In re Vincent B.
Filed 10/20/06 In re Vincent B. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re VINCENT B., A Person Coming Under
the Juvenile Court Law.
SANTA CLARA COUNTY DEPARTMENT OF
FAMILY AND CHILDREN’S SERVICES, H029660
Plaintiff and Respondent, (Santa Clara County
Super. Ct. No. JD11110)
v.
DIANE B.,
Defendant and Appellant.
________________________________________/
Diane B. appeals from an order denying her a hearing on her Welfare and Institutions Code[1] section 388 petition for modification. We find no error and affirm.
I. Statement of Facts[2]
In July 1999, six-year-old Vincent was removed from appellant’s care. The Santa Clara County Department of Family and Children’s Services (Department) filed a petition pursuant to section 300, subdivision (b). The petition alleged that Vincent had been found alone and unsupervised, had been physically abused by appellant and her boyfriend, and was afraid of appellant. After the juvenile court sustained the petition, it removed Vincent from appellant’s care, placed him at Eastfield Ming Quong, and ordered family reunification services.
In July 2000, appellant abducted Vincent from his placement and took him to Canada. Eventually, appellant was apprehended by Canadian authorities. At that time, Vincent required psychiatric hospitalization, because he engaged in self-destructive behavior, such as choking and hitting himself. In September 2000, Vincent was brought back to the United States while appellant remained in Canada and sought political asylum.
In February 2001, the 12-month review hearing was held. Appellant did not attend. The juvenile court terminated reunification services, ordered no contact between appellant and Vincent, and adopted the permanent plan of long term foster care for Vincent. In May 2001, the juvenile court denied appellant’s section 388 petition in which she sought Vincent’s return to her in Canada.
In February 2002, the social worker prepared a report for a post-permanency planning hearing. He reported that Vincent continued to display very nervous and anxious behaviors, was argumentative, non-compliant, physically aggressive towards others and property, fearful, and hyperactive. Vincent’s case manager stated that Vincent’s anxiety was related to his kidnapping and being put in the trunk of appellant’s car, though his former case manager stated that Vincent could be “‘matter of fact’“ regarding the kidnapping. The social worker also reported that only three of the 17 letters that appellant had sent to Vincent were considered appropriate. None of Vincent’s maternal grandmother’s letters were forwarded to Vincent due to their inappropriate content.
In June 2002, Vincent was transferred to a higher level placement, and he initially had a difficult time making the transition. Since he continued to exhibit high levels of anxiety, he was receiving individual and group therapy and medications. His psychiatrist diagnosed him with post traumatic stress disorder , oppositional defiant disorder, generalized anxiety disorder, attention deficit hyperactivity disorder, and episodic enuresis.
According to the social worker, appellant was writing to Vincent four to five times a month, and letters that were deemed appropriate were read to Vincent. The social worker attached some of the letters that were considered inappropriate. 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 appellant’s lawyer that he wanted to live with appellant.
In late January or early February 2003, appellant was returned to Santa Clara County to face a charge of child abduction. In April 2003, another post-permanency planning review hearing was held. Vincent’s child advocate reported that Vincent expressed fear that she would leave him, stating that “he had been left alone ‘for a long time’ when he lived with his mother.” The social worker reported that Vincent required one-on-one supervision due to his tendency to run away. Vincent continued to have personal boundary issues, poor social skills, and difficulty trusting others. According to Vincent’s case manager, “Vincent’s play therapy primarily reflects themes of abandonment and fear (that he will be kidnapped by his mother).” Vincent also expressed concern about his own sexualized behaviors. When the issue of family came up in group therapy, Vincent indicated that he would like to “‘belong to a family,’” “‘but not with [his] mother because she will put [him] in the trunk of a car.’”
On June 27, 2003, appellant filed a section 388 petition for modification. She alleged that she had pleaded to a misdemeanor charge, received credit for time served and was placed on probation, she and Vincent had a close bond, and no other relative placement was available. The juvenile court set the matter for a hearing.
On July 24, 2003, Vincent’s attorney requested a restraining order against appellant after Vincent’s caretakers received a suspicious phone call indicating that appellant was attempting to locate him. The juvenile court issued a temporary restraining order and set the matter to be heard on the same date as the section 388 petition. On August 28, 2003, appellant did not appear at the hearing, her attorney withdrew her petition for modification, and the juvenile court granted a permanent restraining order.
The next review hearing was scheduled for November 2003. The social worker’s report indicated that appellant’s whereabouts were unknown, and there were three warrants for her arrest. Appellant had not written to Vincent in “recent months.” Vincent did not refer to appellant in positive terms. He continued to suffer from anxiety and to display aggressive, sexualized, and oppositional behaviors, but he was making progress. Vincent continued to participate in individual and group therapy. Appellant did not attend the hearing. The juvenile court continued the previous plan for Vincent, and ordered that a photo of Vincent be given to appellant.
On May 25, 2004, the next review hearing was held. Vincent’s child advocate reported that he wanted to “‘live in a house with foster parents” when he graduated from his group home. He was worried that appellant was sick because he had not received any mail from her. The social worker reported that appellant’s whereabouts were unknown, and appellant had not communicated with Vincent in the past year. The social worker had also reviewed various web sites in which appellant continued to express her innocence, sought assistance in pursuing legal action, and claimed that Vincent was dead. Vincent remained in a residential treatment facility to address his significant emotional and behavioral issues. Vincent did not request contact with appellant, and spoke only “‘fearfully and negatively’” about her.
On April 8, 2005, appellant filed a section 338 petition for modification. She alleged that she had a “stable life demonstrated by multiple responsible jobs including a job with a state legislature,” was fiscally responsible, had no history of mental health hospitalizations, was not in “any romantic or inappropriate relationships,” had applied for clemency with the governor, was in “excellent physical health,” and had “[c]ommunity support to enhance parenting.” She further alleged that modification was in Vincent’s best interest, because he was “not in any kind of ‘family’ setting. [She] would be able to privately provide for any physical or mental needs he might have and give him a loving stable home.”
On May 5, 2005, the social worker filed a memorandum report in response to the petition for modification. Appellant told the social worker that she wanted Vincent to be in court, and that she did not want him on psychotropic medications. According to the social worker, it was not in Vincent’s best interest for appellant to be considered for reunification services or for him to be returned to appellant’s care. This recommendation was based on the family history, the kidnapping, Vincent’s current emotional and behavioral needs, Vincent’s fear of appellant, and the lack of changes in appellant’s circumstances.
On August 23, 2005, appellant sent the social worker a letter 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.” Appellant informed the social worker that she would be attending all hearings by telephone.
On October 18, 2005, the social worker filed an addendum report that summarized information provided by Vincent’s therapist and the treatment team. The quarterly report, dated August 12, 2004, stated that Vincent spoke only “‘fearfully and negatively’“ about appellant and had not asked for her letters or to write to her. Another report, dated May 3, 2005, noted that Vincent “‘has stated repeatedly to staff that he does not wish to live with his mother, frequently saying ‘she scares me.’” Vincent’s therapist also reviewed nearly three years of therapy notes with Vincent, and included information relating to his relationship with appellant. Using a doll designated as appellant, Vincent confronted his mother on several occasions about her mistreatment of him. He also expressed the desire for a mother who would not hurt him.
After several continuances, the juvenile court held a hearing to determine whether there would be an evidentiary hearing on appellant’s petition for modification. Respondent’s counsel objected to appellant appearing telephonically. She argued that appellant had violated court orders on a number of occasions, including orders relating to confidentiality, and that there was no way to ensure that appellant would respect the appropriate safeguards if allowed to appear telephonically. Appellant then 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 Vincent’s attorney of lying and violating the law. Appellant also wanted to know if Vincent was alive, and claimed that she had a right to have contact with her son. The juvenile court then terminated the call to preserve confidentiality. Following argument, the juvenile court took the matter under submission.
The juvenile court issued an order in which it found that there were changed circumstances, but that these circumstances would not serve the best interests of Vincent. The order stated in relevant part: “Throughout the case and in her Petition for Modification [appellant] has demonstrated no understanding of her son’s serious emotional problems. Moreover, from the evidence revealed in the discovery documents it is clear that the minor still fears his mother. He has stated to staff members at his placement about his mother that ‘she scares me.’ He also has had long periods of time when he does not mention her. Instead he seems to be interested in living with a ‘real family’ and improv[ing] his relationships with peers. The current court orders permit the mother to send letters to the minor as long as they are first sent to the social worker. The social worker is then able to discuss the content with the minor’s therapist to see whether the contents are appropriate for the minor. This is a means for the court to measure any changes in the mother’s attitude towards her son’s well-being. Thus far, the court concludes that the mother’s position is that nothing was ever wrong with her treatment of the minor both before and after the original removal from her care, nothing is wrong with him now and nothing is wrong with her capacity to parent. . . . Additionally, the mother’s attitude indicates to the court that any contact with the minor would actually be harmful to him.” Thus, the juvenile court concluded that appellant had failed to state a claim which would have required a hearing on the modification petition, and denied the petition.
II. Discussion
Appellant contends that the juvenile court erred in failing to hold a hearing on her section 388 petition.
Section 388 requires that “[t]he petition shall be verified and, . . . shall state the petitioner’s relationship to or interest in the child and shall set forth in concise language any change of circumstance or new evidence which are alleged to require the change of order . . . . If it appears that the best interests of the child may be promoted by the proposed change or order . . . the court shall order that a hearing be held . . . . “ “A petition for modification must be liberally construed in favor of its sufficiency.” (Cal. Rules of Court, rule 1432(a).) Thus, when the petitioner alleges “any evidence” that a hearing would promote the best interests of the child, the juvenile court must order a hearing. (In re Heather P. (1989) 209 Cal.App.3d 886, 891.) However, “[i]n determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case.” (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)
Appellant argues that whether she made a prima facie showing that her proposed change of order would be in Vincent’s best interests is a question of law subject to de novo review by this court. She relies on cases in which appellate courts have conducted an independent review even though this standard was not expressly identified. (See In re Daijah T. (2000) 83 Cal.App.4th 666; In re Elizabeth M. (1997) 52 Cal.App.4th 318; In re Hashem H. (1996) 45 Cal.App.4th 1791.) Respondent points out, however, that appellate courts have applied the abuse of discretion standard of review to summary denial of a hearing on a section 388 petition. (In re Aaron R. (2005) 130 Cal.App.4th 697, 704; In re Angel B. (2002) 97 Cal.App.4th 454, 460; In re Anthony W. (2001) 87 Cal.App.4th 246, 250; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416-1417.)
After carefully reviewing the factual and procedural history of this case, we conclude that the juvenile court properly denied appellant’s request for a hearing under either standard of review. Here appellant alleged facts indicating that the circumstances of her life were more stable. However, appellant’s petition failed to allege facts showing that the proposed changes would be in Vincent’s best interests. Vincent’s feelings about his mother were ambivalent at best. In 2004, he was worried that appellant was sick, because he had not heard from her. At that time, however, he also spoke only “‘fearfully and negatively’” about her. Vincent was also anxious about his future. A May 2005 report noted that Vincent repeatedly stated that he did not want to live with his mother. Vincent has also confronted his mother on several occasions in play therapy about her mistreatment of him. Appellant’s petition fails to allege any evidence that reunification services or the return of Vincent to her custody might promote his best interests. Appellant alleges that Vincent is not living in a family setting and she could provide for his physical and mental needs. However, her petition also establishes that appellant has not yet acknowledged either that she caused physical and emotional harm to her son or that he is an emotionally fragile child. She has also failed to allege any facts indicating that Vincent would be safe in her care. Her statements at the hearing emphasized this failure when she blamed the juvenile court and respondent’s attorney for her separation from Vincent. We also note that appellant has not seen Vincent since September 2000. Thus, it is significant that she failed to allege any facts indicating that her parenting skills or her relationship with Vincent had improved. Accordingly, the juvenile court did not err in summarily denying her petition for modification.
Appellant next contends that the juvenile court committed a procedural error by checking a box on the section 388 petition indicating that an evidentiary hearing would be held on the petition, and then later inquiring at the hearing whether an evidentiary hearing should be held. However, the form provided limited options for the juvenile court. The juvenile court did hold a hearing to allow appellant to make an offer of proof as to the evidence that would support her claims. We find no error.
Appellant also argues that the juvenile court erred in its recitation of the facts by portraying her in an unfavorable light. She points to the court’s statement that the hearing was continued several times at her request. Assuming this statement was erroneous, we fail to understand how it was prejudicial. Appellant also focuses on the juvenile court’s statements that she was brought back to Santa Clara County in custody to face the abduction charges and that she failed to appear for a hearing on a prior petition for modification. She claims that she turned herself in to Canadian authorities and was then brought back to Santa Clara County. She also points out that her counsel withdrew her modification petition though she did not attend that hearing. In our view, the juvenile court’s statements were not erroneous. Thus, there is no merit to appellant’s argument that the juvenile court was biased against her.
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.
[2] This court has taken judicial notice of the records in prior appeals (case numbers H022368, H023110). The statement of facts is based in part on the records in those cases.
