terminate his parental rights pursuant to LSA-R.S. 13:1601(B). The trial court denied the petition and ordered the state to develop a plan to reunite the father and child and to submit the plan to the court within ninety days. The state has appealed.

Pursuant to R.S. 13:1601(B) the state may petition for termination of parental rights of the parent of an abused or neglected child, or one in need of care when the following grounds are alleged:

B. (1) One year has passed since the rendition of an abuse or neglect judgment or child in need of care judgment, as defined in R.S. 13:1600(7), pursuant to the Code of Juvenile Procedure, and in the opinion of the court the parent is unfit to rear the child.
(2) The parent or parents have shown no significant substantial indication of reformation and are unlikely to reform.

In order to support a judgment the state must prove its allegations by clear and convincing evidence. R.S. 13:1603(A).

The trial judge in reasons for judgment found that the state failed to carry its burden of proof that the father was unfit or that he had shown no significant substantial indication of reform. The issue in this court is essentially factual as to whether the trial court erred in discounting the weight of the state’s evidence.

The first element of proof, that one year had passed since the date of the child in need of care judgment, is not disputed. J.B. was adjudicated a child in need of care in another section of the Juvenile Court on July 9, 1986. However, these early proceedings and the facts leading up to them are closely related to and part of the issues now being considered.

In April, 1985 J.B.’s father brought her to Mrs. Diane Broughton to keep her while he was at work as a truck driver. The mother had just abandoned them. Mrs. Broughton cared for the child all the time except for occasions when the father took her away for four hour visits. After such a visit in October, 1985 she realized something was wrong with the child and took [149]*149her to her physician on October 26. Finding J.B.’s hymen not intact and a vaginal discharge, he thought she had been sexually abused. He reported the case to the Orleans Parish Child Protection Agency. On November 9 Mrs. Broughton brought the child to Charity Hospital for a second opinion, but, this time, the physician found no evidence of sexual abuse. Because of these conflicting findings the Child Protection Agency referred the child to Dr. Rebecca Russell a pediatrician specializing in cases of child sexual abuse, for another examination.

On April 8, 1986, Dr. Russell examined the child. She explained to J.B. that she was a special doctor who saw children with problems for “bad touching”. With the aid of an anatomical drawing the child stated that her father had touched her in the vaginal area which she called her “private parts”, this happened “A lot of time” and he also gave her “bad kisses”. After a genital examination on the child Dr. Russell concluded that she was a victim of sexual abuse. A summary of the evidence considered by the Juvenile Court judge in the child in need of care proceedings includes the above in addition to a statement by Mrs. Broughton that she witnessed the father tongue kissing and fondling the child and a statement by the child’s therapist that she told her the father had placed his finger in her vagina many times.

In the 1986 judgment the court continued the child in the custody of the Office of Human Development (OHD) and placement with Mrs. Broughton; authorized supervised visits between the father and child; ordered continued therapy for the child; and recommended therapy for the father. At this point the mother of the child was a party to the proceedings and the court ordered OHD to assist her in the hope that she could eventually assume custody.

On June 14, 1990 the stated filed the current proceedings to terminate the father’s parental rights, and on January 15, 1991 the matter came to trial. By this time the mother’s parental rights had been terminated because she had abandoned the child.

Glynn Wade of the Office of Community Services provided this testimony: She referred J.B.’s father to a sex abuse perpetrator group for therapy in 1988, but he went only sporadically, the last time in June, 1990. He called her the next day to say he would not go back because they expected him to admit molesting the child which he denied. Her agency considered J.B.’s case as appropriate for adoption so that termination of parental rights was necessary.

Linda Johnson, an attorney, testified: She was employed by the Orleans Indigent Defender Program when the child in need of care proceedings took place and was appointed to represent J.B. Asked whether there had been an adjudication she stated that all counsel, including the father’s reviewed Dr. Russell’s report and stipulated that the child was in need of care in the custody of OHD. The stipulation was as to all the allegations of the petition.

Nikki Alexander testified: She is a social worker who specializes in the field of sexually abused children. J.B. was referred to her by the Office of Community Services. She saw her regularly between January 27, 1986 and September, 1989 and for the last time in January, 1990. During this period the child was also being seen by a psychiatrist who diagnosed post traumatic stress syndrome in the child from sexual abuse. At all times the child consistently described the sexual abuse and identified the father as the perpetrator. Alexander met the father only once, on the occasion of a joint therapy session conducted by Susan Fer-ron, a social worker assigned to the father’s case. On this occasion the father offered the child money in exchange for a kiss which Alexander thought was inappropriate. The child frequently told Alexander she didn’t want to see her father or live with him any more. Alexander did not think it was in the child’s best interest to begin a reunification process with the father.

Susan Ferron testified as follows: She is a social worker who specializes in sex abuse cases including the treatment of offenders. J.B.’s father was referred to her [150]*150by the Office of Community Services. She saw him from September, 1986 until June, 1987. He denied that he abused the child and she thought during her first eight sessions with him that he was innocent. He showed great concern for the child, he was able to describe in detail the child’s allegations against him, and he showed no anger toward the child. All of these are unusual for a child abuser. In February or March, 1987 she had the father and child come to a joint session with her and she thought their relationship was unusual. The child kept her distance from him and he offered her money for a kiss. He told her he would find another little girl to take home if she didn’t kiss him. Ferron testified this conduct was inappropriate and thought the interaction between them was “strange”, any affection was “strained” and their attitudes were “artificial”. This caused Fer-ron to become suspicious. She next interviewed the child alone and she clearly, consistently, and repeatedly described the father’s sexual abuse of her with the assistance of an anatomical doll. She refused to discuss it in his presence. At this point Ferron no longer believed the father’s protestations of innocence.

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Bluebook (online)
588 So. 2d 148, 1991 La. App. LEXIS 2726, 1991 WL 205631, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-jb-lactapp-1991.