Filed 10/31/23 In re W.S. CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re W.S. et al., Persons Coming 

Under the Juvenile Court Law.

B327089

(Los Angeles County

Super. Ct. Nos. 19CCJP05396H-J)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

B.S.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of 

Los Angeles County. Charles Q. Clay, Judge. Conditionally 

affirmed and remanded with directions.

Christopher R. Booth, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Dawyn R. Harrison, County Counsel, Kim Nemoy, 

Assistant County Counsel, and Peter Ferrera, Principal Deputy 

County Counsel, for Plaintiff and Respondent.

_________________________
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INTRODUCTION

B.S. (Father) appeals from the juvenile court’s dispositional

order, adopting the Department of Children and Family Services’ 

(DCFS) recommended case plan, which required Father to 

participate in reunification services. Father argues the juvenile 

court abused its discretion by adopting DCFS’s case plan without 

determining whether the recommended reunification services 

were available to Father at Men’s Central Jail where Father was 

incarcerated at the time of disposition.

While we agree with Father that the juvenile court was 

required to consider Father’s incarceration in adopting an 

appropriate case plan, the record is ambiguous as to when Father 

was incarcerated and whether he remained incarcerated after the 

dispositional hearing. Thus, it is not possible to ascertain 

whether the case plan was reasonable under the circumstances. 

As such, we conditionally affirm the dispositional order, and 

remand the matter with instructions to the juvenile court to 

reconsider Father’s case plan based on Father’s incarceration 

status. If Father remains incarcerated, the juvenile court shall 

vacate its existing dispositional order and adopt a revised case 

plan that is tailored to Father’s circumstances. If, however, 

Father is no longer incarcerated and the availability of those 

reunification services has since become moot, the current 

dispositional order and case plan shall remain in effect. 

FACTUAL AND PROCEDURAL BACKGROUND

The family consists of Father, S.S. (Mother), eight-year-old 

W.S., six-year-old N.S., and four-year-old K.S. The children also 

have two siblings who are not subject to this appeal.

The instant case was initiated on November 4, 2022, after 

the Los Angeles County Sheriff’s Department (LASD) executed a 
3

search warrant at Father’s home two days earlier based on 

information that Father was selling narcotics and illegally 

manufacturing firearms. LASD found Mother, N.S., and K.S. 

present in the home, which was in an unsanitary and unsafe 

condition. During its search of the home, LASD recovered a 

pound of methamphetamine and a firearm, which were in plain 

view and easily accessible to the children. LASD contacted 

DCFS.

A DCFS social worker assessed the home and found the 

conditions deplorable, noting the entire home smelled of feces, 

was overwhelmed with flies, had no working electricity, and had 

numerous other dangerous conditions making it unsafe for the 

children. The social worker interviewed the children, who 

described instances of domestic violence between the parents and 

how Father made guns at home. 

On November 4, 2022, DCFS filed a Welfare and 

Institutions Code1 section 300 petition, alleging the parents 

created a detrimental and unsanitary home environment, and 

had a history of domestic violence and drug abuse that 

endangered the children’s safety. 

On November 7, 2022, the juvenile court held an initial 

detention hearing. The children were detained from the parents 

and the juvenile court set arraignment for November 28, 2022, a

pretrial release investigation hearing for December 15, 2022, and 

adjudication for January 5, 2023. Father was appointed counsel 

but was not present at the hearing. 

1 All statutory references are to the Welfare and Institutions 

Code.
4

On November 28, 2022, the juvenile court arraigned the 

parents. Father’s counsel appeared via videoconferencing, and 

explained Father had tried to call into the hearing that morning 

but was unsuccessful. After Father’s counsel waived reading of 

the petition and entered a general denial, she requested a 

visitation order for a minimum of two weekly monitored visits for 

two hours upon DCFS’s contact with Father and a written 

visitation schedule. The juvenile court granted Father’s request.

On December 15, 2022, the juvenile court held a pretrial 

release investigation hearing. Father appeared with counsel via 

videoconferencing. Father complained DCFS had failed to 

comply with the juvenile court’s visitation order, indicating he 

had received only one telephone visit with the children since 

detention. He again requested a written visitation schedule, 

including holiday visitations. Father also requested in-person 

visits and a DCFS monitor for the upcoming holidays, since 

Mother’s relatives did not want to be monitors. The juvenile 

court granted Father’s requests, and ordered DCFS to arrange a 

visit with Father as soon as practicable.

In its December 15, 2022 jurisdictional and dispositional 

report, DCFS indicated it had not been able to contact Father for 

an interview, but stated it would make best efforts to interview 

him before the January 5, 2023 adjudication hearing, and would 

file a supplemental report as to the contents of the interview. 

The report recommended monitored visitation with a DCFS 

monitor for Father. It also recommended Father participate in 

individual counseling, parenting classes, a domestic violence 

program, and substance abuse rehabilitation and drug testing.

On January 5, 2023, the juvenile court called the matter for 

adjudication. Father was not present, and his counsel indicated 
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Father had recently been incarcerated. The juvenile court 

granted Father’s counsel’s request for a continuance and an inand-out order to secure Father’s appearance at the next hearing, 

which was set for February 8, 2023. 

On January 24, 2023, DCFS filed a last minute 

information, indicating a social worker attempted to interview 

Father on January 17, 2023, and found through LASD’s Inmate 

Information Center that Father was being housed at an 

outpatient program at Men’s Central Jail, and that Father had a 

scheduled court appearance, making him unavailable to 

interview during the social worker’s work hours. DCFS again 

indicated it would make best efforts to interview Father prior to 

the February 8, 2023 adjudication hearing. 

On February 7, 2023, DCFS filed another last minute 

information, indicating three social workers went to Men’s 

Central Jail to interview Father, however, they were informed 

that Father was unavailable to interview because he was in 

quarantine. 

On February 8, 2023, the juvenile court held a combined 

adjudication and dispositional hearing. Father was present with 

counsel. 

The juvenile court sustained the petition and ordered the 

children removed from the home. It further ordered reunification 

services for the parents. 

Father objected to the recommended case plan, asserting it 

was unrealistic given he had been incarcerated since January 3, 

2023. He indicated DCFS had yet to interview him and had 

failed to inquire with the Men’s Central Jail as to what

reunification services were available to him. He also asked the 

juvenile court to admonish DCFS because Father’s attempts to 
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contact social workers were ignored, and he had not received a 

single in-person visit since the children were detained. In 

response, DCFS assured the juvenile court that there were 

“protocols in place” for it to make sure services were available to 

Father, and asked the juvenile court to adopt the recommended 

case plan. 

After a discussion held off the record, the juvenile court 

adopted the recommended case plan and ordered DCFS to 

provide Father with reunification services. It ordered Father to 

participate in: a full drug and alcohol program, weekly random 

and on-demand drug testing, a 52-week domestic violence 

program, parenting instruction, and individual counseling. 

The juvenile court also ordered DCFS to ensure Father received 

weekly phone or video visits while Father was in custody, and 

two 2-hour visits per week with a DCFS-approved monitor when 

Father was released.

The juvenile court set a six-month review hearing for 

August 9, 2023. After a discussion off the record, the juvenile 

court granted Father’s request for an in-and-out order for that 

date, but acknowledged that it may not be necessary if Father 

was released before then.

Father appealed.

DISCUSSION

Father argues the juvenile court abused its discretion by 

ordering him to participate in various reunification services 

before DCFS had determined whether those services were 

available at Men’s Central Jail, where Father was in custody at 

the time of disposition.2

2 Father requested judicial notice of the juvenile court’s 

“Indian Child Welfare Act attorney order filed June 7, 2023,”
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I. Governing law and standard of review

“A reunification plan must be tailored to the particular 

individual and family, addressing the unique facts of that family. 

[Citation.] [DCFS] is required to make a good faith effort to 

address the parent’s problems through services, to maintain 

reasonable contact with the parent during the course of the plan, 

and to make reasonable efforts to assist the parent in areas 

where compliance proves difficult.” (Katie V. v. Superior Court

(2005) 130 Cal.App.4th 586, 598–599.) “To support a finding 

reasonable services were offered or provided, ‘the record should 

show that [DCFS] identified the problems leading to the loss of 

custody, offered services designed to remedy those problems, 

maintained reasonable contact with the parents during the 

course of the service plan, and made reasonable efforts to assist 

the parents in areas where compliance proved difficult . . . .’

[Citation.] ‘The standard is not whether the services provided 

were the best that might be provided in an ideal world, but 

whether the services were reasonable under the circumstances.’ ” 

(Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1426.)

“If the parent or guardian 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.” (§ 361.5, subd. (e)(1).) “[DCFS] must 

preliminarily identify services available to an incarcerated 

parent. [Citation.] It cannot delegate to an incarcerated parent 

the responsibility for identifying such services. [Citation.] 

[DCFS’s] employees may not simply conclude that reunification 

however, Father has not explained the relevance of that order to 

this appeal. Therefore, we deny the request. 
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efforts are not feasible on the sole ground the parent is 

incarcerated.” (Mark N. v. Superior Court (Los Angeles County 

Dept. of Children and Family Services) (1998) 60 Cal.App.4th 

996, 1012 (Mark N.).)

We review the juvenile court’s dispositional order, 

requiring a parent to participate in reunification services, for 

abuse of discretion. (In re J.P. (2017) 14 Cal.App.5th 616, 624.) 

II. Analysis

As an initial matter, we agree with Father’s general 

contention—that DCFS did not meet its initial burden to 

preliminarily identify services available to Father and, therefore,

the juvenile court potentially adopted a case plan that virtually 

guaranteed Father would fail to reunify with his children. 

The law recognizes incarcerated parents face unique challenges 

in obtaining reunification services, and places the burden on 

DCFS to determine what services are available to an incarcerated 

parent. (Mark N., supra, 60 Cal.App.4th at p. 1012.) Here, there 

is no evidence DCFS attempted to ascertain what services were 

available to Father before recommending its case plan, which the 

juvenile court wholly adopted. 

However, we are hesitant to reverse the dispositional order 

and case plan on the record before us. While the record 

establishes that Father was incarcerated at the time of 

disposition, the parties disagree as to the start of Father’s 

incarceration, and the record suggests the juvenile court adopted 

the recommended case plan under the assumption Father would 

be out of custody shortly after the dispositional hearing.

Father’s appellate counsel claims Father was incarcerated 

from November 2, 2022, the date LASD executed the search 

warrant, through the February 8, 2023 adjudication hearing. 
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However, this claim is unsupported by the record. Father’s trial 

counsel represented that his incarceration began on January 3, 

2023. This date is consistent with other representations in the 

record by Father’s trial counsel. It is also consistent with 

Father’s requests for weekly in-person visits, as well as the 

record of Father’s court appearances throughout the case. 

Further, an early January 2023 incarceration date is also 

consistent with the fact that Father’s trial counsel only began 

requesting in-and-out orders after January 5, 2023. Moreover, 

the record indicates social workers made numerous attempts to 

contact Father while the case was pending but only attempted to 

contact him at Men’s Central Jail after January 5, 2023. As such, 

Father’s appellate counsel’s claim that he was continuously 

incarcerated from November 2, 2023 through the February 8, 

2023 adjudication and dispositional hearing is contradicted by 

the record before us. 

Nevertheless, Father argues his dates of incarceration are 

immaterial and it is undisputed he was incarcerated at the time 

of disposition. This may be true. However, the record is unclear 

as to whether Father remained incarcerated after the 

dispositional hearing. At disposition, it is apparent that Father’s 

counsel, DCFS, and the juvenile court presumed Father would be 

out of custody in the very near future. For example, after 

discussions held off the record, the juvenile court indicates that 

the in-and-out order may not be necessary for the next hearing, 

and Father’s counsel and the juvenile court discuss implementing 

a visitation schedule upon Father’s expected release from 

custody. 

As the record is ambiguous as to Father’s incarceration, 

and Father’s only complaint on appeal is that the reunification 
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services ordered by the juvenile court may not be available due to 

his incarceration, we find the better approach is to conditionally 

affirm the dispositional order and case plan. Upon remand, if the 

record establishes that Father has been incarcerated since 

disposition, the dispositional order and case plan are reversed. 

Under a reversal, the juvenile court is to enter a new 

dispositional order and a case plan that is tailored to Father’s 

circumstances as an incarcerated parent, and to ensure the 

ordered reunification services are actually available to him. 

If, however, the record shows that Father was released from 

custody after the dispositional order such that the availability of 

reunification services at Father’s place of incarceration is now 

moot, the dispositional order and case plan shall remain in effect.

DISPOSITION

The dispositional order is conditionally affirmed, and the 

matter is remanded to the juvenile court for further proceedings 

consistent with this opinion.

VIRAMONTES, J.

WE CONCUR:

STRATTON, P. J.

WILEY, J.