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In 2002, a third of the Monroe County NY, children in foster care, were prescribed one or more psychotropic drug. By 2006 over 40% were being drugged.

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ALLISON BRUMBACH, Esq.
[State Bar No. 160413]
100 Doyle Street, Suite A
Santa Cruz, California 95062
Telephone: (831) 420-0874
Attorney for Diane B., Appellant

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

In re: No. H029660
Vincent B., A person coming under the Juvenile Court Law


Department of Family and Children's Services
Santa Clara County,
Superior Court Number JD11110

Plaintiff and Respondent,
Appellant's Opening Brief
v.
Diane B.,
Appellant.


NATURE OF THE PROCEEDING

Appellant, Diane B., hereby appeals, by and through counsel, the judgment of the lower court denying her request for modification without a hearing. Appellant respectfully requests the Court of Appeal to reverse the decision to deny the petition and remand the case to the Superior Court to conduct a hearing on appellant's modification petition and to hear evidence consistent with and as required by the law.

STATEMENT OF THE CASE AND FACTS

On July 29, 1999 the minor, Vincent, was removed from his mother's care and placed into a children's shelter after a referral from the child's school. The teachers had warned Diane that Vincent's behavior required Ritalin in order to attend their school.

Diane does not believe in ADHD or in using mind-altering drugs. While Diane was on the job working for a Sunnyvale lawyer who was also on the City Council, Vincent was apprehended by a social worker who was called by a neighbor who was having a lesbian affair with the woman that ran the domestic violence shelter located next door. Vincent was taken to the Children's Shelter on Union Avenue in San Jose. This shelter was operated by Dianne McKenna who used to also serve on the City Council and was former mayor of Sunnyvale. This shelter was a for-profit institution that has been investigated by the State several times for code violations. There are also Grand Jury Reports that place this shelter in a very negative light, having found that the shelters were operating a children's prostitution ring. 1

On September 14, 1999 the juvenile court sustained a petition pursuant to subsection (b) of the Welfare and Institutions Code, Section 300, after Diane was misrepresented by counsel and told that if she did not "waive" she would "never see her kid again."

In January of 2000 dependency was established, the minor was removed from his mother's care, and she was offered family reunification services. While receiving these "services", Vincent was drugged on a deadly cocktail of psychotropic pharmaceuticals and sustained brain injury. He was also physically and sexually abused under the Department's "care". The mother filed for an emergency protective order in the Federal Court 2 but her request was denied without a hearing. The mother then took the child on July 2, 2000, during a supervised visit at the minor's placement. She drove Vincent out of the country to Canada where she and the minor lived until they were discovered on September 20, 2000, after a routine traffic stop. Although Diane had a valid passport for both herself and Vincent, Diane was arrested based on a kidnapping warrant from Santa Clara County and was released shortly thereafter.

The RCMP constable informed Diane that a $500,000 reward was awarded them for the return of Vincent. Vincent was returned to the same abusive institution, and Diane was allowed to stay in Canada to file for refugee status under the Geneva Convention. Diane informed the court that Vincent was finally becoming physically and emotionally healthy in her care. He was getting very good medical care and was happy in Vancouver. (1CT 536.)

When Vincent was separated from his mother he began exhibiting self-harming behaviors; therefore, he was psychiatrically hospitalized until he was returned to the United States and admitted to the Children's Shelter in Santa Clara County. (1CT 525-526.) Diane informed the court, via letter, that Vincent screamed and cried violently when they separated him from his mother. (1CT 535.) He insisted he wanted to go home with his mommy. He pleaded for someone to help him. (1CT 535.)

A social worker and a police officer in Canada confirmed that Vincent was overwhelmed by anxiety after being placed into protective custody because he did not know whether he would ever see or talk to his mother again. (CT 447; 1CT 526.) In fact, Vincent has not seen or spoken with his mother since September of 2000.

While Diane remained free in Canada, her son was moved into a group home in Santa Clara County. (CT 43, 267.) At an interim review hearing, the court ordered that Diane not be permitted to telephone Vincent, unless Vincent's therapist believed it would be beneficial to him, and then only with the structure that the therapist believed to be appropriate.

Diane continued to reside in Canada pursuing political asylum. (2CT 27-28, 31.) On February 1, 2001 the twelve-month review hearing was held without the presence of Diane. (2CT 24.) Having relieved Diane's trial counsel upon an oral motion, the court then went on to terminate reunification services, ordered no contact between Diane and Vincent, and adopted the permanent plan of long term foster care for Vincent. (2CT 58-60.)

However, Diane had never been provided with reunification services in Canada. A few weeks prior to the twelve-month review hearing the social worker had mailed to Diane several referrals for Diane to complete her case plan. Unfortunately, special approval of the Canadian Ministry for Children was a necessary prerequisite for Diane to obtain services since they would not open files for parents whose children were not living with them. (2CT 41, 45.) It does not appear from the record that the social worker requested special approval of the Canadian Ministry for Children. Additionally, some of the Canadian service providers required that the child live with the parent as a criterion for acceptance into their program, further limiting Diane's access to services. (2CT 45.)

The social worker opined that she had provided Diane with appropriate services although she did not mention the limitations enunciated by the social worker from Canada. (2CT 29.) The juvenile dependency court in San Jose insisted that Diane was a victim of domestic violence. However, her boyfriend, Dean Stock, was never charged or convicted of domestic violence. These charges were all just a ruse to kidnap Vincent into the child trafficking ring of criminal authorities. The $131,000 a year California foster care administrator, Dept. of Human Services deputy director, Janice Anderson-Santos, temporarily stepped down while being investigated for a scandal in which a child welfare worker and a supervisor were accused of downloading and distributing pictures from an X-rated S&M web site. 1 It has also been reported to the HHS OIS that the County DHS is committing Medicaid and mental health services fraud.

Judge Leonard P. Edwards has resigned simultaneously with Rob Reiner, who is under investigation for misuse of public funds. Judge Edwards and Mr. Reiner had held conferences together for the sole purpose of soliciting money to fund children's issues. However, neither Mr. Reiner nor Judge Edwards has ever seen or talked to any of these children in person. 2 The CASA Administrator has also been fired. CASA or Court Appointed Special Advocates was also given birth by Judge Leonard Edwards. 3

Despite Vincent's apparent need, he was not yet involved in individual therapy as of January 11, 2001 since his removal from his mother in September 2000. (2CT 28.) Counseling for Vincent was also the only way Diane could have contact with him. Therefore, because Vincent was not yet in therapy, the prior court order of no contact until the child's therapist deemed it appropriate and beneficial to Vincent could not be addressed. (1RT 4; 1CT 542.) Once reunification services were terminated in February 2001, long-term foster care remained and continues to be the permanent plan for Vincent. (2CT 58-60; CT 356.) For the next year, Diane remained without counsel.

On February 20, 2002 an independent trial court wrote an opinion denying Diane's in pro per motion to disqualify Judge Edwards, the judge who usually heard the case regarding Vincent. (CT 46.) However, Judge Edwards did promise in a written answer that he would, "attempt to ensure that she is well represented by counsel and learns of her son from the current social worker and from any attorney who might represent her in the future." (CT 43.)

At a post-permanency planning hearing held on March 21, 2002 counsel was re-appointed to represent Diane. (CT 74.) The court denied counsel's request to allow Diane to participate in the hearing by telephone. (CT 74.)

The social worker had reported to the court for that hearing that Vincent continued to reside in a group home, that he suffered nervous "tics" including licking objects and the compulsive biting of his fingers, lips and fingernails, that he was argumentative, non-compliant and physically aggressive toward others and property in the classroom, that he would tantrum an average of three to five times a day for three to ten minutes each time, that he continued to be nervous, anxious, and fearful of strangers, that he exhibited poor personal boundaries when minimally familiar with someone, and that he acted out sexually, was prone to running away and had an inability to sit still for very long. (CT 56-57.)

These are side effects of the psychotropic pharmaceuticals force-fed to Vincent without informed consent. Child Neurologist, Dr. Fred Baughman, had written to the court several times, but Judge Edwards did not respond. 5 The group home case manager attributed most of these behaviors to the, "incident of being kidnapped and held by his mother in the trunk of her car." (CT 57.) However, Diane easily was admitted across the border with Vincent because she had a valid U.S. passport for him and there were no restraining orders or court orders currently in effect in the computers. Further, Diane testified that her car did not have a "trunk" and in fact the social worker lied to support their contention that Diane abducted her child. Diane had submitted evidence to the Governor to support her testimony and was thereby granted clemency by the Governor.

Contrarily, Vincent's therapist opined that Vincent could be "very 'matter of fact' regarding his kidnapping." (CT 58.) Vincent's therapist also reported that Vincent's group home case manager admitted that Vincent would often ask about his mother and her circumstances and that he seemed to be less anxious around that issue. (CT 58.) Additionally, Vincent's poor personal boundaries and sexually acting out were undoubtedly the result of the sexual molestation he suffered while under the care of the Department. (CT 182.)

At some earlier point in the case the trial court had modified its no contact order to allow Diane written communication with Vincent. As of February 13, 2002 Vincent had received three of Diane's seventeen letters, as those were the only letters approved for content. (CT 59.) Similarly, letters from Vincent's maternal grandmother were not forwarded to Vincent. Because Diane had never received a letter from Vincent and was unsure of his status, the social worker obliged her request to have Vincent write a letter to his mother, which he did on February 4, 2002. (CT 59.)

Vincent's progress deteriorated to the point that he needed to be placed into a higher level of care in June 2002. (CT 101.) According to his Court Appointed Special Advocate (C.A.S.A.), Vincent had a difficult time adjusting to his new placement, initially demonstrating fear and sadness, and later reverting to combative behaviors such as hitting, kicking, spitting, and biting staff; self-injurious behaviors such as biting his hand and the inside of his cheek; explosions of screaming and swearing for lengthy periods; and seeking attention in inappropriate ways. These behaviors were the result of the side effects of the cocaine-like drugs administered to Vincent. (CT 102.)

In August 2002 the social worker reported that Vincent continued to display difficult behaviors; therefore, his doctor was re-evaluating his psychotropic medications. (CT 103.)

The social worker also reported that Diane was writing to her son four to five times each month and that the social worker or child's therapist would read the appropriate letters to Vincent since he could not read well. (CT 103.) Diane testified that Vincent could read very well and, in fact, Vincent had learned to type and use the computer while in Diane's custody in Canada. The social worker provided the court with examples of how "inappropriate" most of Diane's letters to her son were. (CT 124.) In her letters were themes of letting Vincent know that she is working hard to regain custody of him, that she loves him, and that the people who are keeping them apart are bad people who will some day be punished. (CT 134-145.) She also reminded Vincent of good memories they shared, let him know of fun things going on in her life, and asked him questions about what his life was like. (CT 134-145.)

Some time in late January or early February 2003 Diane turned herself in to law enforcement and was returned to Santa Clara County to face a child abduction charge against her. (CT 163, 164.) Diane was released on misdemeanor charges and ultimately had those records expunged by order of the Governor.

In April, 2003 another annual post-permanency planning review hearing was held. The C.A.S.A. reported some of the anxieties that Vincent had disclosed to her, such as a fear of being left by her. (CT 182.) It may have appeared to Vincent that his mother "left" him since he had not seen her since they were forcefully separated a year and a half earlier. The C.A.S.A. said that he told her that he had been left alone for a long time when he lived with his mother. (CT 182.) However, the C.A.S.A. worker has since been fired. Vincent also shared his anxieties regarding an incident from three or four years prior while in placement at a shelter or group home, when another child acted out sexually with him. (CT 182.)

The social worker reported that Vincent's behavior and social development continued to be problematic. (CT 186-187.) His compulsive tendencies had decreased in the previous few weeks; however, he continued to have personal boundary issues, poor social skills, difficulty trusting others, and a disturbing tendency to bolt and run away from supervision. (CT 186-187.) This was a result of the severe abuse and neglect of Vincent while under the Department's care. Vincent lost the continuity of therapy and had to see a new therapist in October 2002. (CT 189.) His group home case manager noted that, "Vincent's play therapy primarily reflects themes of abandonment and fear." (CT 189.) This is the result of the trauma of Vincent being forcefully removed from his mother in Canada. Vincent had expressed concern and confusion about his own sexualized behaviors and that he also repeatedly asked for reassurance that he was liked and cared for by others. (CT 189.) Vincent expressed that he wished to "belong to a family," (CT 190.)

With the assistance of counsel, Diane filed a petition for modification of court orders on June 27, 2003. (CT 234.) Because Diane pled to a misdemeanor charge, received credit for time served, and was released from incarceration in May of 2003, she requested that Vincent be returned to her care on family maintenance, to grant her further services in family reunification and to immediately grant visitation. (CT 235, 268.) The juvenile court found that the petition stated a change of circumstances or new evidence and found that the best interest of the child may be promoted by the proposed modifications; therefore, the court ordered a hearing be set. (CT 236.) The child's attorney filed a request for a restraining order to restrain Diane from contacting Vincent. (CT 245-246.) That request was temporarily granted and set to be heard the same day as Diane's modification hearing in July 2003. (CT 245.) Diane's counsel set the matter for trial and the judge ordered Diane to be present at the contested hearing. (CT 257, 258.)

On the trial date, August 28, 2003, Diane's counsel withdrew her petition for modification of court orders and the court granted a permanent three-year restraining order against Diane. (CT 262.) Diane was not allowed to be present at that hearing. (CT 262.)

In November, 2003 a newly assigned social worker reported that Diane's whereabouts were then unknown and that there were three warrants for her arrest due to her failure to keep her probation officer informed of her address and employment information. (CT 265, 268.) However, the social worker did indeed have Diane's address in Canada as evidenced by correspondence sent to Diane by the social worker in Canada. The social worker also had Diane's phone number. The social worker claimed that Diane had not written to Vincent in "recent months." (CT 273.) In fact, Diane had written a letter to Vincent at least once per week, but the social worker, Franklin Kitchener, had kept all the letters on his desk found by Diane's attorney, Patty Bazar.

At a permanency planning hearing held on November 6, 2003 the court ordered that Diane be provided with a photograph of Vincent. (CT 283.)

Vincent's C.A.S.A. reported in May, 2004 that Vincent had stated that he would like to live in a house once he graduated from his group home. (CT 295.) He also stated that he had not received any mail from his mother for a long time and that he worried about whether she was sick. (CT 295.) The social worker reported that Diane's whereabouts remained unknown and she had not attempted to communicate with Vincent in the past six months. (CT 296, 299, 305.) The social worker had Diane's address and phone number in Canada. The social worker commented that Vincent was suffering from significant emotional and behavioral problems. (CT 299-300.) On June 3, 2004 the court ordered a neuropsychological evaluation of Vincent. (CT 329.)

By the time Vincent was eleven years old, his C.A.S.A. reported that he was anxious about his future and where he would go after he graduated from his placement. (CT 338.) Another newly assigned social worker reported that Vincent continued to receive individual and group therapy to address anxiety, communication, appropriate boundaries, and the development of effective coping skills. (CT 343.) The court conducted an annual review hearing on December 16, 2004 without the presence of either Diane or her attorney and ordered that Vincent remain in a planned permanent living arrangement. (CT 354.)

On April 8, 2005 Diane, with the assistance of counsel, filed a petition for modification of court orders. (CT 363.) Because Vincent was not in a family setting, Diane believed she could provide him with a loving, stable home. (CT 364.) The changes in her circumstances were that she had a stable life demonstrated by multiple responsible jobs including a job with a state legislature; fiscal responsibility, in that she had a passport, credit card and a one bedroom apartment; no history of mental health hospitalizations; she was not in a romantic or inappropriate relationship; she was applying for clemency with the governor; she was in excellent physical health; and she had community support to enhance her parenting abilities. (CT 364.)

Diane corroborated her petition by supplying information to the social worker, who included them in her report to the court for the permanency planning review. (CT 420, 449-454.) Specifically, the information provided was an identification card showing that from January 3, 2005 until at least May 31, 2005 Diane worked as an assistant legislative researcher for the State of Hawaii Legislative Reference Bureau. Diane included a copy of her employment health benefits enrollment form signed in January, 2005, a photo employee identification card issued by the State Capitol, a Hawaii State ID which included her address in Hawaii, a current passport for Vincent, a letter from the Office of the Governor of California informing Diane that her application for a pardon, and a photo identification card showing her former address in Vancouver, British Columbia. (CT 449-454.)

Given her stability, Diane requested that the court change its order of long term foster care as the permanent plan for Vincent and to return him to his mother on family maintenance after an appropriate transition. (CT 364.) Alternatively, Diane requested regular visitation and family reunification services. (CT 364.)

The court found that Diane's petition stated a change of circumstances and that the best interest of the child may be promoted by the proposed modifications. (Emphasis added; CT 365.) The court ordered a hearing on the matter be set for May 5, 2005.

The social worker provided a memorandum to the court to report that Diane telephoned to inform the social worker that she was in California. (CT 368.) The social worker asked the court to deny Diane's petition and appeared to report to the court that Vincent frequently told his case manager that his mother scares him. (CT 368, 369.) In fact, the police report issued by the Los Gatos Police Department stated that Vincent was "scared to go back to California." Vincent stated that the "police in Canada were nicer than the police in California" and that "California was a bad place where bad police were after them."

On May 5, 2005 Diane appeared in court in custody with her attorney; however, the modification hearing was continued to July 12, 2005. (CT 370.) Without providing an explanation, on July 12th the court again continued the case to August 9, 2005. (CT 371.) Diane and her counsel were again present. (CT 371.) On August 9th the court continued the hearing to September 13, 2005 at the request of the Department of Family and Children Services (hereinafter, the Department) and ordered discovery due for the next hearing. (CT 380.) On September 13th the matter was continued to September 20th. (CT 381.) On September 20, 2005 the court granted Diane's request for discovery so that she could obtain information from the child's therapist, institution staff, and medical doctor. (CT 383-385.) Diane especially desired to have records of any conversation with anyone known to the social worker to whom the child expressed fear or negative feelings toward his mother and visitation. (CT 383-385.)

Also on September 20th, the court continued the hearing to October 18, 2005. (CT 386.) The type of proceeding was written as, "Whether evid hrg on 388. 366.3 trail" (CT 386.)

The social worker filed an addendum to the court on October 18, 2005. (CT 387.) The social worker's basis of her professional opinion that the minor fears his mother, was that Vincent's "treatment team" reported it to the social worker. (CT 387-388.) Vincent's treatment team was not identified. Vincent's therapist provided extracted information of his/her review of nearly three years of therapeutic notes from their individual sessions. (CT 390-392.)

On February 24, 2004 Vincent told his therapist that he would like to see his mother. (CT 391.) Vincent wanted to know where his mother was. (CT 391.) In April, 2004 Vincent and his therapist discussed the feelings that he had about his mother, both wanting to know about her whereabouts and the state of her health, and also having concerns about the reality of actually seeing her at some point. (CT 391.) The therapist reported that on July 8, 2004,

"Vincent appeared pleased by the mail from his mother, but was also detached emotionally. He said that he was glad to know that she was still alive. He began to bite and lick his hand while talking about his mother and was able to acknowledge the increased anxiety that he felt."

In the last quarter of 2004, Vincent talked about his sense of confusion related to his own feelings for his mother. (CT 392.) He was interested in a card and pictures from his mother, asked many questions, and speculated about her true feelings for him. (CT 392.) The only notation in 2005 was on April 29th when Vincent wanted to retrace his placement history. (CT 392.)

The social worker provided the court with a quarterly report, from an unknown quarter and year. (CT 393.) Vincent was noted to frequently state that he wished to graduate so that he could be with "a real family." (CT 394.) The author of the report also wrote regarding Vincent's response to therapeutic treatment that he, "has repeatedly expressed concern that he will not have the support of other people once he becomes an adult." (CT 406.) Finally, the author of the report stated that, "Vincent, both in the past and recently, has had contact with his mother through letters."

On August 23, 2005 Diane wrote to inform the social worker that she intended to attend all hearings and the trial by telephone. (CT 411.) On October 18, 2005 the court held an "evidentiary" hearing regarding Diane's modification petition and the permanency planning hearing. (CT 413.) The court appeared to have changed the type of hearing from that of an evidentiary hearing to a hearing to determine whether there would be an evidentiary hearing on Diane's modification petition. (RT 4.) Apparently on September 20, 2005 the court decided to change the evidentiary hearing to a preliminary hearing done by argument and did not permit any evidence to be brought forth. (RT 11.)

County counsel objected to Diane appearing telephonically for fear that confidential information would be presented at the hearing and Diane, based on her history of disclosing confidential information on the internet, would again violate court orders. (CT 413; RT 5-6.) On the telephone, Diane denied ever violating court orders and accused minor's counsel of lying in saying that Vincent did not want to have any contact with Diane. (RT 7-9.) Diane was not able to personally attend the hearing as she was then residing out of state. (RT 9.) Diane's attorney argued that Diane would have the right to personally appear if she was present; therefore, the circumstances were not significantly different by her telephonic appearance. (RT 6.) The court ended the telephone call with Diane prior to the substantive portion of the hearing, citing the reason that she had not been able to maintain confidentiality in the past. (RT 10.)

Yet, Diane reports that several people not connected to her case were present in the courtroom for previous hearings. Diane asked who these people were and was told that they were "trainees" or lawyers who were interested in her case. Diane was not asked for permission to allow these persons to be in attendance to hear or monitor these hearings. Further, Diane reports that Judge Edwards pointed to her and in a hostile manner said that no one would believe Diane because, he said, "You're in jail!"

The court acknowledged that there had been a sufficient change in circumstances and, therefore, the only issue for the hearing was whether Vincent would benefit from the requests in Diane's modification petition. (RT 16.)

Diane's counsel urged the court to reconsider the prior finding that face-to-face contact between mother and son would be detrimental to the emotional well-being of the child, as well as the restraining order, because there was no current evidence to support those findings and orders. (RT 11, 13.) Those findings and orders were based on hearsay statements without any specific, identifying information such as exactly what was said, when the statements were made, the context in which the statements were made and to whom. (RT 11-12.) When she was on the telephone participating in the hearing, Diane claimed that she should have the right to present evidence to the court regarding her petition. (RT 9.) She desired that her son testify on his own behalf, since Vincent is now 12 years old. (RT 10.) Vincent was not allowed to attend any of the hearings which is a violation of State, Federal and International law.

County counsel argued that Vincent had been reliving the drama of his kidnapping in therapy for years and is still daunted by it; therefore, he still fears his mother. (RT 13.) Yet the police reports prove the opposite, that Vincent fears agents of California. County counsel claimed that Diane was using these proceedings and her son's situation for her political campaign in the public arena regarding the injustice of it all, rather than about Vincent's best interest. (RT 14.) However, Diane's love and concern for her son was the catalyst for her public campaign to reform the judicial system and the child protection laws errantly written decades ago without foresight of the horrific ramifications suffered by children and families they intended to "protect."

Diane's public campaign brought to light the hundreds of thousands of victims of the ill-conceived child protection system and the consequences of homelessness, drug addiction and other social problems caused by foster children released at the age of 18 without any further assistance from the State. Diane's advocacy as an international child and family advocate has resulted in many new laws passed and signed by President Bush, such as the Amendment Prohibiting Forced Drugging and the Child Trafficking laws. Diane's advocacy work in Canada sparked the removal of Gray Davis in California and the removal of Paul Martin in Canada, replaced by Governor Schwarzenegger and Canadian Stephen Harper. Diane is currently a regular contributing columnist on a major online Washington political newsletter which gets at least 14,000 hits per day and RSS feeds that send Diane's articles all over the world blogsphere. Diane appears in a film documentary with Neil Bush, the President's brother, Michael Moore, and many physician experts and educational professionals who support Diane and give expert testimony to her case.

Vincent's attorney agreed with county counsel that Diane seems incapable of not being the focus of her own attention. (RT 15.) She expressed her belief that Diane could not be trusted to respect any of the court's rules, which precluded her from being able to be a part of Vincent's life, even though he desperately needs a family to be there for him. (RT 15.) She did not believe there was a change in circumstances. (RT 15.) In fact, Diane has selflessly worked day and night as a volunteer on her child and family advocacy issues and serves as a martyr, according to Diane's lawyer in Canada at her refugee hearing. Diane contends that her political and religious views should not be a condition of having her child returned to her custody, as our Constitution allows for freedom of speech and freedom of religion.

The County wishes to impose their Orwellian philosophy on parents, which is a violation of State, Federal and International law. Forcing dangerous drugs on a small child is severe abuse by the State and tantamount to assault with a deadly weapon. The FDA has recently issued a black-box warning on "ADHD" drugs after close to 75 deaths of children have been officially reported as a result of these drugs. The field of Psychiatry and Psychology is also a pseudo-science that has absolutely no medical evidence-based fact and is in the realm of sorcery.

The court took the matter under submission and later presented his written opinion. (RT 16; CT 415-419.) The court explained that visitation between Vincent and his mother was considered at each hearing, based upon updated information, and had always previously concluded that visits would be detrimental to Vincent. (CT 416-417.) These decisions were based upon the court's opinion that the court had no assurance that the mother would not attempt to abduct Vincent again; the court had no confidence that Diane would follow any court orders based upon her past conduct; the minor was frightened of his mother and feared a repeated abduction; and that the minor was still working on overcoming his fears, which consumed his life and were at the base of his fragile sense of security. (CT 417.)

In fact, it was the County who kidnapped Vincent from his legal custodian mother without an investigation, without a court order and without due process. Vincent was never frightened of his mother but, as the police reports indicate, he is "scared to go back to California" because "California is a bad place where bad police were after them." The police reports also state that Vincent had requested that that the social worker call the cops to take him back home. The notes by the social worker taken at visitation between Diane and Vincent in the Children's Shelter state that Diane cannot talk about Jesus or the visit will terminate. This is an appalling violation of freedom of religion and constitutes extreme persecution of Christianity. Further, freedom of religion was grossly violated by the forced indoctrination of Vincent with the homosexual agenda.

The court was satisfied that there had been changed circumstances since Diane had reappeared and seemed to have stabilized her life. (CT 417.) In fact, Diane's life was de-stabilized only as a result of persecution by the County. Diane had a very successful past, including owning her own homes, two of which were mortgage-free. Diane had a series of prestigious jobs, including working as a legal assistant, at the University of British Columbia, Department of Family Practice, and for the Film Industry in Canada. Diane was a notary public for the State of Hawaii for 8 years and a notary public for the State of California, as evidenced by copies of her commissions submitted to the court.

The truth is that the County of Santa Clara stole her money, wrongfully incarcerated her and Vincent, and set her free from jail penniless with no place to go. She was not offered any assistance by the County upon release from jail. She was rendered homeless in Hawaii where she subsequently got hired as Legislative Researcher for the State Capitol there. This proves the resourcefulness and resiliency of Diane and her dedication to keep herself active to be available for her son. Regarding whether the proposed changes would serve the best interest of the child, the court disagreed that Diane could provide a family setting and attend to his needs since she did not do so when she was provided with reunification services, and since she had never articulated an understanding of her son's serious emotional problems. (CT 417.)

However, Vincent's emotional problems are the direct result of the torture of Vincent in the institution where he was placed. Vincent never had any emotional problems until he started attending public school in Santa Clara County. The physician at Valley Medical Center stated in his report that Vincent was "well developed and well nourished." However, Vincent's medical records were never released to the court. In fact, the medical records of thousands of patients were stolen from the Valley Medical Center in a criminal attempt to destroy the evidence. The court concluded from Diane's letters to her son that nothing was ever wrong with her treatment of her son, nothing was then wrong with him, and nothing was wrong with her capacity to parent. (CT 418.)

Based upon all of the above the court concluded that contact other than what was currently permitted would not serve the best interests of the child and there was no indication that evidence would be adduced that would demonstrate that the minor's best interests would be served by having any additional contact with his mother; rather, that additional contact could be harmful to the child. (CT 418.) The court denied Diane's modification requests. (CT 418.)

ARGUMENT

  1. A SECTION 388 HEARING IS REQUIRED UPON A PRIMA FACIE SHOWING OF CHANGED CIRCUMSTANCES AND BEST INTERESTS OF THE CHILD.
  2. In seeking to change an order, a parent's section 388 petition must include facts showing: (a) any change of circumstance or new evidence that may require changing the order, and (b) that the best interests of the child may be promoted by the proposed change of order. (In re Daijah T. (2000) 83 Cal.App.4th 666, 672, 99 CalRptr.2d 904, 909.) "The petition for modification must be liberally construed in favor if its sufficiency." (Cal. Rules of Ct., Rule 1432(a); see also In re Hashem H. (1996) 45 Cal.App.4th 1791, 1799, 53 Cal.Rptr.2d 294, 298.) If the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing. (In re Jasmon O. (1994) 8 Cal.4th 398, 415, 33 Cal.Rptr.2d 85; In re Daijah T., supra, 83 Cal.App.4th at 673, 99 Cal.Rptr.2d at 909.)

    Only a prima facie showing is required to trigger the right to proceed by way of a full hearing. (In re Daijah T., supra, 83 Cal.App.4th at 673, 99 Cal.Rptr.2d at 909.) "A 'prima facie' showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited." (Id., quoting In re Edward H. (1996) 43 Cal. App.4th 584, 593, 50 Cal.Rptr.2d 745.)

    Applying these rules of law to this case, Diane had the right to a hearing on her section 388 petition since she made a prima facie showing (a) of changed circumstances or new evidence and (b) that the best interests of the child may be promoted by her proposed change of order. Diane sought to change her son's placement into her care with family maintenance services, or, in the alternative, to grant her reunification services, including visitation, and provided the court with supporting documentation. (CT 364, 438-456.) She did not request that the order be changed without a hearing; she simply requested a hearing. (CT 365.)

    The juvenile court expressly found that changed circumstances existed. (CT 417.) However, the court concluded that "a hearing on the Petition for Modification is not justified by the claims that the minor's best interests would be served." (CT 418.) The court agreed that Vincent feared his mother and did not comment on whether statements regarding those fears were recent, taken out of context, or relayed by credible reporters. Without allowing evidence to be presented or witnesses to be cross-examined by Diane's counsel, the court determined that Diane did not have a right to a hearing on her § 388 petition because she had not made a prima facie showing that the proposed changes would be in Vincent's best interests.

  3. WHETHER A PRIMA FACIE SHOWING WAS MADE IS A QUESTION OF LAW SUBJECT TO DE NOVO REVIEW.
  4. In general, the issue of whether a petition or other pleading on its face makes a prima facie showing is a question of law that is subject to de novo review. (e.g., Du Charme v. Int'l Broth. Of Elec. Workers, Local 45 (2003) 110 Cal.App.4th 107, 112, 1 Cal.Rptr.3d 501, 504; Shroeder v. Irvine City Council, (2002) 97 Cal.App.4th 174, 184, 118 Cal.Rptr.2d 330, 338; see also In re Miguel E. (2004) 120 Cal.App.4th 521, 543, 15 Cal.Rptr.3d 530, 546 (Questions of law are subject to de novo review.). In the recent case of In re Alanna A. (2005) 135 Cal.App.4th 555, 562, 37 Cal.Rptr.3d 579, 583, the appellate court held that, "(w)hen the facts are not disputed, the effect or legal significance of those facts is a question of law. [cite] We resolve questions of law de novo." Because section 388 petitions are to be "liberally construed" in favor of their sufficiency, and the supporting facts and evidence are to be assumed to be true, it is a question of law whether a petition has been adequately pleaded so as to trigger the right to an evidentiary hearing. Therefore, determining whether Diane made a prima facie showing that her proposed change of order would be in the best interests of Vincent is subject to de novo review by the Court of Appeal.

    In several decisions involving the issue of whether a juvenile dependency court properly denied a § 388 petition without a hearing, appellate courts have, in fact, conducted an independent review even though the "de novo" standard of review was not expressly identified. (See, i.e., In re Daijah T. (2000) 83 Cal.App.4th 666, 99 Cal.Rptr.2d 904; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 60 Cal.Rptr.2d 557; In re Hashem H. (1996) 45 Cal.App.4th 1791, 53 Cal.Rptr.2d 294.) The appellate court in In re Daijah T, supra, provided a detailed, independent review of the mother/petitioner's allegations and concluded that "the trial court erred in denying her an evidentiary hearing on her section 388 petition." (In re Daijah T, supra, 83 Cal.App.4th at 676, 99 Cal.Rptr.2d at 911.) Likewise, in In re Hashem H., the appellate court concluded that the trial court "erroneously" denied a hearing on the mother's section 388 petition. In reaching this conclusion, the court provided an in-depth review of the facts, including a "fair reading" of the petition, and found an "adequate" prima facie showing "which required the court to hold a hearing.". (In re Hashem H., supra, 45 Cal.App.4th at 1793, and 1799-1800, 53 Cal.Rptr.2d at 293 and 299.)

    Finally, the appellate court in In re Elizabeth M., supra, conducted an independent and detailed review of the allegations in the section 388 petition and held that the juvenile court was "justified" in denying the petition without a full hearing because there was no showing that a change in placement would promote the child's best interests. (In re Elizabeth M., supra, 52 Cal.App.4th at 318, 60 Cal.Rptr.2d at 559.) The actual independent review behind each of these decisions confirms that the appropriate standard of review in the present case is "de novo."

    Had the trial court granted Diane a full, evidentiary hearing, then an "abuse of discretion" standard of review would be proper on appeal. (See, In re Stephanie M. (1994) 7 Cal.4th 295, 27 Cal.Rptr.2d 595.) In In re Stephanie M., the California Supreme Court stated that a juvenile court's decision on a section 388 petition, after a full hearing involving extensive testimony and evidence, could not be disturbed on appeal without a clear showing of an abuse of discretion. (Id. at 319, 27 Cal.Rptr.2d at 608.) Since an evidentiary hearing was not granted in the case presently before the Court of Appeal, the "abuse of discretion" standard is not applicable.

    Many appellate courts have incorrectly stated either that a juvenile court has "discretion" to conduct an evidentiary hearing on a section 388 petition or have used the term "abuse of discretion" in analyzing whether a juvenile court properly denied a section 388 petition without a hearing. (See In re Ramone R. (2005) 132 Cal.App.4th 1339, 34 Cal. Rptr.3d 344; In re Brittany K. (2005) 127 Cal.App.4th 1497, 26 Cal.Rptr.3d 487; In re Josiah S. (2002) 102 Cal.App.4th 403, 125 Cal.Rptr.2d 413; In re Angel B. (2002) 97 Cal.App.4th 454, 118 Cal.Rptr.2d 482; In re Anthony W. (2001) 87 Cal.App.4th 246, 104 Cal.Rptr.2d 422; In re Aljamie D. (2000) 84 Cal.App.4th 424, 100 Cal.Rptr.2d 811; In re Zachary G. (1999) 77 Cal.App.4th 799, 92 Cal.Rptr.2d 20; In re Hirenia C. (1993) 18 Cal.App.4th 504, 22 Cal.Rptr.2d 443; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 5 Cal.Rptr.2d 148.) However, the court in each of these decisions used the language "discretion" or "abuse of discretion" summarily without substantive analysis, and many simply cite to prior summary holdings without comment. Each of these cases falls into at least one of the following three categories:

    • There is no supporting articulated rationale or cited authority: In In re Zachary G., supra, 77 Cal.App.4th at 808, 92 Cal.Rptr.2d at 26, after a detailed analysis of the § 388 petition's allegations, the court concluded that there was "no abuse of discretion" in denying a hearing because the petition did not present any evidence or allegations of best interests. No authority whatsoever was cited for applying the "abuse of discretion" standard.
    • The cited authority is the case of In re Stephanie M., which involved a full evidentiary hearing and thus is not applicable: The appellate court in In re Josiah S., supra, 102 Cal.App.4th at 419-20, 125 Cal.Rptr.2d at 423-24 stated that the "abuse of discretion" standard applied, and cited only Stephanie M. as authority, without any substantive analysis. After analyzing the record and the petition's allegations in detail, the appellate court determined that the summary denial of the § 388 petition ought to have been set aside due to the appellate court's "lack [of] confidence" in the trial court's decision.
    • The relevant statements are based upon misinterpretations of cited authority:
      1. The court in In re Jeremy W., supra, 3 Cal.App.4th at 1413, 5 Cal.Rptr.2d at 152 incorrectly relied solely upon In re Heather P. (1989) 209 Cal.App.3d 886, 891, 257 Cal.Rptr. 545, when it held that § 388 gives the court "discretion" to provide a hearing on a petition. In re Heather P. was a case which did not contain language to support an inference that a court has discretion to conduct a hearing. Rather, the Heather P. court reviewed the § 388 petition's allegations and supporting documents in detail and ultimately found that the petition presented "a strong prima facie showing" that required an evidentiary hearing. The error of the Jeremy W. court continued to permeate into future cases whose courts relied upon In re Jeremy W., thereby setting faulty precedent. Some of these cases are outlined below.
      2. After an analysis of the § 388 petition's allegations, the appellate court in In re Hirenia C., supra, 18 Cal.App.4th at 516-17, 22 Cal.Rptr.2d at 450-51, concluded that the juvenile court had "abused its discretion" in denying the petition without an evidentiary hearing. The Hirenia C. court cited only In re Jeremy W., supra, for supporting authority.
      3. In In re Aljamie D., supra, 84 Cal.App.4th at 424, 100 Cal.Rptr.2d at 811, the appellate court held that the juvenile court has "discretion" to provide a hearing on a § 388 petition; citing only In re Jeremy W., supra, for supporting authority.
      4. In In re Anthony W., supra, 87 Cal.App.4th at 250, 104 Cal.Rptr.2d at 424, the appellate court held that the summary denial of a § 388 petition is reviewed for "abuse of discretion;" citing only In re Jeremy W., supra, for supporting authority.
      5. The appellate court in In re Angel B., supra, 97 Cal.App.4th at 460, 118 Cal.Rptr.2d at 487, held that the court reviews summary denials of § 388 petitions for "abuse of discretion;" citing only In re Anthony W., supra, for supporting authority.
      6. The appellate court in In re Brittany K., supra, 127 Cal.App.4th at 1505, 26 Cal.Rptr.3d at 492, held that the standard of review is "abuse of discretion," without any substantive analysis, and cited In re Stephanie M. [involving a full evidentiary hearing], In re Anthony W. [merely citing In re Jeremy W.], and In re Zachary G. [citing no authority].
      7. The appellate court in In re Ramone R., supra, 132 Cal.App.4th at 1348, 34 Cal.Rptr.3d at 350, held that the applicable standard of review is "abuse of discretion," and cited only In re Brittany K., supra, as authority, without any substantive discussion.

    The mere repetition of an inaccurate rule of law, without any explanation or substantive analysis, does not enhance its credibility nor transform it into a principle of truth. Therefore, these cases do not present solid precedent, despite their quantity. In addition, because so many appellate courts cited to In re Jeremy W., supra, 3 Cal.App.4th 1407, 5 Cal.Rptr.2d 148, without commenting, that case is worthy of additional elaboration.

    The appellate court in In re Jeremy W. cited In re Heather P., supra, 209 Cal.App.3d 886, 257 Cal.Rptr. 545, as the sole support for its ruling that section 388 "gives the court discretion whether to provide a hearing on a petition alleging changed circumstances." (In re Jeremy W., supra, 3 Cal.App.4th at 1413, 5 Cal.Rptr.2d at 152.) A close reading of In re Heather P., however, reveals that the decision does not provide any support for that holding. In In re Heather P., the juvenile court had refused to allow mother/appellant to present evidence supporting the mother's desired custody change at a permanency planning hearing. The juvenile court had indicated that the appropriate procedure to challenge a custody order was to file a section 388 petition. (In re Heather P., supra, 209 Cal.App.3d at 889, 257 Cal.Rptr.2d at 547.) The mother appealed, arguing that the procedure for a section 388 petition was "inadequate to protect her due process rights because it gives that court discretion to determine whether to grant a hearing." (Id. at 891, 257 Cal.Rptr.2d at 548.) The appellate court expressly rejected this argument as being "without merit", stating:

    The court is required to construe liberally the petition in favor of its sufficiency. (Rule 1393(a).) Thus, if the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing. (Id.; emphasis added.)

    Moreover, the Heather P. court also held that if the juvenile court determines that the best interests of the child may be promoted by a proposed custody change under section 388, "it must order a hearing on the matter." (Id.; emphasis added.) The decision in In re Heather P. simply does not contain any language to support an inference that a juvenile court has "discretion" whether to conduct an evidentiary hearing on a section 388 petition. That was merely the argument made by the appellant in that case, which was soundly rejected by the appellate court. Instead, the language used by the Heather P. court is clear that if a section 388 petition states a prima facie case for modification of a prior court order, a juvenile court must, as a matter of law, conduct an evidentiary hearing on that petition.

    The Jeremy W. court undoubtedly misinterpreted the language used in In re Heather P.; therefore, neither In re Jeremy W., nor the line of cases that cite to In re Jeremy W. without comment or analysis, provide valid precedent for an application of an "abuse of discretion" standard of review in the present case. De novo review applies.

    1. ALTERNATIVELY, THE APPLICABLE STANDARD OF REVIEW WOULD BE A FOCUSED, RATHER THAN GENERALIZED, ABUSE OF DISCRETION.
    2. Despite case law to the contrary, if this Court of Appeal finds that the appropriate standard of review is "abuse of discretion," instead of "de novo," then the "discretion" at issue is not the "generalized extensive discretion to determine the best interests of a minor." (See In re Jeremy W., supra, 3 Cal.App.4th 1407, 5 Cal.Rptr.2d 148.) Because of the petitioner's right to procedural due process and a full and fair hearing, the lower court will be deemed to have abused its "discretion" if it failed to grant a section 388 hearing upon a prima facie showing of changed circumstances and best interests of the child. (Id.) This "abuse of discretion" review is more focused than that which applies to the denial of a section 388 petition after a full evidentiary hearing has occurred because of the mere prima facie requirement, which is focused upon only those two elements.

      In Jeremy W. the mother/petitioner appealed from a superior court order terminating her parental rights after her section 388 petition to modify or set aside an earlier order terminating reunification services was summarily denied without a hearing. In part, the mother argued that (a) the trial court abused its discretion by denying her section 388 motion to modify its order terminating reunification proceedings without conducting a hearing to evaluate her claim of changed circumstances, and (b) the termination of her parental rights violated the guarantee of due process granted by the Fifth Amendment of the United States Constitution.

      The Court of Appeal in Jeremy W. set forth the applicable standards of law for granting a hearing on a section 388 petition. Specifically, the court noted that the petition must be "liberally construed in favor of its sufficiency" and that a hearing "will" be granted if the petition presented "any evidence" that it would promote the best interests of the child. (Id. at 1413-1414, 5 Cal.Rptr.2d at 152.) The Court further held that the mother "needed only to show 'probable cause'; she was not required to establish a probability of prevailing on her petition." (Id. at 1414, 5 Cal.Rptr.2d at 152.) The court then turned to its review of the record: "[a]ccordingly, we search the record to see if even a liberal interpretation of the proffered evidence of changed circumstances might not justify modifying the order terminating reunification." (Id.) After an extensive and detailed analysis of the petition's allegations and supporting documents, the court concluded that the mother had presented "a strong prima facie showing" and that the lower court's "summary denial without affording a hearing is not supported by the record." (Id. at 1416, 5 Cal.Rptr.2d at 154.) The court then reversed the judgment with instructions for the lower court to conduct a full section 388 hearing. (Id. at 1409, 5 Cal.Rptr.2d at 149.)

      The Department of Social Services in Jeremy W. did not attempt to justify the denial of a hearing on appeal; instead, it referred to the lower court's "generalized extensive discretion to determine the best interests of a minor." (Id.) The Court of Appeal expressly rejected that standard:

      This general proposition is pertinent when a reviewing court applies its "abuse of discretion" standard when reviewing final determinations on the merits underlying a section 388 petition. However, the issue here is the right to procedural due process to permit a full and fair hearing on the merits. (Id.; emphasis added.)

      The court then held that case precedent only required the mother to make a prima facie showing to trigger the right to a full hearing, and since she had made that showing, the trial court erred in its denial of her petition. (Id.)

      In summary, the Court of Appeal in In re Jeremy W. indicated that when the "abuse of discretion" standard of review is applied to a section 388 petition that was denied without a hearing on the merits, such as in the present case, then the "discretion" at issue is not the "generalized extensive discretion" that a juvenile court usually has in determining the best interests of a child. Instead, procedural due process and the right to a full and fair hearing mandate a finding that a lower court abused its "discretion" if the court failed to grant a section 388 hearing when the petition presented a prima facie showing that triggered the petitioner's right to a full evidentiary hearing.

      This more focused standard of considering abuse of discretion would apply in the present case. Here, the juvenile court erred in denying Diane's section 388 petition without a hearing. Consequently, such denial violated her constitutional right to due process. As set forth in detail below, Diane's petition made the prerequisite prima facie showing, which triggered her right to a full evidentiary hearing. Therefore, under the reasoning of the Jeremy W. court, the juvenile court in this case abused its discretion by summarily denying her petition.

    3. DIANE WAS ENTITLED TO A HEARING UNDER EITHER "DE NOVO" OR "ABUSE OF DISCRETION" STANDARDS OF REVIEW.
    4. Under either standard of review, Diane has made a prima facie showing that transitioning Vincent into her care, or alternatively, granting her visitation and reunification services, would be in Vincent's best interest. Diane met the first prong of section 388 by proving that her circumstances had changed sufficiently. The lower court was satisfied that there had been changed circumstances since Diane had reappeared and was in contact with the court, she no longer had outstanding bench warrants and she had stabilized her life. (CT 417.) The court's sole focus was on Vincent's best interests. Therefore, the issue on appeal is whether Diane showed mere probable cause that her requests were in her son's best interest.

      Diane's petition satisfied the requisite prima facie showing because (1) the juvenile court expressly stated that it was "satisfied that there have been changed circumstances" and (2) the petition alleged facts that, if proved true at the evidentiary hearing, would have shown that the relief requested in the petition was in the best interests of the child.

      1. Vincent desires to continue having contact with his mother and has no other permanent plan other than to remain institutionalized.
      2. When determining a child's placement after the termination of reunification services, the court's sole task is to determine the child's best interests. (In re Stephanie M., supra, 7 Cal.4th at 320.) In determining best interests in this context, a primary consideration is the goal of assuring the child "stability and continuity." (Id. at 317.)

        Vincent has resided in an institution since he was seven years old. He is now twelve years old and all reports indicate that he will remain there for an uncertain amount of time. (CT 393.) Vincent was sexually molested while under the care of the Department. (CT 182.) He has gone through at least three social workers and two therapists while in placement. (CT 265, 388, 390.) The only constant adult in his life has been his C.A.S.A., who only visits him twice a month at best. (RT 11; CT 123.) Residential staff reported that Vincent longs to belong to and live with a family. (CT 394.) In a separate report from the institution, Vincent was said to have expressed concern that he will not have the support of other people once he becomes an adult. (CT 406.)

        Diane is willing and able to provide Vincent with the love and support he craves from a family. She was prepared to provide the court with evidence of community support she has to enhance her parenting of Vincent. (CT 364.) She had an apartment, a credit card, a job, had participated in a domestic violence program and was not involved in a relationship. (CT 241, 364.) She had received clemency from the governor regarding the abduction charge and did not have a history of mental health hospitalizations. (CT 364, 444.) Diane's past proven ability to care for her child is evidenced by Vincent's emotional and physical health prior to the abduction of Vincent by the County. Vincent's emotional and physical problems were caused by his trauma being ripped from his mother and any semblance of a normal life as a result of his institutionalization. Diane's problems are the result of persecution by the County, including slander and character assassination by the social workers who perjured themselves in an attempt to cover up for their criminal and negligent actions.

        Diane's case has been accepted by the new North American criminal court, Inter-American OIS. A case number has been assigned and her case is currently under investigation. Judge Edwards has resigned and Rob Reiner, who collaborated with Judge Edwards has also resigned from his post at the Children's Commission and is currently under investigation by the State for misuse of public funds. The CASA adminstrator appointed by Judge Edwards has been fired and the Administrator of HHS is under investigation for sexual trafficking in children.

        Although by some accounts, which are unclear as to who reported them and when, Vincent was not ready to see his mother, Vincent's therapist was able to provide recent information that Vincent was interested in contact from his mother. Vincent would appear pleased to receive mail from his mother and yet was detached emotionally. (CT 392.) However, the professionals involved with Vincent should expect Vincent to detach emotionally from his mother as a survival technique. His mother warned him that if they were discovered in Canada, he would never see his mother again, and that premonition is exactly what happened. Similarly, he has fears of being left by adults who have gotten close to him because his mother told him that if they ever got separated she would go to jail and they would never see each other again. That is exactly the truth that has occurred for this family.

        Vincent has expressed interest in the cards and pictures sent by his mother as recently as December, 2004. (CT 392.) Vincent asked many questions and speculated about his mother's true feelings for him. (CT 392.) He discussed with his therapist his confusion related to his own feelings about his mother. (CT 392.) Earlier, in July, 2004, Vincent told his therapist that he was glad to know that his mother was still alive. (CT 392.) Having spent six years in an institution with only written contact from his mother, naturally, Vincent expressed his fear about being ripped apart from his mother as he cried and screamed for her which are the traumatic experiences for him. Yet, when Vincent had not received any mail from his mother for a long time, he worried about whether she was sick. (CT 295.) In fact, the letters from his family were withheld from Vincent which is severe abuse and an evil attempt to psychologically torture this child and his family.

        Clearly Vincent still cares about his mother. He might be confused about what their relationship is or should be, but he seems to enjoy hearing from her. Vincent deserves to enjoy the remainder of his childhood living at home, rather than in an institution. He and his mother should be prepared for visits and telephone calls so that he might be able to transition back home where he will be loved.

      3. Vincent would benefit from his mother being provided with reunification services.
      4. Diane is prepared to care for her son, yet none of the professionals were working earnestly with Vincent to prepare him for that possibility. The judge opined that neither Diane nor Vincent were ready for them to be placed together. (CT 417.) However, the judge did not comment on whether Diane would benefit from reunification services, other than to incorrectly claim that she would not participate in services in the past. (CT 417.) Diane demonstrated her willingness to comply with her case plan by trying to get services through the Canadian government where she lived in Vancouver.

        Once Diane was residing in Canada and Vincent had been returned to Santa Clara County, Diane actively s ought reunification services. From September, 2001 until January, 2001, the social worker never attempted to provide Diane with services even though her address in Canada was known. (2CT 41, 45) Finally, a few weeks before the twelve-month review (at which the social worker recommended terminating reunification services), the social worker had mailed to Diane several referrals for Diane to complete her case plan. However, special approval of the Canadian Ministry for Children was a necessary prerequisite for Diane to participate in services since they would not open files for parents whose children were not living with them. (2CT 41, 45) It does not appear from the record that the social worker requested special approval of the Canadian Ministry for Children. Additionally, some of the Canadian service providers required that the child live with the parent as a criterion for acceptance into their program, further limiting Diane's access to services. (2CT 45.) The social worker informed the court that she had provided Diane with appropriate services although she did not mention these limitations enunciated by the social worker from Canada. (2CT 29.)

        Reunification services were terminated on February 1, 2001, even though Diane was not able to overcome the governmental obstacles and the social worker did not request special approval as was the process outlined by the Canadian social services. On her own while incarcerated in Santa Clara County in 2003, Diane participated in a communication skills class, and participated in the Substance Abuse Rehabilitation Program, even though she never abused any substances and has always been drug and alcohol free. She completed a domestic violence group program, even though she was never a victim of domestic violence and there are no criminal records to indicate that anyone involved with Diane or Vincent were ever convicted of domestic violence. (CT 239-241.)

        Admittedly, there were and continue to be issues for Diane to work on in order to provide a healthy, family environment for her son, who is institutionalized and emotionally disturbed. The court was concerned that Diane had not acknowledged that her son has any emotional problems and that she continued to violate court orders by publicizing her view of her son's situation, "to the world in an argumentative and inaccurate fashion." (CT 417.) This is Diane's constitutional right to freedom of speech. Diane is an international advocate for children and families who had a Petition to the United Nations adapted and which was instrumental in implementing discussions to reform the child protection system. Diane's work caused new Bills to be passed and signed by President Bush. Diane has countless VIPs on her side and the support of many international organizations.

        Diane has a human and constitutional right to argue laws which are hostile to the Family, which is the fundamental group unit of society. Diane has a right to educate the public and to spur discussions to change public policy which is harmful to children and families. The County has no right to force their political beliefs on Diane in order to have her child rightfully returned to his family. Diane's spiritual and religious beliefs are contrary to the pseudo-science of psychiatry and pharmacology which in her eyes remain in the realm of sorcery.

        The effect of the juvenile court's opinion is that the court would prefer to allow Vincent to languish in an institution rather than offer his mother assistance in an effort to reunify them. This is evidence that the court is not acting in the best interests of her child, but rather in their own political and financial best interests. Diane's occupation is legislative researcher and report writer. Therefore, the court cannot dictate that Diane can not make a living by doing what comes natural to her motherhood and her God-given abilities as a writer and editor. Whether Diane has personal political interests is also of no business to the court. These issues have nothing to do with Vincent's best interest, which is to belong to his biological family, his God-given right as a human being.

        Since reunification services were terminated, no one ever informed Diane what portions of her letters were inappropriate and why. Vincent could go without receiving any letters due to their inappropriate content; however, he would not know his mother continued to write to him. He would only know that he is not getting any letters, which would cause him anxiety about her health and whereabouts as evidenced by his past disclosures to his therapist. This is felony child abuse by the County and parental alienation syndrome. Vincent was not born in California, and neither was Diane. They have no ties to the State. Therefore, Vincent must be returned to his home State of New York, where his biological family resides. There are more than adequate facilities in New York where Vincent can get the community assistance he may require. The taxpayers of California have no duty to incarcerate a child indefinitely at their expense, and the taxpayers have a right to know how their tax money is being squandered by those with personal financial, political and selfish interests.

      5. Diane has a due process right to cross-examine witnesses to determine Vincent's true, current desires regarding his relationship with his mother.
      6. Diane has shown the court that Vincent worries about his mother and enjoys getting letters from her. The court has accepted Diane's recent stability. Thus, Diane's petition presents sufficient evidence that a hearing would promote the best interests of Vincent. Since the law is clear that if there is any evidence that a hearing would promote the best interests of the child, the court will order the hearing. Since the court was aware that Diane's modification petition was contested by the Department and the child's attorney, the court must have ordered that a hearing be held within 30 calendar days after the petition was filed. (Cal. Rules of Ct., Rule 1432, subd. (d).)

        Procedural due process requires an evidentiary hearing be held to make a determination on a final judgment of the merits underlying a section 388 petition when applying the abuse of discretion standard of review, focused on the specific two prongs required under section 388. (In re Jeremy W., supra, 3 Cal.App.4th at 1416.) Since Diane had met her burden of making a prima facie showing that both prongs were met, she then had the right to procedural due process of a full and fair hearing on the merits.

        The court was provided with documents to show that Diane's requests were in Vincent's best interests, such as her employment and clemency status. The letters from Diane to her son, which the court had previously received, demonstrate that Diane's love and concern for her child's best interest are paramount in her endeavors. The summary of the therapist's notes regarding sessions with Vincent and the quarterly reports from the institution where Vincent resides exemplify the need for Diane to be able to cross-examine the authors of those documents to determine their credibility and to obtain recent evidence of Vincent's desires regarding contact with his mother.

        Diane has the legal right to cross-examine the person relaying this double hearsay statement, and to discover the time and context in which the perjurous statements were alleged to have been made. Diane's counsel pointed out to the court that in December, 2004 Vincent told his therapist that he was interested in contact with his mother and discussed his confused feelings about her. (RT 12-13.) The court should have allowed Diane's counsel to question witnesses to discover what Vincent feared. However, there is also evidence from the Canadian police that Vincent's overwhelming fear was of never seeing his mother again. (CT 446.) It is unknown whether Vincent's therapist has ever explored that fear with Vincent or assisted him in overcoming that fear. No one has ever offered to Vincent that he could see her again or asked him if that would help ease his anxieties. No one has told Vincent that he has a right to appear in court to testify on his own behalf.

        The court could not reasonably have made a decision without procuring the context of Vincent's statements and the credibility of the reporters. Consequently, the juvenile court erred in denying Diane a full evidentiary hearing on the merits. If, after conducting an evidentiary hearing, the court finds no current evidence to support prior findings of detriment and the restraining order, the court should order the Department to prepare Diane and Vincent for reunification, and the court should lift the restraining order against Diane and allow their exit from the State of California immediately to prevent the prosecution by the Federal government for Medicaid fraud, health care fraud and felony fraud by taking federal funds under false pretences.

  5. THE JUVENILE COURT IMPROPERLY FAILED TO FOLLOW PROCEDURE AND UNFAIRLY CAST DIANE IN A DISFAVORABLE POSITION.
  6. The court made an error in procedure and an error in the recitation of the facts. The procedural error was that initially the court found that Diane's petition stated a change of circumstances and that the best interest of the child may be promoted by the proposed modifications and, therefore, granted a hearing. (CT 365.) On the order attached to Diane's modification petition the court checked the box indicating that both components of section 388 had been met and that an evidentiary hearing should have been held. (CT 365.)

    Apparently without notice to appellant or counsel, the court changed the type of hearing from that of an evidentiary hearing to one in which the court would hear the arguments of counsel and then determine whether there would be an evidentiary hearing on Diane's modification petition. (CT 383; RT 4.) On September 20th, the court continued the hearing to October 18, 2005. (CT 386.) The type of proceeding was written as, "Whether evid hrg on 388. 366.3 trail (sic)" (CT 386.) However, the court acknowledged that a contested, evidentiary hearing had initially been set when the judge wrote that, "[p]rior to trial she has asked for extensive discovery relating to the minor's current situation." (CT 383; emphasis added.)

    Once the court found that both prongs of section 388 had been met upon a prima facie showing, Diane should have been granted a full evidentiary hearing. The court committed procedural error when it later denied hearing evidence and only allowed counsel to argue the case.

    Further, the court erred in its recitation of the facts which continually portrayed Diane disfavorably. For example, the court explained that the hearing, held October 18, 2005, regarding the modification petition, filed on April 8, 2005 took so many months due to continuance and discovery requests made by Diane and her attorney. (CT 415.) The hearing was initially scheduled for April 5, 2005 and was continued five times to the date it was eventually heard on October 18, 2005. (CT 370, 371, 380, 381, 383-386.) According to the record, the hearing was first continued for the Department to provide further information to the court. (CT 370.) This may have been when Diane's counsel requested discovery; however, the record is not clear. What is clear is that the court did not grant the disclosure of records to Diane's counsel until September 20, 2005. (CT 383.) Other continuance requests were made by the Department or the court did not indicate the reason. (CT 371, 380, 381.) Rather than blaming Diane for the several months it took the court to hear her petition, the court should have fairly relayed that she requested discovery that took time in obtaining and releasing to her before a contested hearing could be held. Vincent's medical records were never produced and, in fact, were stolen and destroyed by a thief from the Valley Medical Center in a desperate attempt to cover up the truth that Vincent was never injured or required any hospitalization until he was abducted by the county.

    The court also provided an historical summary of the case, including misinformation that Diane was brought back to Santa Clara County in custody to face the abduction charges in 2001. (CT 416.) In reality, Diane turned herself in to Canadian authorities in 2003, and was then brought to Santa Clara County where she pled to a misdemeanor. (CT 163, 164, 235, 237.) Additionally, the court stated that in June, 2003 Diane filed a similar petition for modification; however, she failed to appear for the hearing and was representing herself at that time. (CT 416.) Diane was, in fact, represented by counsel at that hearing and her counsel withdrew her petition. (CT 262.)

    Taken in their totality, these errors indicate a severe bias against Diane. The biases produce a climate in which only a decision adverse to Diane could have been made. Had this been done in a neutral fashion, then an independent decision could be rendered. The negative portrayal of Diane by the court prejudiced her in that no fair adjudication could have been made.

CONCLUSION

For the foregoing reasons, appellant respectfully requests this Court to remand the case the case to the Superior Court to conduct a full evidentiary hearing on appellant's modification petition, hear evidence consistent with and as required by the law, and make new findings and orders accordingly.

DATED: March 20, 2006
Respectfully submitted,
By: ____________________________
ALLISON BRUMBACH
Attorney at Law
Associate of the Sixth District Appellate Program
100 Doyle Street, Suite A
Santa Cruz, California 95062

CERTIFICATION OF COUNSEL
Pursuant to Rule 14(c)(1), I hereby certify that the number of words in the foregoing brief are 11,303, including footnotes, based on the word count of the computer program used to prepare the brief.
Dated: March 20, 2006
______________________
Allison Brumbach
Attorney for Appellant, Diane B.