In re Olivia J. 12/2/04 CA4/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: D044209

Case Date: 03/16/2005

Preview:Filed 12/2/04

CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA In re OLIVIA J., a Person Coming Under the Juvenile Court Law. D044209 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. J515074) Plaintiff and Respondent, v. OTIS J., Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Julia Kelety, Judge. Affirmed.

Kathleen M. Mallinger, under appointment by the Court of Appeal, for Defendant and Appellant. John J. Sansone, County Counsel, Susan Strom, Chief Deputy County Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent. Alice C. Shotton, under appointment by the Court of Appeal, for the Minor.

Otis J. appeals a juvenile court judgment of contempt and order for incarceration under Welfare and Institutions Code section 2131 and Code of Civil Procedure section 1218 after the court found he willfully disobeyed its order to participate in the Substance Abuse Recovery Management System program (SARMS)2 as part of his reunification plan in the dependency case involving his minor daughter Olivia J. Otis contends: (1) the court had no authority to order incarceration based on his non-compliance with a reunification component not reasonably related to the problems that caused Olivia to be a dependent; (2) the judgment of contempt was invalid because the court did not enter a specific order that formed the basis of a willful violation; (3) the court improperly delegated complete discretion to a SARMS "recovery specialist" to determine the specific requirements that resulted in a contempt finding and incarceration; and (4) he was denied his right to effective assistance of counsel because his attorney did not seek a continuance to terminate the SARMS requirement, nor did she attempt to stay the order of incarceration to file for writ relief. We affirm the judgment.

1 Statutory references are to the Welfare and Institutions Code unless otherwise specified. 2 SARMS is part of the San Diego County Dependency Court Recovery Project, whose goal is to achieve reunification for families by promoting successful recovery from alcohol or drug dependency. To this end, SARMS provides alcohol and drug treatment services to parents in the dependency system who agree to cooperate with prescribed treatment plans, and case management services to assist parents in addressing their substance abuse problem and support and encourage sobriety. 2

FACTUAL AND PROCEDURAL BACKGROUND Olivia lived with her mother Lenore and two older sisters. Otis had little contact with Olivia but paid child support for her. In June 2003 seven-year-old Olivia telephoned Otis complaining she had been injured when Lenore beat her with a belt. Otis took Olivia to the hospital where it was determined her finger was broken. Olivia became a dependent of the juvenile court under section 300, subdivision (a) based on findings Lenore subjected her to excessive discipline and Olivia had suffered, or was at substantial risk of suffering, serious physical harm inflicted nonaccidentally. The court placed Olivia with her adult sister and ordered reunification services for the parents, including unsupervised visits for Otis. Otis reported a history of alcoholism but said he had been sober for several years. His criminal history included a 1980 felony conviction for driving under the influence and a 1995 conviction for spousal abuse involving Lenore. Otis was 58 years old and lived with his mother, two brothers and sister. Although Otis wanted Olivia placed with him, he acknowledged he did not have appropriate housing for her. On September 9, 2003, the court held a special hearing to order Otis into SARMS. Otis indicated he was prepared to accept the order. The court ordered Otis to participate in SARMS and explained its various requirements, including not using or possessing any alcohol or illegal drugs, testing on demand, attending all required counseling and treatment, following the rules of the program and cooperating with SARMS staff and the social worker. The court admonished Otis that failing to comply with these requirements could result in a finding of contempt of court for disobeying a court order, which meant 3

he could be placed into custody, terminated from SARMS or asked to go to dependency drug court.3 (See

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