In re Aiden L. CA2/3 ( 2013 )

Filed 8/29/13 In re Aiden L. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION THREE
In re AIDEN L., a Person Coming Under B246475
the Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. CK94374)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
HARLEY L.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
Marilyn Mordetsky, Juvenile Court Referee. Reversed and remanded.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance by Plaintiff and Respondent.
_________________________
INTRODUCTION
Father appeals from the order of the juvenile court declaring his son Aiden
(2.5 years old) a dependent of the court. (Welf. & Inst. Code, § 300.)1 Father contends
the court abused its discretion in denying him all contact with the child based solely on
the child’s age. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Aiden was detained from his mother, Nicole C.,2 after she was arrested on drug-
related charges and left Aiden in the care of her boyfriend’s sister. The child was filthy.
Father had been involved in another dependency and was denied visitation with
another child for failure to comply with his case plan. Father had also multiple
convictions for possession of controlled substance and one conviction for infliction of
corporal injury on a spouse. The social worker located father in jail in Los Angeles on a
conviction of possession of controlled substance where he was serving a 16-month
sentence.
At the detention hearing, the juvenile court found father to be Aiden’s presumed
father. The court ordered family reunification services for father.
Father appeared at the following hearing and informed the court that his release
date was February 23, 2013. The court ordered the Department of Children and Family
Services (the Department) to provide father with reunification services once he was no
longer incarcerated. Father’s attorney provided the court with relative information sheets
and explained that the current caretaker would be willing to monitor father’s visits.
Counsel asked the court to order the Department to evaluate the caretaker and other
relatives to serve as visitation monitors and to facilitate telephone calls while father was
in custody. The court ordered the Department to evaluate the monitors for father “once
he’s released from incarceration.” The court also assured father he could write to Aiden.
1
All further statutory references are to the Welfare and Institutions Code unless
otherwise noted.
2
Mother is not a party to this appeal.
2
The social worker was not able to interview father and so the record contains very
little information about him. In early November 2012 the social worker waited an hour to
interview father at the Men’s Central Jail only to be told he was “out to work” and his
return time was unknown. The jurisdiction report contained a statement that in 2002
father sexually abused an unrelated child, and from 2000 to 2003 father sexually abused
another unrelated child. The Department had no substantiating documentation about this
allegation and neither mother nor the maternal aunt had any information about it.
However, the Department included in the petition an allegation under section 300,
subdivision (d)3 concerning father’s sexual abuse of two unrelated children. The
Department recommended father be given reunification services.
At the November 2012 pretrial conference, father’s attorney expressed concern
that father had had no visits with Aiden. Counsel requested the court grant father “some
phone contact face to face while [father was] local . . . at Men’s Central [Jail] -- and so
far there’s been nothing.” The juvenile court replied, “That’s probably due to the age of
the child. That’s why the court’s not going to order the child be taken to incarceration
given the age.” (Italics added.) Counsel asked that the Department immediately
facilitate frequent contact between father and the child’s caregiver so that father could
speak to the child by telephone and inquire after the child’s well being. The court
declined to order contact between father and the caregiver believing that Aiden was
“preverbal.” Counsel explained that the child was not preverbal as he was almost two
years old, and father wanted to speak to the child by telephone. The court denied the
request for telephone contact between father and Aiden.
The parties agreed to submit to an amended petition alleging mother’s drug
possession and that father “has a criminal history, is currently incarcerated for drug
3
Section 300, subdivision (d) reads: “The child has been sexually abused, or there
is a substantial risk that the child will be sexually abused, as defined in Section 11165.1
of the Penal Code, by his or her parent or guardian or a member of his or her household,
or the parent or guardian has failed to adequately protect the child from sexual abuse
when the parent or guardian knew or reasonably should have known that the child was in
danger of sexual abuse.”
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possession for sales, and is currently unable to take custody of his child.” The court
dismissed the counts alleging father’s prior sexual abuse history. The negotiated case
plan included reunification services for an incarcerated parent and awarded father three
hours per week of monitored visitation. Although the minute order from the disposition
hearing ordered the Department to provide father with monitored visits a minimum of
three hours a week limited only to the availability of the monitor, the reporter’s transcript
indicates that the court denied visitation. The court stated on the record: “given the age
of the child, the court’s not going to order face-to-face contact. [¶] Department to
ensure through the caretaker that father receive pictures, and any written letters from the
father are to be given to the child.” (Italics added.) Father appealed from the disposition
order denying his request for face-to-face visits or phone contact with the child.
DISCUSSION
Father argues that the order denying visitation was error because the juvenile court
made no detriment finding and no finding that Aiden’s safety would be jeopardized by
visits and telephone calls with father. We agree.
Section 362.1, the general visitation statute directs in relevant part that “to
maintain ties between the parent or guardian and any siblings and the child, and to
provide information relevant to deciding if, and when, to return a child to the custody of
his or her parent or guardian, or to encourage or suspend sibling interaction, any order
placing a child in foster care, and ordering reunification services, shall provide as
follows: [¶] (1)(A) . . . for visitation between the parent or guardian and the child.
Visitation shall be as frequent as possible, consistent with the well-being of the
child. [¶] (B) No visitation order shall jeopardize the safety of the child.” (§ 362.1, subd.
(a), italics added.)
With specific reference to incarcerated parents, section 361.5 provides “If the
parent . . . is incarcerated . . . the court shall order reasonable services unless the court
determines, by clear and convincing evidence, those services would be detrimental to the
child. In determining detriment, the court shall consider the age of the child, the degree
of parent-child bonding, the length of the sentence, the length and nature of the treatment,
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the nature of the crime or illness, the degree of detriment to the child if services are not
offered . . . the likelihood of the parent’s discharge from incarceration . . . within the
reunification time limitations described in subdivision (a), and any other appropriate
factors. . . . Services may include, but shall not be limited to, all of the
following: [¶] (A) Maintaining contact between the parent and child through collect
telephone calls. [¶] (B) Transportation services, where appropriate. [¶] (C) Visitation
services, where appropriate.” (§ 361.5, subd. (e)(1), italics added.) It is manifest from
the use of the word “shall” in section 361.5, subdivision (e)(1) combined with the fact the
list of factors is given in the conjunctive, that the juvenile court must base its order
concerning visitation for incarcerated parents on numerous factors, only one of which is
the age of the child. (In re Dylan T. (1998) 65 Cal.App.4th 765, 767, 773-774.)
Dylan T. held over a decade ago that a juvenile court may not find detriment to a
child visiting an incarcerated parent based on age without any further showing. (In re
Dylan T., supra, 65 Cal.App.4th at p. 767.) The juvenile court there had ordered a
reunification plan, but denied visits while the parent was incarcerated because “ ‘based
upon the minor’s age, visits while incarcerated are not in the minor’s best interest.’ ”
(Id. at p. 768.) The appellate court reversed this order. Based on sections 362.1 and
361.5, subdivision (e), and case law, the Dylan T. court concluded that “visitation
between an incarcerated parent and a minor cannot be arbitrarily determined based on
factors which do not show by clear and convincing evidence that visitation would be
detrimental to the minor.” (In re Dylan T., supra, at pp. 770-773.) “[T]he particular
factor of the minor’s age, without some supporting evidence demonstrating how the age
of the minor resulted in detriment when visiting the incarcerated parent, cannot be
utilized by itself to deny visitation. The court must consider each listed factor and any
other additional factors when it determines detriment. Any one factor or combination of
factors might result in a finding of detriment, but it must be shown by clear and
convincing evidence how the factor or factors result in a detriment.” (Id. at pp. 773-774.)
Here, the record contains nothing to indicate that the court considered any of the
factors of detriment, other than Aiden’s age, and made no determination--let alone by
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clear and convincing evidence--that visiting father in jail would be detrimental to Aiden
solely because of the child’ age. Clearly, that is insufficient. (In re Dylan T., supra, 65
Cal.App.4th at pp. 773-774.) The Department did not argue to the juvenile court or on
appeal that visitation should be denied. Instead, the Department agreed to a case plan
under which father would have three hours of visitation per week.4 Thus, the record
contains nothing from which we could infer detriment.
Of particular concern is the fact that Aiden was under the age of three when he
was removed from his mother’s custody and so this case is on “the dependency ‘fast
track,’ ” meaning that the juvenile court has the option of terminating reunification efforts
after only six months. (In re Dylan T., supra, 65 Cal.App.4th at p. 769, citing former
section 361.5, subd. (a)(1)(B).) Without opportunity for some sort of visitation, it is
“virtually impossible for [father] to achieve reunification.” (In re C.C. (2009)
172 Cal.App.4th 1481, 1491-1492.) “ ‘The absence of visitation will not only prejudice a
parent’s interests at a section 366.26 hearing but may “virtually assure[] the erosion (and
termination) of any meaningful relationship” between [parent] and child.’ [Citation.]”
(In re Dylan T., supra, at p. 769.) “Because reunification efforts could be terminated
after six months, the lack of all opportunity for visitation during a significant portion of
this time is an error which could infect the outcome of [the dependency]. (Id. at p. 770.)
“ ‘Every parent and child, with few exceptions [citations] is entitled to a
meaningful judicial evaluation of the . . . visitation question every time an order
regarding reunification services is made.’ [Citation.]” (In re Dylan T., supra,
65 Cal.App.4th at p. 775.) Other than the juvenile court’s two statements that it would
not order visitation for father given Aiden’s age, the record contains no evidence the
4
Although the juvenile court’s minute order awarded father three hours of
visitation, the minute order directly conflicts with the reporter’s transcript in which the
court denied visitation. We conclude the court’s oral ruling expresses the court’s actual
intent (People v. Harrison (2005) 35 Cal.4th 208, 226 [generally conflicts in record are
harmonized; if harmony not possible, result depends on circumstances of case]) because
the court twice denied father’s request for visitation and the written minute order reflects
the parties’ negotiated disposition, not the ruling of the court.
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court evaluated whether visitation between father and Aiden while father is incarcerated
would be detrimental to Aiden. The juvenile court’s visitation order, unsupported by
“substantial evidence of detriment, was error and deprived [father] of a meaningful
evaluation of the visitation question.” (Ibid.)
DISPOSITION
The order is reversed and the matter is remanded to the juvenile court to
reconsider its orders concerning visitation while father is incarcerated. The previously
ordered nonvisitation during father’s incarceration shall not count against him in the
court’s evaluation of reunification and making of further orders.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
CROSKEY, Acting P. J.
KITCHING, J.
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