Each day in the United States, more than 3 children die as a result of child abuse in the home.

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