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In re D.B.

California Court of Appeals, First District, Fourth Division

July 11, 2013

In re D.B. et al., Persons Coming Under the Juvenile Court Law.
A.G. et al., Defendants and Appellants. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent, v.

San Francisco County Superior Court, Honorable Charlotte Woolard, Trial Judge, Super. Ct. Nos. JD08-3153 C-E

Counsel for Appellant, A.G.:Konrad S. Lee, under appointment by the First District Appellate Project

Counsel for Appellant, S.B.Judith Ganz, under appointment by the First District Appellate Project

Counsel for Respondent Dennis J. Herrera, City Attorney, Kimiko Burton, Lead Attorney; Gordon-Creed, Kelley, Holl & Sugarman, LLP, Jeremy Sugarman, Anne H. Nguyen

Humes, J.

Appellants S.B. (father) and A.G. (mother) appeal from an order by the juvenile court terminating their rights to visit their three youngest children. Visitation had been authorized in July 2010 after the court terminated reunification services, and visits ensued intermittently for a year and a half. But the boys engaged in troubling behavior during and after these visits, and their attorney, joined by respondent San Francisco Human Services Agency (Agency), sought to end the visits by filing a request to change the July 2010 order under Welfare and Institutions Code section 388.[1] This request was granted by the juvenile court in April 2012, and it is this order from which the parents appeal. We conclude that the preponderance-of-the-evidence burden of proof applied at the hearing and that the boys and Agency demonstrated sufficient “new evidence” under section 388 to justify changing the previous court order. We therefore affirm.


Factual and Procedural Background

Father and mother are the parents of six children together, with their three youngest, all boys, being the subject of this appeal.[2] Father and mother also have two children each from other relationships. The case began when the Agency filed a dependency petition regarding all of the children in June 2008. In October 2008, the children were adjudged dependents of the court. In support of its order, the juvenile court made a number of findings, including the following: the parents had a relationship characterized by domestic violence that was witnessed and imitated by the children; a female child reported sexual abuse by her half brother; the children reported that the parents used excessive physical discipline; mother had mental health problems requiring therapy; father had a possible drinking problem requiring assessment; father physically abused his children from another relationship; and several children of one or both parents were former dependents of the court. (§ 300, subds. (b), (j).)

A reunification period of over a year and a half followed, and during it the boys were placed together in three different foster homes. Status reports filed during this time described worrisome behaviors by the boys. The younger brother suffered possible developmental delays, which may have been due to brain bleeding at birth. The middle brother showed aggression when he was two years old and engaged in “head banging.” The older brother, according to his foster parents, “play[ed] with his feces all the time” when he was first placed in their care but stopped by early 2009.

Visits among the three boys, their siblings, and their parents during the reunification period sometimes involved violence among the children requiring “constant intervention and redirection.” According to a status report filed in October 2009, the boys often acted out after visits. In early 2010, the social worker reported that the boys returned from visits with their parents “hyper and unable to self regulate.” After visits, the older brother displayed increasingly aggressive behavior, the middle brother became “the most disregulated, ” and the younger brother was “often very fussy.”

The parents were unable to reunify with their children. At the conclusion of a contested 18-month-review hearing in July 2010, the juvenile court terminated reunification services and ordered the boys to be placed with a maternal aunt (mother’s sister), where they had been living for just over a month, and where they have remained ever since.[3]

At the July 2010 hearing, counsel for the Agency and the minors expressed concerns that parental visits during the reunification period caused the boys to engage in “continued aggression, ” “tantruming, ” and acting out. The court noted that the boys were still adjusting to their new placement, and it was hard to know why they were experiencing difficulty. The court ordered that mother receive supervised visitation twice a month, but added, “If it turns out that my call [regarding visitation] was wrong or there’s new information, come back to the court and I’ll reconsider what I ordered.” (Italics added.) Father’s visits with the boys had been stopped around the time father entered a drug-and-alcohol-treatment program. The court ordered monthly supervised visits with father, subject to various conditions, including a requirement that father begin drug testing and that father’s sobriety be evaluated before the resumption of visitation.

The juvenile court renewed the boys’ dependency status at post-permanency review hearings on January 13 and August 9, 2011, and on January 10, 2012, following the filing of status review reports describing the boys’ progress in their aunt’s care. According to these reports, the boys displayed a good deal of aggression when they were first placed with their aunt, but they became less aggressive over time. The social worker reported at one point that the older brother had shown great improvement in his behavior and emotional regulation, although his preschool continued to work with him on his physical behaviors and socialization skills, and he still at times screamed uncontrollably and acted out sexually. The middle brother suffered from severe diarrhea early on in the placement that was attributed to anxiety. He was asked to leave his preschool because of violent behavior, and he was disruptive at a second preschool placement, where he hit and bit students and teachers. He was “ ‘severely delayed’ ” in his speech, scored “ ‘very low’ ” on an early childhood screening test, and suffered “severe behavioral and emotional issues” related to anxiety and posttraumatic-stress disorder. The younger brother’s behavior was reportedly normal, although he continued to experience developmental delays.

Mother was generally consistent in visiting the boys, but the boys were at times overwhelmed by the visits and experienced “episodes [of] emotional dysregulation” when they were with mother and were hard to control. Father satisfied the court-imposed conditions to begin visitation. He visited with the boys in November 2010, and in January, February, and March 2011, but then did not visit with them again until August 2011. The two older brothers reacted negatively when father’s visits resumed. The older brother (then about five-and-a-half years old) had a bowel movement in his pants during the first resumed visit, had one a few days later at school even though he was ...

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