In Re Dylan T.

76 Cal. Rptr. 2d 684, 65 Cal. App. 4th 765
CourtCalifornia Court of Appeal
DecidedJuly 14, 1998
DocketF029859
StatusPublished
Cited by64 cases

This text of 76 Cal. Rptr. 2d 684 (In Re Dylan T.) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Dylan T., 76 Cal. Rptr. 2d 684, 65 Cal. App. 4th 765 (Cal. Ct. App. 1998).

Opinion

76 Cal.Rptr.2d 684 (1998)
65 Cal.App.4th 765

In re DYLAN T., a Person Coming Under the Juvenile Court Law.
KERN COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
v.
JAMIE T., Defendant and Appellant.

No. F029859.

Court of Appeal, Fifth District.

July 14, 1998.

*685 Stephanie A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

B.C. Barmann, Sr., County Counsel, and Tom Clow, Deputy County Counsel, for Plaintiff and Respondent.

Certified for Partial Publication.[*]

OPINION

VARTABEDIAN, Associate Justice.

Dylan T. was declared to be a dependent child of the court. At the dispositional hearing, the trial court ordered that there be no visits between Dylan and his mother, Jamie, while Jamie was incarcerated. Dylan's tender age alone, reasoned the trial court, justified the order of no visitation with the mother while she was incarcerated. In this appeal, we are called upon to determine whether a finding of detriment to a minor visiting an incarcerated parent can be based on age without any further showing. We determine it cannot.

FACTS AND PROCEEDINGS

Jamie T. is the mother of Dylan T. (date of birth: Sept. 19, 1996). On September 23, 1997, a Welfare and Institutions Code section 300[1] dependency petition was filed seeking to declare Dylan a dependent child of the court after Jamie was arrested and jailed for possession of a controlled substance. The trial court found true the allegations that Jamie had failed to protect Dylan because of her substance abuse (§ 300, subd. (b)) and that there was no provision for Dylan's support due to Jamie's incarceration (§ 300, subd. (g)).[2] The court ordered that visits are not permitted if Jamie is incarcerated.

A report was prepared for the dispositional hearing. The report stated that in November of 1997, Jamie was convicted of *686 possession of a controlled substance and was sentenced to one year in jail. If approved by the probation department, Jamie could be released from jail to an in-patient residential treatment program. Regarding visitation the social service worker noted that Jamie was incarcerated at the (Kern County jail at Lerdo (the Lerdo facility) and stated, "[t]he undersigned believes that due to the minor's young age that visits while the mother is incarcerated would be detrimental to the minor." Visits were recommended after Jamie's release; the worker also recommended that family reunification services be provided to Jamie.

The dispositional hearing was held on December 15, 1997. Counsel for Jamie made the following statement at the hearing:

"We are prepared to submit it upon the report and the recommendation with one exception and that is with respect to visits while she's in custody.
"My client is actually serving a commitment at the Lerdo Facility and she's on the farm. Visitation under those circumstances is open visitation in an open area of the Lerdo Facility and in light of the fact that this matter is under the six month rule, I think that it would be incumbent, actually, it's absolutely necessary that my client have regular contact with the minor if reunification is at all possible.
"Her current commitment is at most until May of 1998. She is eligible for residential treatment program and that may be affected [sic] sometime in January.
"I would ask that at the very least, while she is in custody at the Lerdo Facility, that she have one visit a month."

County counsel reiterated the conclusion of the social service worker that visits would not be in the minor's best interests due to the minor's age.

The trial court adjudged Dylan a dependent child of the court and ordered the reunification plan into effect. The court made the following order regarding visitation:

"I'm going to order as follows, no visits are permitted while the parent is incarcerated and the Court finds based upon the minor's age, visits while incarcerated are not in the minor's best interest. However, if the mother is transferred to an inpatient drug treatment rehabilitation program, visits are to occur one time per month, supervised by the Department or its designee, not to exceed one hour."

DISCUSSION

I.

Jamie claims the trial court abused its discretion when it refused all jail visitation with her solely because of Dylan's age. Jamie argues that visits with her son were critical to the issue of reunification, it was not shown that visits with Dylan while she was incarcerated would be detrimental to him, and the trial court failed to make an informed decision on the question of visitation.

Respondent initially argues that this issue is moot because Jamie has been released from the Lerdo Facility and is in a residential treatment program; therefore she is no longer subject to the restriction that visitation shall not occur while she is incarcerated. Respondent has filed with this court an application to produce additional evidence to show that Jamie is no longer incarcerated.

The question of mootness must be decided on a case-by-case basis. (In re Hirenia C. (1993) 18 Cal.App.4th 504, 518, 22 Cal.Rptr.2d 443.) An issue is not moot if the purported error infects the outcome of subsequent proceedings. (In re Joshua C. (1994) 24 Cal.App.4th 1544, 1548, 30 Cal.Rptr.2d 10.)

"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 mother and child." (In re Monica C. (1995) 31 Cal. App.4th 296, 307, 36 Cal.Rptr.2d 910.) We accept, for the sake of argument, that Jamie was released from the Lerdo Facility in February, placed in a residential treatment program, and allowed some visits with Dylan since her release. Her release does not alleviate all damage from the purported error. Jamie has been denied visitation, because of Dylan's young age, since she was incarcerated in September of 1997. Her relationship *687 with Dylan was subject to erosion during this time. Also, although she was released to a residential in-patient program, she remains subject to incarceration. If reincarcerated, she would again suffer the consequence of no visitation. Finally, because Dylan was under the age of three when he was removed from Jamie's custody, his case is on the dependency "fast track." Recently enacted sections 361.5, subdivision (a)(2) and 366.21, subdivision (e) provide the court with the option to terminate reunification efforts after six months.

"The stated purpose of the new six-month provisions is to give juvenile courts greater flexibility in meeting the needs of young children, `in cases with a poor prognosis for family reunification, (e.g., chronic substance abuse, multiple previous removals, abandonment, and chronic history of mental illness).'(Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1524 (1995-1996 Reg. Sess.) as amended May 20, 1996, p. 4.) According to the sponsor, the California Department of Social Services, Very young children ... require a more timely resolution of a permanent plan because of their vulnerable stage of development ... [G]iven the unique developmental needs of infants and toddlers, moving to permanency more quickly is critical.' (Ibid.)" (Daria D. v. Superior Court (1998) 61 Cal.App.4th 606, 611-612, 71 Cal.Rptr.2d 668.)

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Bluebook (online)
76 Cal. Rptr. 2d 684, 65 Cal. App. 4th 765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dylan-t-calctapp-1998.