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In re Nolan W.

March 30, 2009

IN RE NOLAN W., A MINOR, ON HABEAS CORPUS.


Ct.App. 4/1 D050408 San Diego County Super. Ct. No. NJ13442. Judge Harry Mark Elias.

The opinion of the court was delivered by: Corrigan, J.

In an effort to address the intractable problem of parental drug abuse in juvenile dependency cases, the San Diego County Superior Court implemented an aggressive treatment program known as the Substance Abuse Recovery Management System (SARMS). A parent who is believed to have "alcohol and/or drug issues" will be assessed and, if necessary, ordered to participate in SARMS as part of a family reunification case plan. (Super. Ct. San Diego County, Local Rules, rule 6.1.19; hereafter Rule 6.1.19.) The San Diego court enforces parental compliance with SARMS using not just the carrot of reunification, but also the stick of compulsory jail time. For every incident of noncompliance with SARMS, an offending parent may be cited for contempt and incarcerated for up to five days. (Rule 6.1.19.) The "stick" proved to be quite large in this case, in which a mother was sentenced to 300 days in custody for failing to enter drug treatment.

The Court of Appeal found, and all parties agree, that this lengthy jail sentence was an abuse of the juvenile court's discretion. However, in reaching this decision, the Court of Appeal declined to resolve whether a court may, under some circumstances, enforce its reunification orders through contempt proceedings and incarceration. We granted the mother's petition for review limited to the following issues: (1) Did the court have authority to require the minor's mother to participate in a substance abuse program as part of her reunification plan? (2) Did Welfare and Institutions Code section 213*fn1 authorize the court to hold her in contempt and incarcerate her for failing to comply with that component of the plan?

The first question is not controversial. Both sides agree, and we conclude, that a juvenile court has the power to order a parent to participate in substance abuse treatment as part of a reunification plan. As to the second question, we conclude contempt sanctions may not be used as punishment solely because the parent failed to satisfy a reunification condition.

The court certainly has broad statutory authority and inherent power to enforce its orders using contempt sanctions. However, the juvenile court's intervention to protect a child from abuse or neglect is regulated by an explicit statutory scheme. If the court determines that a child is at risk, it is authorized to remove the child from parental custody and ultimately to terminate parental rights. In order to regain custody, a parent must demonstrate, generally through compliance with a reunification plan, that a return to parental care is in the child's best interest. It is well settled, however, that reunification services are voluntary, and an unwilling parent may not be compelled to participate. The statutory scheme contains a specific remedy for parental shortcomings during reunification. The statutes consistently provide that a parent's failure to participate in services is evidence that a return to parental custody would be detrimental to the child. (§§ 361.5, subd. (a), 366.21, subds. (e)-(f), 366.22, subd. (a).) If the problem is left uncorrected, these findings will ultimately lead to a permanent loss of custody and parental rights. Real party suggests the availability of brief periods of incarceration for contempt would be beneficial, before a court imposes the ultimate sanction of parental rights termination. While that argument can be made, there is no indication that the Legislature intended parents to be punished in this manner. Moreover, as the facts of this case demonstrate, allowing juvenile courts to incarcerate parents for failing to comply with reunification orders is problematic because there are no statutory principles to guide or constrain the court. Accordingly, given the unique nature of reunification orders, we conclude that the juvenile court may not use its contempt power to incarcerate a parent solely for the failure to satisfy aspects of a voluntary reunification case plan.

BACKGROUND

The relevant facts are not disputed. On the day of his birth, both Nolan W. and his mother, Kayla W., tested positive for amphetamines. Mother admitted using drugs and alcohol during pregnancy and agreed she needed residential treatment. Mother had not been in contact with the child's father and did not know how to reach him.

The San Diego County Health and Human Services Agency (Agency) filed a juvenile dependency petition alleging that because of her drug use Mother had failed to protect her child. (§ 300, subd. (b).) Mother submitted the case on the social worker's report. The juvenile court found the allegations true and placed the minor with a maternal aunt. When Mother agreed to participate in a reunification plan, the court ordered her to enroll in the SARMS program. The court specifically advised Mother that if she failed to follow the program's rules she could be held in contempt of court and sentenced to five days in jail for each violation. Mother acknowledged receiving a copy of the order referring her to SARMS.

When Mother enrolled in SARMS on July 31, 2006, she tested positive for methamphetamine. As part of SARMS, she was directed to attend sessions at a recovery center five days a week. During the next month, Mother frequently missed recovery sessions, failed to stay in contact with SARMS, and did not submit to drug testing. When Mother also failed to appear in court for her first SARMS review hearing, the court issued a bench warrant for her arrest. Mother remained out of contact with SARMS, and on October 18, 2006, the court removed her from the program.

On December 4, 2006, Mother appeared in court for a hearing on a section 387 petition to change the minor's placement. After Mother admitted her SARMS violations, the court found her in contempt on 60 counts of noncompliance with the court-ordered SARMS participation.*fn2 The court entered a contempt judgment and sentenced Mother to five days for each violation, for a total of 300 days in custody. However, it stayed imposition of judgment on the condition that Mother enroll in and complete a residential drug treatment program. Mother failed to do so and failed to appear at a contested six-month review hearing. Based on the Agency's report, the court terminated reunification services and set the matter for a permanency planning hearing. (§ 366.26.) The court also issued a warrant for Mother's arrest for her failure to appear.

Two weeks later, following her arrest, Mother was returned to court. Nolan's counsel joined Mother's attorney in arguing that Mother should not be punished for failing to complete services because services had been terminated and there was a great likelihood Mother would lose parental rights at the upcoming section 366.26 hearing. Nonetheless, because Mother "broke her promise" to enter treatment, the court lifted the stay of the contempt judgment and sentenced Mother to 300 days in custody. She was later released after serving 32 days. Although the juvenile court had initially intended to keep Mother jailed until she had served 25 percent of the sentence (75 days), it was persuaded to release her when all counsel, including counsel for the Agency, argued Mother's continued confinement was pointless because reunification services had been terminated. The court expressed frustration with parents who break their "agreements" and voiced an intent to impose future contempt sentences immediately for instances of noncompliance.

Mother attempted to appeal from the contempt order. The appellate court held that the exclusive means of challenging such an order is by a petition for extraordinary writ relief. Rather than dismissing the appeal, however, the court exercised its discretion to treat it as a writ petition. The court also concluded Mother's claims were not moot because the juvenile court had not vacated its original order and the dependency proceedings had not reached finality. The court declined to reach the merits of Mother's argument that the juvenile court lacked the authority to issue the contempt order. Even assuming the trial court had such authority, the Court of Appeal observed the 300-day sentence, imposed after reunification services had been terminated, was a clear abuse of discretion.

We conclude the juvenile court does have authority to order parental participation in substance abuse treatment as part of a reunification plan, but section 213 does not permit the court to punish a parent for contempt solely on the basis that the parent has failed to comply with the court-ordered treatment.

DISCUSSION

I. The SARMS Program

The Juvenile Court of San Diego County implemented SARMS in April 1998.*fn3 SARMS is an intensive case management program operated by contract with an independent provider*fn4 that specializes in managing drug and alcohol cases. (See Milliken & Rippel, Effective Management of Parental Substance Abuse in Dependency Cases (2004) 5 J. Center for Families, Children & Cts. 95, 99 (hereafter Milliken & Rippel).)

If a social worker notifies the juvenile court that the parent of a minor child may have a substance abuse problem, the court refers the parent to SARMS for an assessment. (Rule 6.1.19.) If the parent has not voluntarily submitted to a SARMS assessment by the time the court assumes jurisdiction over the minor, "the court will order [the] parent to report to SARMS for assessment within 48 hours." (Ibid.) The San Diego court thus requires a SARMS assessment in all dependency cases when the potential for parental substance abuse exists. If the assessment indicates a need for treatment, a SARMS caseworker prepares a recovery services plan, which is made part of the parent's reunification case plan. The SARMS plan typically includes counseling, therapy, education and support groups, as well as frequent random drug and alcohol tests. Every two weeks, SARMS reports to the court on the parent's compliance and the results of drug tests. Every 30 days, the court holds a hearing to review the parent's progress in treatment. (Milliken & Rippel, supra, 5 J. Center for Families, Children & Cts., at p. 99.)

Once participation in SARMS is made part of a parent's reunification case plan, the parent cannot withdraw from the program without suffering consequences. Any noncompliance with the SARMS recovery plan, including missed or failed drug tests or missed meetings, results in a cascade of judicial sanctions made mandatory by a local court rule. Rule 6.1.19 states that every " 'noncompliant event' " "will result in the following sanctions: For the first violation, the parent will receive a judicial reprimand. For each subsequent violation, the parent will be cited for contempt of court for disobeying a court order; a finding of contempt may result in a fine and/or incarceration for up to five days." After a parent has been jailed for contempt, he or she is referred to the county's dependency drug court. (Ibid.) The dependency drug court supervises a nine-month program involving even more judicial oversight. (Milliken & Rippel, supra, 5 J. Center for Families, Children & Cts., at p. 99.) As with SARMS, a parent's failure to comply with drug court orders results in sanctions of increasing severity, including up to five days in custody for each noncompliant event. (Ibid.) Repeated failures to comply with drug court orders may result in the parent's termination from drug court and the scheduling of a permanency planning hearing.

II. Authority to Order Substance Abuse Treatment in Reunification Plan

The overarching goal of dependency proceedings is to safeguard the welfare of California's children. (In re Josiah Z. (2005) 36 Cal.4th 664, 673.) "Family preservation, with the attendant reunification plan and reunification services, is the first priority when child dependency proceedings are commenced. [Citation.] Reunification services implement 'the law's strong preference for maintaining the family relationships if at all possible.' [Citation.]" (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787.) Reunification services are typically understood as a benefit provided to parents, because services enable them to demonstrate parental fitness and so regain custody of their dependent children. (See, e.g., In re Baby Boy H. (1998) 63 Cal.App.4th 470, 475 [explaining reunification "services are a 'benefit' " and rejecting an argument that parents have a constitutional entitlement to services].)

The legislative scheme reflects this reunification goal. With some limited exceptions not relevant here, section 361.5 requires the juvenile court to order child welfare services for both parent and child when a minor is removed from parental custody. Unless an exception applies, "whenever a child is removed from a parent's or guardian's custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child's mother and statutorily presumed father or guardians." (§ 361.5, subd. (a); see Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 845 [parent's receipt of services is presumed at the outset of dependency proceedings].) "This requirement implements the law's strong preference for maintaining the family relationship if at all possible. [Citation.]" (In re Baby Boy H., supra, 63 Cal.App.4th at p. 474.)

The reunification statute further provides: "When counseling or other treatment services are ordered, the parent or guardian shall be ordered to participate in those services, unless the parent's or guardian's participation is deemed by the court to be inappropriate or potentially detrimental to the child." (ยง 361.5, subd. (a).) In addition, under section 362, subdivision (c): "The juvenile court may direct any and all reasonable orders to the parents or guardians of the child who is the subject of any proceedings under this chapter as the court deems necessary and proper to carry out the provisions of this section . . . . That order may include a direction to participate in a counseling or education program, including, but not limited to, a parent education and parenting program operated by a community college, school district, or other appropriate agency designated by the court. . . . The program in which a parent or guardian is required to participate shall be designed to eliminate those conditions that led to the court's finding that the ...


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