Dependency Case Law

In re Dylan T. (1998) 65 Cal.App.4th 765 [76 Cal.Rptr.2d 684]. Court of Appeal, Fifth District.

The juvenile court denied visitation to a mother while she was incarcerated. The mother had been incarcerated after she was convicted of possession of a controlled substance when the child was one year of age. The juvenile court had found that visitation while the mother was incarcerated was inappropriate because the child's tender age. The mother was incarcerated at Lerdo Facility, a farm with an open visitation area.

The mother appealed, contending that the juvenile court abused its discretion when it refused all jail visitation based solely on the child's age. The mother further contended that visitation was crucial to reunification, that visits while she was incarcerated were not shown to be detrimental, and that the juvenile court failed to make an informed decision on the question of visitation. The Court of Appeal agreed, finding that a juvenile court cannot determine that visitation with an incarcerated is detrimental to a child based solely on the child's age without further showing.

As a threshold issue the court found that the issue was not moot even though the mother was in a residential treatment program and no longer in jail. Specifically, it found that her release from jail did not remedy the alleged damage because her relationship with the child had eroded and because she was still subject to incarceration. Furthermore, the court noted that since the child was under three years old, the case was on a dependency fast track and reunification could be terminated after six months.

On the visitation issue the court began by reiterating that visitation must be provided to an incarcerated parent absent certain circumstances. Welfare and Institutions Code section 361.5 sets forth the requirements for family reunification services for incarcerated parents. Specifically, it requires a parent to be provided reunification services unless the court determines by clear and convincing evidence that providing the parent with reunification services would be detrimental to the child. The court reviewed case law dealing with incarcerated parents and noted that "[w]hat can be gleaned from these cases is 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." The court noted that although the child's age is a factor in considering whether visitation should be granted, it found that age alone does not constitute a reason to deny visitation. The court found that had the Legislature wanted to restrict visitation between an incarcerated parent and a young child, it would have done so explicitly. Here, age is just one factor for the court to consider when determining whether to grant visitation.