Filed 8/29/13 In re Aiden L. CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 the Juvenile Court Law. B246475

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,

v.
HARLEY L.,
Defendant and Appellant. (Los Angeles County Super. Ct. No. CK94374)

APPEAL from an order of the Supe rior 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.

_____________ ____________2 INTRODUCTION Father appeals from the order of the j uvenile 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 discreti on in denying him all contact with the child based solely on the child’s age. We reverse.
FACTUAL AND PROCEDUR AL BACKGROUND Aiden was detained from his mother, Nicole C., 2 after she was arrested on drugrelated charges and left Aiden in the care of he r boyfriend’s sister. The child was filthy.
Father had been involved in another de pendency and was denied visitation with
another child for failure to comply with his case plan. Father had also multiple convictions for possession of controlled subs tance and one conviction for infliction of corporal injury on a spouse. Th e social worker located father in jail in Los Angeles on a conviction of possession of controlled subs tance where he was serving a 16-month

sentence. At the detention hearing, the juvenile c ourt 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 orde red the Department of Children and Family Services (the Department) to provide father with reunification services once he was no longer incarcerated. Father’s a ttorney provided the court with relative information sheets and explained that the current caretaker woul d be willing to monitor father’s visits. Counsel asked the court to order the Depart ment to evaluate the caretaker and other
relatives to serve as visitation monitors and to facilitate telephone calls while father was in custody. The court ordere d 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.3 The social worker was not able to interview father and so the record contains very little information about him. In early Novemb er 2012 the social work er waited an hour to
interview father at the Men’s Central Jail onl y to be told he was “out to work” and his
return time was unknown. Th e 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 ha d no substantiating documentation about this allegation and neither mother nor the matern al 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 conferen ce, 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 Me n’s Central [Ja il] -- and so far there’s been nothing.” Th e 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 aske d that the Department immediately facilitate frequent contact between father and the child’s caregiver so that father could speak to the child by telepho ne and inquire after the child’s well being. The court
declined to order contact be tween father and the caregiv er believing that Aiden was “preverbal.” Counsel explained that the ch ild was not preverbal as he was almost two years old, and father wanted to speak to th e 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 hi story, is currently incarcerated for drug

3 Section 300, subdivision (d) reads: “T he child has been sexually abused, or there is a substantial risk that th e child will be sexually abused, as defined in Section 11165.1 of the Penal Code, by his or her parent or gua rdian or a member of his or her household, or the parent or guardian has failed to ad equately protect the child from sexual abuse when the parent or guardian knew or reasonab ly should have known that the child was in danger of sexual abuse.”4 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 in carcerated parent and awarded father three hours per week of monitored visitation. Although the minute order from the disposition hearing ordered the Department to provide fa ther 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 goin g to order face-to-face contact . [¶] Department to ensure through the caretaker th at father receive pictures, and any written letters from the father are to be given to the child.” (Italics added.) Fath er appealed from the disposition order denying his request for face-to-face vi sits or phone contact with the child.
DISCUSSION Father argues that the order denying vis itation 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 guard ian and any siblings and the child, and to provide information relevant to deciding if, a nd when, to return a ch ild to the custody of his or her parent or guardian, or to encour age 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 freque nt 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 sent ence, the length and nature of the treatment,5 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 incarcera tion . . . within the
reunification time limitations de scribed in subdivision (a), and any other appropriate
factors. . . . Services may include, but shall not be limited to, all of the following: [¶] (A) Maintaining contact betw een the parent and child through collect telephone calls. [¶] (B) Transportation servic es, 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, subdiv ision (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 parent s 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 juven ile 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 vi sits while the parent was in carcerated 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 co nvincing 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 visita tion. The court must consider each listed factor and any
other additional factors when it determines detr iment. Any one factor or combination of factors might result in a finding of detrim ent, but it must be shown by clear and convincing evidence ho w the factor or factors result in a detriment.” ( Id . at pp. 773-774.) Here, the record contains nothing to indi cate that the court considered any of the factors of detriment, other than Aiden’s ag e, and made no determ ination--let alone by6 clear and convincing evidence--that visiting fath er in jail would be detrimental to Aiden solely because of the ch ild’ 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. In stead, 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 th e 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 opport unity 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 secti on 366.26 hearing but may “virtua lly assure[] the erosion (and termination) of any meaningful relationship” between [parent] and child.’ [Citation.]” ( In re Dylan T.
, supra , at p. 769.) “Because reunifica tion efforts could be terminated after six months, the lack of all opportunity for visitation during a significant portion of
this time is an error whic h 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 j uvenile 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 co urt’s oral ruling expresses the court’s actual intent ( People v. Harrison (2005) 35 Cal.4th 208, 226 [generally conf licts in record are harmonized; if harmony not possible, result depe nds 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.7 court evaluated whether visitatio n between father and Aiden while father is incarcerated would be detrimental to Aiden. The juven ile court’s visitation order, unsupported by
“substantial evidence of detrim ent, 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 concerni ng visitation while father is incarcerated. The previously
ordered nonvisitation dur ing 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.