Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. J06-01418
Jenkins, J.
L.L. (father) appeals from orders of the juvenile court following a dispositional hearing on a second supplemental juvenile dependency petition filed by respondent Contra Costa County Children and Family Services Bureau (Bureau) concerning his minor daughter, A.R., born in December 2005. We remand for further proceedings.
Background
Original Petition
On July 31, 2006, the Bureau filed a juvenile dependency petition under Welfare and Institutions Code section 300, subdivision (b) alleging that A.R. was at risk of harm as a result of the failure or inability of her parent to protect her adequately. In factual support of the allegation, the petition asserted as follows: On July 7, 2006, the child’s mother placed the child at risk by driving with the child without a car seat; mother and father engaged in a confrontation with the child present; during the confrontation mother placed the child on the pavement as she drove away; and mother struck the child’s father with her van while father was holding the child in his arms. On September 8, 2006 the juvenile court found there was substantial danger to the physical health of the minor. The court ordered the minor detained with authority for the Bureau to release her to her mother.
Further statutory references are to the Welfare and Institutions Code unless otherwise noted.
The caseworker’s jurisdiction/disposition report dated October 25, 2006 notes that mother lives with A.R. in a one-bedroom apartment in San Pablo and father lives with his adoptive father in Hercules. In the report, the caseworker stated that father first contacted her on September 11, 2006, and told her he and mother no longer see each other. Father also told her he would like to take custody of his baby if mother was unable to care for the child. The caseworker also reported she made an unannounced home visit to mother on October 17, 2006. At that time, mother stated she and father were getting along better. The caseworker called father on his cell phone on October 18, and he said he was at mother’s apartment caring for A.R. while mother was at work. Father also told the caseworker he provides for A.R.’s needs and helps mother financially.
Regarding visitation, the report states that according to mother, father sees A.R. a few times a week. Mother told the caseworker that when father wants to visit A.R. mother takes her to a park and father meets them there. Father told the caseworker he takes care of A.R. when mother is working. The caseworker opined that mother appears to be “taking good care of her baby,” but needs to engage in anger management and parenting classes.
Regarding disposition, the caseworker recommended the court adjudge the child a dependent, vacate its earlier detention order and order that the child remain in the home of the mother under the Bureau’s supervision. The caseworker also recommended that the Bureau make services available to mother as outlined in mother’s case plan. The caseworker also recommended that the Bureau arrange visitation with father at a minimum of one hour once per month.
A disposition hearing was held on October 25, 2006. Father was present and represented by counsel. The juvenile court sustained the petition, adjudged the child a dependent of the court, and set a six-month review for April 4, 2007. The court adopted the findings and recommendations outlined in the Bureau’s disposition report dated October 25, 2006, and elevated father to presumed father status.
In her status review report, dated March 20, 2007, the caseworker states that she had visited mother and A.R. on several occasions, and A.R. seemed to be “doing very well and appears to be happy and interacts well with others.” Regarding visitation, the caseworker stated A.R. has regular contact with her maternal grandparents and other family members. The caseworker stated father had been incarcerated since December 13, 2006, and that prior to his incarceration father had regular visitation with A.R. Father informed the caseworker that during his incarceration he has maintained regular telephone contact with A.R. The caseworker recommended mother receive an additional six months of family maintenance services. Additionally, the caseworker recommended the court order visitation with father for a minimum of one hour per month, supervised at the discretion of the Bureau.
Counsel for father appeared at the status review hearing on April 4, 2007. The court continued the child as a dependent of the court and ordered that the child remain in the home of the mother under the Bureau’s supervision. Also, the court ordered visitation with father to be arranged for a minimum of one hour per month as recommended by the caseworker.
In this appeal, father does not challenge any of the juvenile court’s orders arising from the original petition.
First Supplemental Petition
On July 26, 2007, the Bureau filed a supplemental petition pursuant to section 387. The petition alleged that the previous disposition had not been effective in the protection of the child because mother had not complied with the case plan by failing to enroll and participate in anger management counseling, failing to enroll and participate in a parenting education program, and failing to ensure A.R. received her immunizations. The petition further alleged mother had not demonstrated the ability to maintain a clean, healthy, and safe home for the child because she had not made the child available to the Bureau and was unresponsive to the Bureau’s request to conduct a home visit to ensure the child’s safety. The Bureau recommended modifying the disposition to place A.R. with a foster caretaker and set the matter for a detention hearing the next day on July 27.
Father was present and represented by counsel at the July 27 detention hearing. The juvenile court ordered the child detained but authorized the Bureau to release the minor temporarily to mother prior to the next hearing. Also, the court ordered that visitation between the minor, mother and father may be arranged and supervised by the Bureau and set the matter for a jurisdiction/disposition hearing on August 17, 2007. Father did not appeal the court’s detention order.
In this appeal, father challenges the juvenile court’s detention order on the first supplemental petition by way of an ineffective assistance of counsel claim. (See post, at p. 8.)
The Bureau prepared a report for the August 17 jurisdiction/disposition hearing. In discussing disposition, the Bureau’s report noted that mother “loves her daughter” and since the detention hearing of July 27 she has “demonstrated to the Bureau she will address the issues that led to this dependency.” The report also stated: “[A.R.] may safely remain home with [mother] as long as [mother] continues to take steps to address this dependency. The mother states father does not live at the home. The mother understands she needs to put the child’s safety first.” The report added that “Ms. Tamya P., maternal grandmother, has come forth requesting that the Bureau assess her home for relative placement in the event that such is needed.” Regarding visitation, the report stated: “The child had weekly visits with the father. Mother states the visit takes place in her home.”
Regarding disposition, the Bureau recommended the court continue the child as a dependent of the court, vacate the detention order of July 27, 2007 and order that the child remain in the home of the mother under the Bureau’s supervision. The Bureau also recommended the court order that father “may not live in the same household as the child” and that visitation with father is for a minimum of one hour twice per month, under supervision at the discretion of the Bureau.
The juvenile court’s disposition order of August 17, 2007, sustained the first supplemental petition on both counts. The court continued the child as a dependent of the court and adopted the Bureau’s findings and recommendations.
Second Supplemental Petition
The Bureau filed a second supplemental petition pursuant to section 387 on October 25, 2007. This petition asserted the previous disposition had not been effective in the protection of the child. In support of the petition the Bureau alleged: Father physically assaulted mother on or about October 19, 2007; on the same day, father sent a text message to mother in which he threatened to kill her if she was with another man; mother was murdered on or about October 20, 2007, and is no longer able to care for the child; father is currently incarcerated and cannot provide care or support to the child; and father has a history of drug and alcohol abuse. The petition’s recommended modified disposition was to place A.R. with a foster caretaker.
At a jurisdiction hearing on November 9, 2007, the Bureau amended the petition to state a single allegation that the child’s mother was murdered and is no longer able to care for the child, and dismissed the other allegations. Father’s counsel requested that the Bureau explore “any possible placement with paternal relatives,” including the paternal grandfather. The Bureau reported that A.R. was currently in foster care with a maternal relative. The juvenile court sustained the second supplemental petition as amended. Father did not appeal the court’s jurisdictional finding. The court initially set the matter for disposition on December 14, 2007. The disposition hearing was continued until January 17, 2008.
In this appeal, father challenges the juvenile court’s jurisdictional finding on the supplemental petition by way of an ineffective assistance of counsel claim. (See post at p. 10.)
The Bureau’s caseworker prepared a disposition report dated December 14, 2007. The report noted father has not yet participated in services to address issues related to his criminal history, such as substance abuse and domestic violence, and opined that “the child would not be safe in the father’s care at this time.” Regarding visitation, the report noted father has not been provided visitation with the child since he was arrested and incarcerated in October 2007 as a suspect in mother’s murder. Also, the report stated that there is currently a restraining order in place prohibiting contact between the father and the child. Additionally, the report stated that although reunification with the father is the preferred outcome, the desired permanent plan for the child would be adoption with a relative if father is unable to reunify before termination of services.
In its assessment and evaluation section of the report, the Bureau noted the investigation into mother’s murder is ongoing and so it could not be said with certainty that father was responsible for her death. Accordingly, the Bureau recommended provision of reunification services to father to address issues of domestic violence and substance abuse. The report also stated: “In addition to addressing issues of domestic violence and substance abuse, the father would need to demonstrate that he is able to maintain a stable and healthy lifestyle, and a legal means to support himself and his child. The time and opportunity that he has to achieve these objectives may be limited by his incarceration, particularly if the Richmond Police Department’s investigation results in the father being charged with murder.”
Against this background, the Bureau recommended, inter alia, that the court: continue the child as a dependent of the court; find pursuant to section 361, subdivision (c)(5) that father cannot care for the child due to his incarceration; find that placement of the child with father would be detrimental to the well-being of the child; terminate provision of family maintenance services to mother; adopt the case plan permitting services to father to help the child return home; and order supervised visitation with father for a minimum of one hour twice per month.
Father was in custody but appeared with counsel at the disposition hearing on January 17, 2008. Also present was Tiffany H., A.R.’s aunt, who informed the court she and her husband had A.R. in their care. Counsel for A.R. informed the court that the Bureau had agreed to amend the case plan to permit father to participate in domestic violence and parent education classes “when they become available or upon release.” She added that father is “currently at MDF [Martinez Detention Facility] and does not have access to either of those programs. If he’s moved to West County or he’s released from custody, he would then be able to participate in those programs.”
Father’s counsel stated the parties had been unable to agree on the issue of visitation, and objected to the Bureau’s recommendation that visitation be provided only if father is not incarcerated. He argued that visitation is a necessary component of reunification and therefore visitation should be ordered during father’s incarceration. Counsel for the Bureau noted that the jail where father is held does not permit physical contact during visitation, and opined that no-contact visitation would be “more upsetting than beneficial” to a two-year old child. Bureau counsel also stated the Bureau was not required to transport a child to facilitate visitation with an incarcerated parent. Counsel for the Bureau and for A.R. agreed that contact visitation at a local facility would be appropriate. However, father’s counsel insisted the Bureau’s concerns about non-contact visitation were “speculative” at this point, and asked the court to order visits “even if they are no-contact visits.”
Ultimately, the court adopted the Bureau’s position, stating: “I agree. A two-year-old is not ― they aren’t generally great conversationalists that can appreciate a non-contact visit at a jail facility, but a contact visit would be fine.” The court said it hoped “father can get moved to West County where [contact visits are] more likely to occur.” Accordingly, the court adopted the Bureau’s recommendations after amending “Number 12 so that visitation with father will be a minimum of one hour, two times per month, and must be supervised if it is a contact visit. [¶] And the Bureau will provide visitation to the father if he is not incarcerated or if there is a contact visit permitted at the jail facility.”
The juvenile court’s oral ruling on disposition is reflected in the minute order dated January 17, 2008. Father filed a timely notice of appeal on February 1, 2008.
Discussion
A. Ineffective Assistance of Counsel
Father contends A.R. should have been placed with him when she was removed from mother on the first supplemental petition. Also, he contends the court should have granted him legal custody of A.R. upon the filing of the second supplemental petition. Father acknowledges his counsel failed to object on these grounds to the juvenile court’s earlier detention and jurisdictional orders. However, father argues he is entitled to raise the issues now because trial counsel’s failure to object was ineffective assistance of counsel.
A parent represented in a dependency proceeding is entitled to competent counsel. (§ 317.5.) A claim of ineffective assistance of counsel may be reviewed on direct appeal if there is no satisfactory explanation for trial counsel’s actions or failure to act. (In re Dennis H. (2001) 88 Cal.App.4th 94, 98, fn. 1.) To establish ineffective assistance of counsel, a parent must demonstrate both that counsel’s representation fell below an objective standard of reasonableness, and resulting prejudice. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.) To establish prejudice, a parent must demonstrate it is “ ‘reasonably probable that a result more favorable to [him] would have been reached in the absence of the error.’ [Citation.]” (Id. at p. 1668.) The court need not evaluate whether counsel’s performance was deficient before examining the issue of prejudice. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.) Rather, the court may reject a claim of ineffective assistance of counsel if the parent cannot show the result would have been more favorable but for his trial counsel’s failings. (Ibid.)
1. First Supplemental Petition
In pertinent part, section 361.2 states: “When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.” (§ 361.2, subd. (a).) The statute also provides that “[t]he court shall make a finding either in writing or on the record of the basis for its determination under subdivisions (a) . . . .” (§ 361.2, subd. (c).)
Father contends the juvenile court’s detention order on the first supplemental petition violated section 361.2. Specifically, father contends that after removing A.R. from mother’s custody the trial court was required under section 361.2 to determine if he wanted custody, and, if so, to grant him custody unless the court found by clear and convincing evidence that such placement was detrimental to the well-being of the child. Father asserts that at the time of the detention hearing on the first supplemental petition held on July 27, 2007, he was the “non-custodial parent and [] had clearly asked for custody.” Despite this, he continues, the juvenile court “did not place the child with him, nor did it make findings, by clear and convincing evidence, that placement of [A.R.] with her father would be detrimental to her.”
Father’s claim of ineffective assistance is without merit. As we explain more fully below, a request by counsel at the detention hearing that father should be granted custody pursuant to section 361.2, subdivision (a) would have been refused as premature because section 361.2 does not apply at a detention hearing.
Section 361.2 is not triggered unless “a court orders removal of a child pursuant to Section 361.” (§ 361.2, subd. (a).) Under section 361, a court may remove a minor from the physical custody of a parent on various grounds, only upon clear and convincing evidence of substantial danger to the health or safety of the child. (§ 361, subd. (c).)
In this case, the juvenile court held a joint jurisdiction and disposition hearing on the first supplemental petition on August 17, 2007. The juvenile court sustained the petition and continued A.R. as a person described by section 300. However, the juvenile court adopted the Bureau’s recommendation that the child remain in the home of the mother. The court decided not to remove A.R. from mother’s custody pursuant to section 361. Therefore, the court did not trigger the provisions of section 361.2 and was not required to make findings under that section. Thus, because a request by father’s counsel at the detention hearing on the first supplemental petition to grant him custody pursuant to section 361.2 would have been denied as premature, counsel’s failure to make that request did not amount to ineffective assistance.
Father’s reliance on In re V.F. (2007) 157 Cal.App.4th 962 and In re Marquis (1995) 38 Cal.App.4th 1813 is misplaced. In those cases, the juvenile court failed to follow the procedures set forth in section 361.2 for placing a dependent child following removal from the custodial parent at the disposition hearing pursuant to section 361. (In re V.F., supra, 157 Cal.App.4th at pp. 969-970; In re Marquis, supra, 38 Cal.App.4th at pp. 1820-1821.) Neither case involved the issue of placement of a child during a temporary detention.
2. Second Supplemental Petition
Father contends that despite his incarceration he was entitled, as the noncustodial parent, to assume legal custody of A.R. under section 361.2 and “to make arrangements for her care until his release, unless the department could show that he was unable to arrange appropriate care.” On that basis, father contends counsel was ineffective because counsel did not insist at the jurisdictional hearing on November 9, 2007, that legal custody must be offered to father. Father’s contention fails for lack of prejudice.
As already noted, if the juvenile court removes a child from a custodial parent pursuant to section 361, the court is required under section 361.2 to “first determine whether there is a parent . . . with whom the child was not residing . . . who desires to assume custody of the child.” (§ 361.2, subd. (a).) Moreover, if there is a noncustodial parent who desires to assume custody and that parent requests custody, then “the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.” (§ 361.2, subd. (a).) These statutory provisions apply “even when a noncustodial parent is incarcerated.” (In re V.F., supra, 157 Cal.App.4th at p. 971 [noting that “a parent may have custody of a child, in a legal sense, even while delegating the day-to-day care of that child to a third party for a limited period of time”] [citation omitted].)
Thus, “[b]efore the court can fashion a placement order under section 361.2, subdivision (b), it must first determine the predicate issues under section 361.2, subdivision (a) — whether the noncustodial parent is seeking custody of the child and, if so, whether placement with that parent would be detrimental to the health, safety or physical or emotional well-being of the child. (Citation.)” (In re V.F. supra, 157 Cal.App.4th at p. 971.) Accordingly, in the context of his ineffective assistance claim, father must demonstrate the juvenile court would have made such predicate findings in his favor in order to establish prejudice. (In re Kristin H., supra, 46 Cal.App.4th at p. 1668 [to establish prejudice, parent must show it is reasonably probable he or she would have obtained a more favorable result].)
Father’s presence at the jurisdictional hearing on November 9, 2007 was waived by counsel. The Bureau submitted the issue of jurisdiction on the basis of an Investigative Narrative report prepared on October 29, 2007. The report states mother was allegedly shot by father; mother was taken to the hospital in brain-dead condition; and father did not come to the hospital prior to his arrest on suspicion of murder. It further states that A.R. is with her maternal aunt and uncle, Tiffany H. and Kylan P., and they wished to be her legal guardians. Tiffany and Kylan have two sons, one aged 5 years and the other aged 14 months. It reports that when the caseworker visited their home on October 23, A.R. was playing with their younger son. A.R. was clean and appropriately dressed, appeared comfortable in her surroundings and “never cried or seemed distressed” during the caseworker’s visit. The caseworker completed an inspection of their home and found everything in order. She reported that Kylan works full time as a bank manager and Tiffany is a student who has applied to the post office for employment. The report concluded that allegations of caretaker incapacity against father and mother are substantiated on the basis of information contained therein, and that A.R. was in placement with relatives. In terms of case planning, the report recommended the court “determine the next steps.”
In sum, the Investigative Narrative shows that in the immediate aftermath of her mother’s murder, A.R. was being well looked after and was comfortable and secure in the home of her maternal aunt and uncle. Additionally, the Narrative shows that father was incarcerated on suspicion of mother’s murder, that the investigation was ongoing, and states that under such uncertain and difficult circumstances the social worker’s prime concern was the safety of A.R. and her maternal relatives. Accordingly, the Investigative Narrative constitutes compelling evidence that placement of A.R. with father at that time could have been detrimental to her physical and emotional well-being. Father, on the other hand, presented no evidence at the jurisdictional hearing that placement of the child with him pursuant to section 361.2 would not be detrimental to A.R.’s physical or emotional well-being. Therefore, we conclude that even if the trial court had determined father was a noncustodial parent who desired to assume custody of A.R., father has failed to show it is reasonably probable the trial court, pursuant to section 361.2, subdivision (a), would have made a determination at the time of the jurisdictional hearing that placement with father would not be detrimental to A.R. Accordingly, his ineffective assistance of counsel claim fails.
B. Visitation
1. Background
The juvenile court’s disposition order of January 17, 2008 granted father visitation rights of one hour, twice per month at a minimum “only if as a contact visit and [the visits] are supervised while father is in local custody.” Father contends that the restriction placed upon his visitation with A.R. was error because visitation should have been scheduled as frequently as possible consistent with A.R.’s wellbeing, as provided under section 362.1, subdivision (a). Father also contends that because the Martinez Detention Facility where he is incarcerated does not permit contact visits, the juvenile court’s order effectively denied him any visitation at all with A.R., and therefore constituted a denial of due process.
Respondent suggests that the juvenile court’s visitation order was a proper exercise of the court’s broad discretion to determine the time, place and frequency of a child’s visitation with a parent. Respondent also maintains that the visitation order does not violate father’s due process rights because the court did not deny all visitation, but rather properly limited those rights upon a finding that non-contact visits would not be beneficial to A.R.
The evidence adduced at the disposition hearing regarding visitation for father during his incarceration was as follows: Counsel for the Bureau stated: “Our concern is that the child is two years old, and currently the visits would be no-contact visits, which we believe would be detrimental to the child, to be brought to the jail and to not be able to have any physical contact with her father. It would be more upsetting than beneficial to the child.” Counsel for A.R. opined: “I agree with the Department. I think a two-year-old child is very different than, say, a 10-year-old child that could actually have some communication with the father. Much of the communication that occurs between a two-year-old and a parent is physical in nature, and that the noncontact visitation between glass wouldn’t be very beneficial at all. And if it’s an issue of the father seeing the child, pictures can be provided for him.” After hearing the opinion of counsel, the juvenile court stated: “I agree. A two-year old is not ― they aren’t great conversationalists that can appreciate a noncontact visit at a jail facility, but a contact visit would be fine.”
Analysis
In general, “[t]he standard of appellate review of custody and visitation orders is the deferential abuse of discretion test. [Citation.] The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the ‘best interest’ of the child.” (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) However, the visitation order in this case, effectively denied any visitation between the incarcerated father — who had been granted reunification services — and his two-year old daughter.
The general visitation statute, section 362.1, provides that where the court orders reunification services for a parent it must also provide for visitation between that parent and the child. (§ 362.1, subd. (a)(1)(A).) Moreover, “[v]isitation shall be as frequent as possible, consistent with the well-being of the child[]” and without jeopardizing the safety of the minor. (§ 362.1, subd. (a)(1)(A)-(B).) The goal of such visitation is to maintain ties between the parent and the minor and provide information relevant to deciding if, and when, to return a minor to the custody of his or her parent. (§ 362.1.)
Section 361.5 sets forth the requirements for family reunification services for the incarcerated parent. In particular, the court shall order reasonable services for the incarcerated parent, including visitation, unless the court determines, by clear and convincing evidence, those services would be detrimental to the minor. (§ 361.5, subd. (e)(1) [italics added].) 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 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 implementation of family reunification services, and any other appropriate factors. (Ibid. [italics added].)
Courts have interpreted sections 362.1 and 361.5 to mean 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. (1998) 65 Cal.App.4th 765, 773.) Under the particular facts of this case, therefore, we deem our review must determine whether the record contains substantial evidence from which the court could find clear and convincing evidence that non-contact visitation — the only visitation available to father — would be detrimental to the child. (Edgar O. v. Superior Court (2000) 84 Cal.App.4th 13, 18-19; In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562.) Clear and convincing evidence must be “sufficiently strong to command the unhesitating assent of every reasonable mind.” (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205-1206.) However, we give the court’s detriment finding the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of the judgment of the trial court. (In re B.D. (2008) 159 Cal.App.4th 1218, 1232.)
The court’s visitation order permitted father only contact visitation with A.R. during his incarceration, even though the court knew the facility where father is incarcerated allowed only non-contact visitation. The juvenile court’s order, however, is not supported by clear and convincing evidence that non-contact visitation with father in a jail setting would be detrimental to A.R.
First, the juvenile court relied solely on the lay opinion of the Bureau’s and the minor’s counsel. This was improper because “[i]t is axiomatic that the unsworn statements of counsel are not evidence. (Citations.)” (In re Zeth S. (2003) 31 Cal.4th 396, 414, fn. 11.) Furthermore, the juvenile court based its finding solely on the fact A.R. is two-years old. This was also improper. As the court held in In re Dylan T., supra, the statutory scheme does not recognize a blanket restriction on visitation for incarcerated parents based solely on the age of the child. (In re Dylan T., supra, 65 Cal.App.4th at p. 773.) Indeed, the Dylan T. court observed: “ ‘Every parent and child . . . is entitled to a meaningful judicial evaluation of the . . . visitation question every time an order regarding reunification services is made.’ (Citation).” (Id. at p. 775) In particular, the Dylan T. court concluded the juvenile court’s order denying a parent jail visitation solely because of the minor’s age deprived the parent “of a meaningful evaluation of the visitation question” because the only evidence before the juvenile court was the “bare allegation that [the minor] would suffer detriment by visiting his incarcerated parent.” (In re Dylan T., supra, 65 Cal.App.4th at p. 775.) Similarly, the father in this case was effectively denied jail visitation on the basis of bare allegations by counsel that non-contact visits would be detrimental to A.R. because she is only two-years old.
In sum, having thoroughly examined the record before us, we find there was simply no competent evidence to support the trial court’s implied finding of detriment. The case law clearly prescribes that a finding of detriment must be made before visitation can be denied to an incarcerated father who has been offered reunification services. Accordingly, we must reverse the visitation restriction imposed by the trial court and remand the matter for further proceedings, taking into account the parties’ current circumstances. Accordingly, we need not address whether the juvenile court’s visitation order amounted to a denial of father’s due process rights.
Disposition
The juvenile court’s dispositional order is reversed and the matter is remanded for further proceedings consistent with this opinion.
We concur: McGuiness, P. J., Siggins, J.