Vera A. v. Superior Court of Orange Cty.

[1236]Opinion

CROSBY, J. In this writ proceeding,1 we are asked to consider an ongoing dispute between the local public defender and county counsel concerning whether the Orange County Social Services Agency (SSA) has a policy regarding arbitrary distance limits beyond which visitation with dependent children need not be provided to incarcerated parents as part of their reunification services. The public defender has submitted evidence to show there is such a policy, and we accept it per Code of Civil Procedure section 909.2

The county counsel vehemently denies such a policy exists. But he also argues, and we must agree, that the issue is almost entirely beside the point in any event. The court makes visitation orders, not SSA; and it is rarely, if ever, our role to censor the report writing policies of agencies in the executive branch. Thus, any such policy is only of moment insofar as it may tend to shed light on an allegedly similar impermissible policy of the juvenile court.

In this case the parent is incarcerated 275 miles away from the child. SSA requested, and the court ordered, a geographical limitation on the visitation component of the reunification plan of 50 miles. That order, as we shall explain, is plainly arbitrary under the applicable code section and must be set aside.

We begin with the statutory scheme: Welfare and Institutions Code section 361.5, subdivision (e)(1), as pertinent here, provides, “If the parent or guardian is incarcerated or institutionalized, the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the minor. In determining detriment, the court shall consider the age of the minor, the degree of parent-child bonding, the length of the sentence, the nature of the treatment, the nature of the crime or illness, the degree of detriment to the minor if services are not offered and, for minors 10 years of age or older, the minor’s attitude toward the [1237]implementation of family reunification services, and any other appropriate factors. Reunification services are subject to the 18-month limitation imposed in subdivision (a). Services may include, but shall not be limited to, all of the following: [^D(A) Maintaining contact between parent and minor through collect telephone calls. [^Q(B) Transportation services, where appropriate. [IKC) Visitation services, where appropriate. [^(D) Reasonable services to extended family members or foster parents providing care for the minor if the services are not detrimental to the minor." (Italics added.)