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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 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. 

_________________________
2

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 drugrelated 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. 
3

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.”
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 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, 
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 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 
6

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. 
7

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.