In re Jasmine and Elizabeth S.

IN RE JASMINE AND ELIZABETH S. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Respondent v. AUBREY S., Appellant C.A. 2nd, Div. 1, Nos. B110106/B111662 S065319 California Supreme Court Filed November 12, 1997
        The Reporter of Decisions is directed not to publish in the Official Appellate Reports the opinion in the above-entitled appeal filed September 8, 1997, which appears at 58 Cal.App.4th 30. (Cal. Const., art. VI, section 14, rule 976, Cal. Rules of Court.)


[Editor's Note - For Your convenience we reprint below the Daily Journal's Ruling Column brief which summarized the earlier decision of the lower court.]


JUVENILES

FAMILY LAW


Termination of Incarcerated Father's Parental Rights Is Error If No Reunification Services Offered.
        The C.A. 2nd has held that it was error to terminate an incarcerated father's parental rights because the Los Angeles County Department of Children and Family Services (DCFS) failed to provide adequate reunification services.
        Jasmine and Elizabeth S. were born on July 28, 1993 and Dec. 10, 1994, respectively. Elizabeth tested positive for cocaine at birth. Their mother was arrested on Jan. 24, 1995. The children were taken into protective custody because their father, Aubry S., was also incarcerated. Jasmine and Elizabeth were placed with a foster mother. DCFS filed a dependency petition for the minors. The children were found to be dependent at the disposition hearing and the juvenile court ordered reunification services for both parents. Aubry was offered no services while in prison. After being released, Aubry contacted DCFS and was told what he needed to do qualify for visitation. By the time he was told what he need to do in the way of complying with reunification services, DCFS was already prepared to recommend the children be adopted by their foster mother. In July 1986, the juvenile court found adequate reunification services had been provided to both parents and terminated the services. Aubry attempted to comply with the reunification order at his own expense. He enrolled in drug and parenting classes, obtained full-time employment and a fixed residence. Despite Aubry's efforts, the juvenile court terminated his and the mother's parental rights. Aubry filed a petition for writ of error coram vobis which was treated as a habeas corpus petition.
        The C.A. 2nd granted the writ. Aubry contended that his counsel was incompetent in failing to request additional reunification services. His attorney submitted a declaration stating he did not request services due to Aubry's incarceration. In fact, the law states that incarcerated parents are entitled to reunification services. "The department utterly failed to meet its own commitment of maintaining regular contact with Father. The sole communication which occurred during Father's incarceration was the December 1995 phone call made by Father." If Aubry's attorney had filed a Welfare and Institutions Code Section 39.1B petition for extension of reunification services, it would have been granted since Aubry had not received any services while incarcerated. "This is not a case where ordering additional services would appear, from the outset to be a futile act." Aubry completed almost all reunification requirements on his own. He would have completed them all if had he been told the parole drug testing program was insufficient to comply with the plan.
        In re Jasmine and Elizabeth S., C.A. 2nd, No. B110106/B111662, filed September 8, 1997, by Ortega, J.
        The full text of this case appears in 97 Daily Journal D.A.R. 12493, October 3, 1997.