In re Vincent B.

Filed 8/14/07 In re Vincent B. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Diane B. appeals from an order entered after a post-permanency planning hearing that was held pursuant to Welfare and Institutions Code section 366.3.[1] She contends that the juvenile court deprived her of due process by denying her request to appear telephonically. She also contends that the juvenile court deprived her of her constitutional rights to free speech and companionship of her son when it ordered that she could receive a note from her son Vincent on condition that she not publish the note on the Internet or otherwise copy or distribute it. We find no error and affirm.

I. Statement of Facts[2]

In 1999, Vincent was removed from appellants care when he was six years old. The Santa Clara County Department of Family and Childrens Services (Department) filed a petition pursuant to section 300, subdivision (b), in which it alleged, among other things, that Vincent had been found alone and unsupervised, and that appellant and her boyfriend had physically abused him. Vincent had told the school principal that they hit him with a coat hanger. Vincent had also told his teacher on several occasions that appellant did not love him and that he was afraid of her. When the social worker arrived at appellants home, Vincent was alone. After the social worker mentioned appellant, he became hysterical and cried that he was not a bad boy. Vincent also reported that appellant and her boyfriend slapped him repeatedly. Neighbors corroborated Vincents claim that appellant hit Vincent. During the ensuing police investigation, appellant gave conflicting accounts regarding who had been caring for Vincent in her absence.

Appellant denied all allegations of the petition. In her opinion, she was a victim of Silicon Valley road rage, hateful acts of jealousy, evil lies and accusations. She was caught up in some trendy political child abuse hysteria closely resembling a witch hunt, an unmarried female perceived as a scarlet-letter woman who is envied, feared and hated, a blonde female from New York who has the nerve to travel the world. . . . She further concluded that she was a victim of a hate crime, an unorganized conspiracy of political, religious beliefs, jealousy and road rage, a holocaust persecution of blonde, blue eyed people. After appellant submitted the matter, the juvenile court sustained the petition, removed Vincent from her care, placed him at Eastfield Ming Quong, and ordered family reunification services.

The dispositional report recommended that Vincent be made a dependent of the court and placed in a community care facility, and that appellant receive family reunification services. Attached to the report were the psychological evaluations of appellant and Vincent. The psychologist concluded that appellant demonstrated evidence of a delusional disorder (persecutory type). In the psychologists opinion, Vincent had significant behavioral, emotional, and social difficulties. She also concluded that Vincent displayed characteristics consistent with those of children who have been physically and emotionally abused. The juvenile court declared Vincent a dependent of the court, and ordered family reunification services and continuation of Vincents placement at Eastfield Ming Quong.

In July 2000, appellant abducted Vincent from his placement and took him to Canada. After appellant was apprehended, Vincent required psychiatric hospitalization. He was eventually returned to the United States while appellant remained in Canada and sought political asylum.

In October 2000, appellant left a message for the social worker in which she stated: [Y]oure not going to get away with what you did to Vincent B[.] Your name has been documented and the United Nations and the World Court will prosecute you for crimes against humanity, and then you will burn in hell. Hundreds of thousands of people have your name. So no matter what happens to me, it doesnt matter, cause you will pay for what you did to Vincent. Vincent will not be forgotten. People are putting him as part of a quilt in Washington, D.C., his name and where he is. And your name will be damned forever.

In February 2001, appellant did not attend the 12-month review hearing. The juvenile court terminated reunification services, ordered no contact between appellant and Vincent, and adopted the permanent plan of long term foster care.

The report for the post-permanency planning hearing in February 2002 stated that only three of appellants 17 letters to Vincent were deemed appropriate. Some of the inappropriate letters were attached to the report. These letters made negative comments about the social worker, stated that California was a bad place with very mean and sick people who have fallen away from God, and urged Vincent to tell appellants lawyer that he wanted to live with appellant.

In 2003, appellant was returned to Santa Clara County to face a charge of child abduction.

In July 2003, Vincents attorney requested a restraining order against appellant after Vincents caretakers received a suspicious telephone call indicating that appellant was attempting to locate him. Appellant did not contest the matter, and the juvenile court issued a permanent restraining order.

The report prepared for the November 2003 hearing stated that appellants whereabouts were unknown, and there were warrants for her arrest. Vincent continued to refer to appellant in negative terms. Though he was making some progress in therapy, he continued to experience significant psychological problems. Appellant did not attend the review hearing.

The next review hearing was held in May 2004. According to the social worker, appellant had not communicated with Vincent in the past year. However, appellant claimed that Vincent was dead, continued to express her innocence, and sought help in pursuing legal action on various Web sites. Vincent remained in a residential treatment facility where he continued to speak about appellant in negative and fearful terms.

In April 2005, appellant filed a section 388 petition for modification in which she alleged that the conditions in her life had improved and that it would be in Vincents best interests if he were returned to her care. The Department opposed the petition based on the family history, the kidnapping, Vincents current emotional and behavioral needs, his fear of appellant, and the lack of changes in appellants circumstances.

Appellant then sent a letter to the social worker in which she claimed that she had no criminal record. She also stated: You must work to free Vincent and facilitate his return to me and his family. Unlike the Santa Clara County girls whose lives have been destroyed, you must know by now that I am a rare breed. This time they messed with someone from New York. [] If my son is not alive, that would be premeditated murder of a child, which would certainly carry a death sentence. If he is alive, you must protect his rights by law and allow him to testify on his own behalf. She informed the social worker that she would attend future hearings by telephone.

In October 2005, the social worker filed an addendum report that summarized Vincents relationship to appellant. He did not ask to send her letters or receive letters from her. He was afraid of her and did not want to live with her. During therapy, he expressed his desire for a mother who would not hurt him.

When the juvenile court held a hearing in November 2005 to determine whether there would be an evidentiary hearing on appellants petition for modification, appellant appeared telephonically. After the Department objected, she made a statement in which she accused the juvenile court of putting her in jail on bogus charges, claimed that she never violated a court order, and accused Vincents attorney of lying and violating the law. The juvenile court terminated the telephone call to preserve confidentiality. The juvenile court denied the petition on the ground that appellant had failed to show that her changed circumstances would serve the best interests of Vincent.

In June 2006, status review and addendum reports were filed. The social worker recommended that Vincent continue to be placed in a confidential care facility. He was taking three psychotropic medications and addressing various psychological issues in therapy. Due to his emotional and behavioral issues, the social worker stated that he was not a likely candidate for adoption or legal guardianship. He read cards that were sent by appellant and his maternal grandmother, but left them in his therapists office. Vincents treatment team recommended that appellant continue written communication with Vincent.

Appellant did not appear at the review hearing on June 27, 2006. Her request that she be allowed to appear telephonically was denied. The juvenile court ordered that its previous orders were to remain in effect.

After appellant requested two continuances, a review hearing was eventually held on February 6, 2007. The child advocate for Vincent submitted a report stating that Vincent was doing well in his placement and had recently been promoted to a higher academic class. The advocate recommended that he remain a dependent of the court. The social worker filed a request that the order for Vincents psychotropic medications be continued. Vincent had been diagnosed with autism and posttraumatic stress disorder.

The social workers report also discussed Vincents mental and emotional status: Vincent continues to participate in weekly individual therapy to address impulse control, building friendships, issues of safety, traumatic experiences and family relationship. The therapist also helps Vincent process the written communications by his mother and maternal grandmother. It has been Vincents decision to respon[d] to his mother or not and he has decided to write to his mother and grandmother about twice to express his appreciation for the gifts they sent him. Vincent does not ask the undersigned about his mother or maternal grandmother. He has expressed some thoughts to the undersigned and staff about not seeing his mother until he is eighteen even though he communicates to them by writing at this time. The therapist continues to provide therapeutic support to Vincent as he works through his past trauma as he has expressed mixed feelings [] regarding the current contact he has with his family through cards and letters. Vincent seems to be motivated to participate in therapy.

The report noted that Vincent was in the seventh grade, but was functioning between fourth and sixth grade level in reading, writing, and math. He was receiving special education services.

According to the social worker, Vincent had reported that his coping skills were improving and his self-harming behaviors had decreased. He preferred to be alone or with staff rather than with peers, but he was trying to improve in that area. The goal was to transition Vincent to a less restrictive setting or a specialized therapeutic foster home.

When the review hearing began, appellants counsel requested that she be allowed to appear telephonically. After counsel for the Department and Vincent objected on the ground that appellant had previously violated the confidentiality of the proceedings, the juvenile court denied the request. The juvenile court stated that it was not convinced that any admonishment to not record the proceedings or disseminate them publicly would be honored . . . .

The juvenile court next considered the issue of whether appellant was entitled to receive a copy of a thank you note that had been written by Vincent. Appellant sent Vincent a laptop computer for Christmas. She also provided him with her contact information, told him how he could search the Internet for information about himself, and gave him a phone number for an aunt without any name. Vincent wrote a thank you note in January 2007. Counsel for the Department requested that the note either not be released to appellant or that it be done with a protective order. Counsel was concerned about Vincents right to privacy, because appellant had publicized his previous notes on the Internet. Appellants counsel pointed out that there had been prior orders that appellant not post the social workers files or reports, but that appellant was never ordered not to post Vincents notes to her. She then stated: Im not suggesting its, my client should or should not post these on the internet. But what Im saying is theres nothing in this note that suggests the location of where he is, theres no particular personal information at all. Appellants counsel explained that appellant had been told by the social worker that she would receive the note and appellant was upset because she had not done so. The juvenile court ordered that the note be given to appellant and that she was not to publish it on any internet site, not to copy it or distribute it by any means of media and if this order is violated then in the future I will not be able to allow her to have these notes from her son.

The juvenile court then adopted the findings and orders that were recommended in the review report, including an order that Vincent remain in a community care facility with the goal of a less restrictive placement.

II. Discussion

A. Denial of Request for Telephonic Court Appearance

Appellant contends that the juvenile court violated her due process rights when it denied her request to participate in the review hearing telephonically.

We consider this issue in the prior appeal. A parent in a dependency proceeding has a due process right to notice and a hearing. (In re Crystal J. (1993) 12 Cal.App.4th 407, 413; see also Cal. Rules of Court, rule 5.682.) However, in dependency proceedings, a parents right to due process is limited by the need to balance the interest in regaining custody of the minors against the states desire to conclude dependency matters expeditiously and . . . exercise broad control over the proceedings . . . . (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 759-760.) Trial courts are afforded discretion to work within existing guidelines to determine the admissibility of evidence. (See Wagner v. Benson (1980) 101 Cal.App.3d 27, 36.) The reviewing court will not disturb their findings absent an arbitrary, capricious, or patently absurd determination. . . . (In re Raymundo B. (1988) 203 Cal.App.3d 1447, 1456.) (In re Nada R. (2001) 89 Cal.App.4th 1166, 1176, internal quotation marks omitted.)

Here, appellant was living outside the country. Appellants counsel requested that she be allowed to participate telephonically or, alternatively, that if she were to appear personally that the juvenile court provide her with some kind of security and her suggestion was police officers from apparently another state. Counsel for the Department objected to appellants request on the ground that she would not protect the confidentiality of the proceedings, because she had repeatedly violated the protective orders in the case. Vincents counsel joined in the objection. Appellants counsel argued that appellants posting on the Internet were not relevant to the issue. The juvenile court then denied the request on the ground that it was not convinced that any admonishment to not record the proceedings or disseminate them publicly would be honored . . . .

As we concluded in the prior appeal, appellant was not deprived of due process when the juvenile court denied her request to appear telephonically. Juvenile court proceedings are confidential to protect the childs privacy rights. ( 300.2, 827.) Appellant has a lengthy history of violating the juvenile courts orders on confidentiality. She has sent e-mails related to the case and posted information from the social workers reports on Web sites. Appellants counsel acknowledged that she was unable to control appellants violation of the prior court orders not to disseminate information about Vincent to the media and general public. If appellant had participated in the hearing telephonically, it was unknown whether she would have recorded the hearing or allowed unauthorized people to be present. Moreover, the juvenile court would have been unable to observe her demeanor while testifying. (Evid. Code, 780, subd. (a).) Our analysis of the issue remains the same. Accordingly, the juvenile court did not abuse its discretion in denying appellants request.

B. Restrictions on Dissemination of Vincents Notes

Appellant contends that the order prohibiting her from disseminating Vincents note violated her right to enjoy the companionship of her child through written correspondence and her First Amendment right to free expression. She argues that her rights outweigh any need to keep his note confidential.

A parent has a fundamental liberty interest in the care, custody, and management of his or her child. (Santosky v. Kramer (1982) 455 U.S. 745, 753; In re B. G. (1974) 11 Cal.3d 679, 688.) He or she also has a First Amendment right to freedom of speech. (U.S. Const., 1st Amend.) However, we conclude that appellant has failed to demonstrate that her interests are superior to Vincents right of privacy. (Cal. Const., art. I, 1.)

The Legislature has stated that the provisions of the juvenile court law ensuring the confidentiality of proceedings and records are intended to protect the privacy rights of the child. ( 300.2.) Thus, a juvenile case file is confidential, and may not be inspected by the general public. ( 827.) Section 827, subdivision (e) states that a juvenile case file includes a petition filed in any juvenile court proceeding, reports of the probation officer, and all other documents filed in that case or made available to the probation officer in making his or her report, or to the judge, referee, or other hearing officer, and thereafter retained by the probation officer, judge, referee, or other hearing officer. ( 827, subd. (e).) The California Rules of Court, rule 5.552, subdivision (a) states in relevant part that juvenile case file includes: [] (1) All documents filed in a juvenile court case; . . . [] (3) Documents made available to probation officers, social workers of child welfare services programs, and CASA volunteers in preparation of reports to the court.

The juvenile court has the authority to determine the extent to which its files are released and has the inherent right to control the time, place and manner of inspection. [Citations.] [] In exercising its authority, the juvenile court must make the childrens best interests its primary concern. [Citations.] [T]he constitutionally protected public right of access to trials and pretrial proceedings in criminal cases does not extend to juvenile dependency proceedings. [Citation.] (In re Tiffany G. (1994) 29 Cal.App.4th 443, 450.) An appellate court reviews a juvenile court order denying access to juvenile court records under the abuse of discretion standard. (In re Gina S. (2005) 133 Cal.App.4th 1074, 1082.)

Appellant argues that Vincents note was not part of his juvenile case file, and thus not confidential. We disagree.

When appellants counsel indicated that she had not yet seen the note, the juvenile court stated: I would like you to show the note to Ms. Bazar, though Im not going to have them entered into evidence or released at this time. However, the note appears in the clerks transcript on appeal with a file stamp on it. Thus, the note was a document filed in that case or made available to . . . the judge . . . , and thereafter retained by the . . . judge . . .  ( 827, subd. (e).)

Moreover, contrary to appellants claim, Vincents note was a document made available to . . . social workers of child welfare programs . . . in preparation of reports to the court. (Calif. Rules of Court, rule 5.552, subd. (a).) The note was attached to a memorandum that the social worker sent to the juvenile court in which she discussed the laptop that appellant provided for Vincent. Thus, the social worker considered the note in preparing her report to the court. Since the note was part of the juvenile case file, it was confidential.

Appellant next argues that even if the note was part of the juvenile case file, there was nothing in the note that would have compromised Vincents privacy interests or the confidentiality of the juvenile court proceedings. However, section 827 makes no such distinction. This statute provides that a juvenile case file is confidential except in specified circumstances that are not present in the instant case. More importantly, appellant ignores the impact that the publication of Vincents notes or letters to her might have on Vincent. Appellant physically and emotionally abused Vincent. Several years later, he is still attempting to come to terms with that abuse. In the most recent review report, the social worker discussed Vincents therapy as it related to the written communications that he received from appellant and the maternal grandmother. The social worker noted that Vincent had expressed mixed feelings [] regarding the current contact he has with his family through cards and letters. Thus, appellants publication of Vincents notes or letters in her campaign against the people who are caring for him and protecting his rights would not only be confusing to Vincent, but also further undermine his relationship to her and impede any progress he has made in therapy. The order does not prevent appellant from continuing to present her views on Vincents case or the juvenile dependency system in any forum that she chooses. It does, however, prohibit her from using Vincents written communications. Given the potentially devastating impact that publication of any notes or letters might have on Vincent, appellant has failed to show that her interests outweigh those of Vincent. Accordingly, the juvenile court did not abuse its discretion in concluding that disclosure of the note was contrary to Vincents best interests.

Appellant also claims that Vincent waived his right to privacy when he gave the note to the social worker to give to appellant. We have serious reservations as to whether a minor with serious emotional and behavioral difficulties has the capacity to waive his privacy rights. However, even assuming that he or she could do so, here the documents in question are part of the juvenile case file, which the Legislature has designated as confidential.

III. Disposition

The order is affirmed.

_______________________________

Mihara, J.

WE CONCUR:

______________________________

Bamattre-Manoukian, Acting P.J.

______________________________

McAdams, J.

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[1] All further statutory references are to the Welfare and Institutions Code unless stated otherwise.

[2] This court has taken judicial notice of the records in prior appeals (case numbers H029660, H022368, H023110, H030536). The statement of facts is based in part on the record in those cases.