Supreme Court of California Justia
Citation 45 Cal. 4th 1217, 203 P.3d 454, 91 Cal. Rptr. 3d 140

In re Nolan W.

Filed 3/30/09

IN THE SUPREME COURT OF CALIFORNIA

In re NOLAN W., a Minor,
S159524
on Habeas Corpus.
Ct.App. 4/1 D050408
San
Diego
County
Super. Ct. No. NJ13442
___________________________________ )

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
1


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 2131 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

1
All statutory references are to the Welfare and Institutions Code unless
otherwise specified.
2


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
3
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.2 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

2
When Mother’s counsel asked what this number was based on, the court
gave this explanation: “Sixty counts on basically [she had] never gone in other
than her first time when she was ordered to do six visits [sic] per week, test once a
week, and see her SARMS counselor. For all of those weeks it’s basically 15
counts for a two-week period.”
4


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
1998.3 SARMS is an intensive case management program operated by contract

3
Upon the Agency’s unopposed request, we take judicial notice of reports
prepared by the San Diego County Juvenile Court concerning implementation and
review of SARMS. The Agency has also asked us to take judicial notice of
documents relating to the Sacramento County Dependency Drug Court Program,
as well as two unpublished court decisions that refer to dependency drug courts in
Tuolumne and Del Norte Counties. Although they may be affected by our ruling,
the propriety of other counties’ programs is not before us, and their existence is
5


with an independent provider4 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

not relevant to the resolution of any legal issue presented here. We decline to take
judicial notice of these materials.
4
The provider in this case is Mental Health Systems, Inc. To avoid
confusion, we use the term “SARMS” to denote both the county agency that
administers SARMS and the case management program itself.
6


“ ‘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
7
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.”
(§ 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 child is a person described by Section 300.” We have held that this provision
authorizes the juvenile court to order that a parent undergo counseling as a
condition of visitation even after dependency proceedings have ended. (In re
Chantal S. (1996) 13 Cal.4th 196, 204.)
Of course, the juvenile court’s discretion in fashioning reunification orders
is not unfettered. Its orders must be “reasonable” and “designed to eliminate those
conditions that led to the court’s finding that the child is a person described by
Section 300.” (§ 362, subd. (c).) “The reunification plan ‘ “must be appropriate
for each family and be based on the unique facts relating to that family.” ’
8
[Citation.]” (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) Thus, in In
re Basilio T. (1992) 4 Cal.App.4th 155, 172-173, the court reversed a dispositional
order requiring substance abuse counseling because there was no evidence to
suggest either parent had a substance abuse problem. On the other hand, a
reunification order requiring submission to random drug and alcohol testing was
found to be appropriate in the case of a father who had a history of excessive
alcohol and drug use. (In re Christopher H., at pp. 1006-1008; see also Sara M. v.
Superior Court (2005) 36 Cal.4th 998, 1018 [requirement that mother be free of
drugs and alcohol during visitation was reasonable to protect the children’s well-
being].)
The Legislature has given juvenile courts broad discretion to fashion
reunification orders designed to address the problems that have led to a
dependency proceeding. Unfortunately, in a great many dependency cases,
parental substance abuse is one such problem. The juvenile court has authority to
require a parent to submit to substance abuse treatment as part of a reunification
plan as long as the treatment is designed to address a problem that prevents the
child’s safe return to parental custody. It is important to note that a parent may
choose to waive reunification services. (§ 361.5, subd. (b)(14).) But when a
parent accepts services, and when substance abuse treatment is reasonably related
to the minor’s welfare, the juvenile court has authority to order the parent to
participate. (§§ 361.5, subd. (a), 362.)
Here, no one disputes that the court appropriately ordered substance abuse
treatment as part of the reunification plan to which Mother agreed. Mother tested
positive for methamphetamine when her son was born, and she admitted that she
needed drug treatment. However, the parties interpret this order differently.
Whereas Mother views it as a condition of reunification, the Agency views it as a
command that, if disobeyed, may be punished by incarceration. The disagreement
thus concerns how a reunification order can be enforced.
9
III.
Use of Contempt Power to Enforce Reunification Orders
A notable feature of SARMS is its reliance on judicial officers to enforce
requirements by imposing increasingly severe sanctions for every “ ‘noncompliant
event.’ ” (Rule 6.1.19.) The San Diego County Superior Court’s form order
directing participation in SARMS identifies the following behavior as
sanctionable: “failure to timely enroll in the SARMS Program; a positive result
from an alcohol/drug test (‘dirty test’); failure to appear for a court hearing; failure
to appear for an alcohol/drug test (‘no show’); diluting or tampering with a urine
sample provided to SARMS for an alcohol/drug test; failure to participate in all
required SARMS and treatment program activities; failure to attend required
counseling sessions; failure to comply with the rules of the SARMS Recovery
Services Plan and treatment program; and/or a dishonest statement to the Court.”
(Form SDSC JUV-131.) The court’s local rules explicitly provide for
standardized 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 . . . .” (Rule 6.1.19.) Although the rules do not
dictate a specific punishment for such contempt findings, a report on the SARMS
program prepared by the San Diego County Juvenile Court indicates incarceration
is frequently imposed.
A.
The Contempt Power
It is well settled that the court has inherent power to enforce compliance
with its lawful orders through contempt. (Shillitani v. United States (1966) 384
U.S. 364, 370; In re Michael G. (1988) 44 Cal.3d 283, 288-289.) The Legislature
has recognized this power of the juvenile court in section 213, which states: “Any
willful disobedience or interference with any lawful order of the juvenile court or
of a judge or referee thereof constitutes a contempt of court.” (See In re Michael
G., at p. 289; In re Ricardo A. (1995) 32 Cal.App.4th 1190, 1196 [concluding,
based on Michael G., that juvenile court’s inherent contempt power is statutorily
implemented by § 213].)
10

However, not every violation of a court order is subject to punishment as a
contempt of court. The court’s traditional contempt power rests on “ ‘the premise
that the right of courts to conduct their business in an untrammeled way lies at the
foundation of our system of government and that courts necessarily must possess
the means of punishing for contempt when conduct tends directly to prevent the
discharge of their functions.’ (Wood v. Georgia (1962) 370 U.S. 375, 383.)” (In
re Michael G., supra, 44 Cal.3d at p. 288.) Based on this premise, we long ago
explained that contempt is an act, committed in or out of the court’s presence,
“which tends to impede, embarrass or obstruct the court in the discharge of its
duties.” (In re Shortridge (1893) 99 Cal. 526, 532.) The contempt power
represents “the inherent power of a trial court to exercise a reasonable control over
all proceedings connected with the litigation before it, a power which . . . ‘should
be exercised by the courts in order to insure the orderly administration of justice.’
[Citations.]” (Cooper v. Superior Court (1961) 55 Cal.2d 291, 301.) Contempt is
generally a summary procedure designed to protect the dignity of the court in the
exercise of its jurisdiction. (In re Buckley (1973) 10 Cal.3d 237, 247-248.)
The court’s power to compel compliance with its orders to ensure the
orderly administration of justice does not extend to punishing violations of
substantive law when such violations do not impair the dignity or functioning of
the court. When the Legislature has established a specific penalty for a
transgression, courts may not impose a contempt punishment that is inconsistent
with the legislative scheme. (Cf. In re Lynch (1972) 8 Cal.3d 410, 414 [“in our
tripartite system of government it is the function of the legislative branch to define
crimes and prescribe punishments, and . . . such questions are in the first instance
for the judgment of the Legislature alone”].) Violations of substantive law,
whether criminal or otherwise, must be adjudicated and punished in accordance
with the Legislature’s directives. As explained below (post, at pp. 14-18), the
legislative scheme involved here contemplates that the ultimate penalty for a
11
parent’s failure to satisfy reunification plan requirements is the loss of parental
rights.
B. Relevant
Case
Law
We previously addressed the juvenile court’s contempt power in the context
of delinquency proceedings. In In re Michael G., supra, 44 Cal.3d at pages 287
to 288, a minor who had been made a ward of the court under section 601,
subdivision (b), was ordered to attend school regularly as a condition of his
probation. After learning that the minor had several unexcused absences, the
juvenile court held a hearing, found the minor in contempt for willful disobedience
of the order to attend school, and ordered the minor confined for 48 hours in the
custody of the probation department. (In re Michael G., at p. 288.) Although we
upheld this exercise of contempt power (id. at pp. 294-295), the juvenile court’s
authority over a delinquent ward is quite different from its authority over the
parent of a dependent child. When a juvenile delinquency petition is sustained,
the court assumes jurisdiction over the minor and has the power to issue orders
controlling the minor’s conduct. (§§ 601, 602, subd. (a).) Likewise, in
dependency proceedings, the juvenile court’s jurisdiction is over the minor: It is
the abused or neglected minor who becomes a ward of the court, not the deficient
parent. (§§ 300, 302.) The juvenile court’s authority to control the behavior of a
parent in dependency proceedings is not direct, but rather ancillary to its
jurisdiction over the child. When the court orders a parent to participate in certain
services, compliance with the order is a condition the court has placed on the
parent’s reunification with the child. Accordingly, our decision in Michael G. is
not directly applicable here.5

5
Appellate decisions in the delinquency context have long held that the
juvenile court cannot use its contempt power to impose punishment beyond the
maximum penalty the Legislature has prescribed. (See In re Francisco S. (2000)
85 Cal.App.4th 946, 955-958 [juvenile court could not order confinement of
delinquent ward under § 213 when maximum penalty for his offense was a $250
fine]; In re Mary D. (1979) 95 Cal.App.3d 34, 38 [juvenile court could not use
12



No published decision from a California appellate court has explored the
extent of the juvenile court’s power to impose contempt sanctions as punishment
for a parent’s failure to comply with reunification orders. In the cases cited by the
Agency, most of the statements about the juvenile court’s ability to exercise
contempt power are dicta, and none addresses the use of contempt to enforce
reunification orders. (See In re Ashley M. (2003) 114 Cal.App.4th 1, 9, fn. 5
[suggesting contempt could be used to force an unwilling child welfare agency to
provide services]; In re Stacey T. (1997) 52 Cal.App.4th 1415, 1422, fn. 4
[suggesting parent’s failure to appear in court constitutes a contempt, not a
default]; In re Nemis M. (1996) 50 Cal.App.4th 1344, 1352 [same]; In re Tiffany
G. (1994) 29 Cal.App.4th 443, 452 [suggesting parent’s violation of a
confidentiality order could be punished as a contempt].)6 Nationwide, the Agency
has directed us to only one case suggesting the juvenile court may use contempt
power to enforce reunification orders, and that decision rests on Louisiana statutes
that have no apparent California counterpart. (See State in the Interest of
Anderson (La.Ct.App. 1989) 550 So.2d 192, 194-196 [holding juvenile court may
use contempt to enforce orders directing a parent into drug counseling and

criminal contempt (Pen. Code, § 166) to impose confinement time on a § 602 ward
for noncriminal conduct that was a violation of probation]; see also In re Ronald S.
(1977) 69 Cal.App.3d 866, 873-874 [juvenile court may not use criminal contempt
sanction to elevate a § 601 ward to a delinquent wardship under § 602]; but see In
re Michael G.
, supra, 44 Cal.3d at pp. 294-295 [contempt sanction may be
imposed if it does not alter the status of the ward].) Even in Michael G., we
remained sensitive to the surrounding legislative scheme. Conscious of the
Legislature’s intent not to institutionalize section 601 wards, we stressed that
courts should exercise caution before ordering such a ward into custody for a
contemptuous act, and we imposed specific limitations on the juvenile court’s
contempt power in an effort to harmonize this potential punishment with
legislative intent. (In re Michael G., at pp. 296-300.)
6
We do not foreclose the possibility that contempt orders may be
appropriately issued in dependency proceedings under other circumstances.
13


psychological testing but only after it has adjudicated her a parent “ ‘in need of
supervision’ ” pursuant to a specific statutory procedure].)
The lack of pertinent authority matters because reunification orders are
unlike orders in other types of civil cases. When a juvenile court orders a parent
to comply with a reunification case plan, it directs the parent to do and refrain
from doing many things, often of a highly personal nature. These reunification
orders are not limited to controlling the conduct of litigation or the parties’
behavior in court. Reunification orders also differ from court orders in criminal
cases. Reunification orders may resemble criminal probation orders in the scope
of conduct they regulate, but, unlike probationers, parents of dependent children
are not subject to the court’s jurisdiction because they have been convicted of a
crime. Instead, they agree to a reunification plan to avoid losing custody of their
children. Further, if a criminal defendant fails to comply with a probation
condition, any penalty is imposed following a hearing on the alleged violation, not
by a summary contempt proceeding. In the dependency context, the juvenile court
intervenes to protect a child, not to punish the parent. (In re Malinda S. (1990) 51
Cal.3d 368, 384.) The statutory scheme is designed to permit the parent to remedy
a deleterious situation and resume parental rights and responsibilities.
C. The
Statutory
Scheme
Governing Reunification
1.
Participation
Is
Voluntary
To the extent reunification orders intrude upon a parent’s liberty, the
Legislature has determined these intrusions are justified by the need to protect
children and enable their safe return to competent parental care whenever possible.
However, it is not the court’s role to force a parent to participate in services. “It is
. . . well established that ‘[r]eunification services are voluntary, and cannot be
forced on an unwilling or indifferent parent. [Citation.]’ (In re Jonathan R.
(1989) 211 Cal.App.3d 1214, 1220.)” (In re Christina L. (1992) 3 Cal.App.4th
404, 414; see also In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5 [there
is no “requirement that a social worker take the parent by the hand and escort him
14
or her to and through classes or counseling sessions”].) Section 361.5, subdivision
(b)(14) explicitly states that reunification services need not be provided to a parent
who wishes to forgo them.7 This rule makes sense. While reunification is the
preferred outcome when it serves the interests of both parent and child, no interest
is well served by compelling inadequate parents to shoulder responsibilities they
are unwilling to accept or unable to discharge.
Nevertheless, the Agency contends a parent’s participation in reunification
services becomes mandatory if services are ordered at the dispositional hearing.
In other words, according to the Agency, once services are ordered a parent cannot
change her mind. She must participate, or risk a contempt order and possible
incarceration. The Agency cites no support for this argument beyond the
statement in section 361.5, subdivision (a) that, “[w]hen counseling or other
treatment services are ordered, the parent . . . shall be ordered to participate in
those services . . . .” (Italics added.) The Agency contends this requirement that
parental participation be “ordered,” combined with the court’s power to enforce its
orders with contempt proceedings (§ 213), indicates the Legislature intended to
enable the juvenile court to use contempt sanctions to secure compliance with its
reunification orders.
We decline to adopt this novel reading of the statutes. By providing that a
parent “shall be ordered to participate” in services, section 361.5, subdivision (a)
imposes a duty on the juvenile court to order participation as part of the parent’s
reunification plan unless the court finds such participation would be inappropriate

7
For the waiver to be valid, the parent must execute an express waiver of
services while represented by counsel, and the court must find the waiver to be
knowing and intelligent. (§ 361.5, subd. (b)(14).) These procedural requirements
ensure that parents understand the potentially grave consequences of their failure
to participate in services. (See Cynthia C. v. Superior Court (1999) 72
Cal.App.4th 1196, 1200-1201; see also Arlena M. v. Superior Court (2004) 121
Cal.App.4th 566, 571.) Before section 361.5, subdivision (b)(14) was enacted,
parents could implicitly waive services by declining to seek custody. (See In re
Terry H.
(1994) 27 Cal.App.4th 1847.)
15


or potentially harmful to the minor. This language in itself does not impose a
mandatory duty on the parent to participate in services.
2.
Consequences of Failure to Participate
In considering the nature of a parent’s obligation to comply with
reunification orders, it is important to examine what sanctions or punishment the
Legislature has specified for noncompliance. Section 361.5 itself provides that,
with respect to a dependent child under age three at the time of detention, the court
must inform the parent that “failure . . . to participate regularly in any court-
ordered treatment programs or to cooperate or avail himself or herself of services
provided as part of the child welfare services case plan may result in a termination
of efforts to reunify the family after six months.” (§ 361.5, subd. (a).) At the
same time, the court must inform parents about section 366.26 and the specific
possibility that parental rights may be terminated. (§ 361.5, subd. (a).) These
prescribed warnings do not include the possibility of being held in contempt of
court, and punished by fine or incarceration, for failure to participate in services.
Indeed, this possibility is not mentioned in any of the numerous statutorily
required advisements.
Given the complexity of the statutory scheme governing dependency, a
single provision “cannot properly be understood except in the context of the entire
dependency process of which it is part.” (Cynthia D. v. Superior Court (1993) 5
Cal.4th 242, 253.) Other dependency statutes indicate the Legislature envisions
the punishment for noncompliance with reunification services to be loss of those
services and, ultimately, loss of parental rights. For example, at the six-month
review hearing, the juvenile court must decide whether return of a dependent child
to the parent would be detrimental to the child. Section 366.21, subdivision (e)
requires the court, in making this decision, to “consider the efforts or progress, or
both, demonstrated by the parent . . . and the extent to which he or she availed
himself or herself [of] services provided,” and it specifies that “failure of the
parent or legal guardian to participate regularly and make substantive progress in
16
court-ordered treatment programs shall be prima facie evidence that return would
be detrimental.” Likewise, a parent’s failure to progress in treatment constitutes
evidence of detriment at the 12-month (§ 366.21, subd. (f)) and 18-month
(§ 366.22, subd. (a)) review hearings. Additionally, if the child was under age
three when removed from custody (or part of a sibling group with a child under
age three), a finding at the six-month review hearing that the parent failed “to
participate regularly and make substantive progress in a court-ordered treatment
plan” can result in the termination of services at that point and scheduling of a
section 366.26 permanency planning hearing. (§ 366.21, subd. (e).)
These findings are critical. Once services have been terminated, the
juvenile court’s focus shifts from family reunification to the child’s permanent
placement and well-being, and the burden accordingly shifts to the parent to show
that a termination of parental rights is not in the child’s best interests. (In re
Marilyn H. (1993) 5 Cal.4th 295, 306-307, 309; In re Zachary G. (1999) 77
Cal.App.4th 799, 808.) A parent may regain custody after reunification services
have been terminated only by showing that changed circumstances demonstrate a
return to parental custody is in the child’s best interests. (§ 388; In re Marilyn H.,
at p. 309; In re Kimberly F. (1997) 56 Cal.App.4th 519, 528-529.) This burden
may be especially difficult to sustain for a parent who failed to continue with
substance abuse treatment during the reunification period. (See In re Kimberly F.,
at p. 531, fn. 9.)
Thus, the dependency statutes repeatedly make clear that the consequence
of failure to participate in court-ordered reunification services is the loss of
parental rights. The Agency has not called our attention to a single California
statute or judicial decision approving the notion that juvenile courts may force
compliance with reunification orders by punishing parental lapses with contempt
proceedings and incarceration. Although the Agency suggests the threat of
17
incarceration offers a useful strategy for preventing substance abuse relapses,8 its
reasoning could just as logically be applied to other aspects of a parent’s case plan.
For example, parents are often ordered to adhere to a certain visitation schedule.
Under the Agency’s analysis, a parent who misses a visit could be held in
contempt of court and fined, or incarcerated. Setting aside the question of whether
such a sanction would be excessive, it seems clearly inconsistent with the statutory
scheme governing reunification.9
D.
Use of Contempt to Punish Noncompliance with SARMS
Downplaying the punitive nature of incarceration, the Agency seeks to
characterize the sanctions imposed for noncompliance with SARMS as civil
contempt. Its argument overlooks the distinctions long recognized between civil
and criminal contempt. “Where the primary object of contempt proceedings is to
protect the rights of litigants, the proceedings are regarded as civil in character.
On the other hand, where the object of the proceedings is to vindicate the dignity
or authority of the court, they are regarded as criminal in character even though
they arise from, or are ancillary to, a civil action. [Citation.]” (Morelli v. Superior
Court (1969) 1 Cal.3d 328, 333.) Civil contempt is a forward-looking remedy

8
The Agency describes these contempt orders as “ ‘therapeutic
incarceration’ ” and asserts: “Sometimes it takes a caring consequence, such as
court ordered incarceration, to get the parent’s attention in a way that enables the
parent to hit their own personal rock bottom and become aware of the need to
comply with the court’s orders for treatment so reunification with their child can
be achieved.” However, the Agency has offered no empirical support for the
proposition that the threat of parental incarceration encourages higher
reunification rates. Even if there were such data, the appropriate body to consider
whether to modify the family reunification process by incorporating contempt
sanctions and parental incarceration is the Legislature.
9
We consider here only the purely punitive sanctions of a jail sentence or
fine, summarily imposed on a finding of contempt. Certainly, if a court concludes
that a parent is not complying with reunification services it may extend the scope
of services and supervision to secure compliance. For example, it may increase
the frequency of reporting or testing, or require additional counseling or therapy.
18


imposed to coerce compliance with a lawful order of the court. (Shillitani v.
United States, supra, 384 U.S. at p. 368.) Civil contemnors hold the key to the jail
cell in their own pocket, and can secure their release at any time by following the
court’s order. (In re Lifschutz (1970) 2 Cal.3d 415, 439, fn. 27; Morelli, at p. 332
[basis for civil contempt is “the omission to perform an act which is still within the
person’s power to perform”]; see Code Civ. Proc., § 1219, subd. (a).) Because the
confinement imposed for civil contempt is conditional in nature, based on
continuing conduct, the length of incarceration is indefinite, depending “entirely
upon the contemnor’s continued defiance.” (Shillitani, at p. 371.) On the other
hand, so long as specific procedures are observed to safeguard due process,
criminal contempt may be used to punish past conduct in violation of a court
order. (See Code Civ. Proc., §§ 1209, 1218; see also Cal. Judges Benchguide:
Courtroom Control (CJER 2008) Contempt and Sanctions, §§ 3.33-3.49
[describing required procedures for exercise of contempt power].) The object of
such proceedings “is to vindicate the dignity or authority of the court.” (Morelli,
at p. 333.)
All parties appear to agree that the contempt order in this case was purely
punitive. The juvenile court sentenced Mother to 300 days in custody because she
“broke her promise” to enter treatment. Reunification services had already been
terminated and Mother had been ejected from the SARMS program. The
contempt order here cannot be construed as civil in nature.
The Agency would have us look beyond the facts of this case, however,
arguing that the contempt orders typically made to enforce SARMS compliance
are civil in nature. The assertion fails. The fact remains that contempt orders in
this context are punitive in purpose and effect. After a reprimand for the first
violation, the San Diego County Court’s local rules mandate that the court issue
contempt citations for every incidence of a parent’s noncompliance with SARMS.
(Rule 6.1.19.) Although the court retains discretion to set the particular fine or
sentence for each contempt citation (ibid.), in all such cases the punishment will
19
be based on the parent’s past conduct and imposed for a set period of time. There
is nothing a parent who has been incarcerated for a “ ‘noncompliant event’ ” (Rule
6.1.19) can do or say to purge the contempt. The mere fact that a contempt order
has been made in the course of civil proceedings does not render it a civil
contempt. (See Shillitani v. United States, supra, 384 U.S. at p. 369 [character and
purpose of the contempt order are what determine whether it is civil or criminal].)
When a SARMS contempt order is based on completed conduct, and cannot be
purged or cured by the parent, the sanctions imposed are criminal in nature.
Although SARMS contempt orders might be characterized as efforts to secure
future parental compliance with reunification orders, the sanctions have this effect
only in the general sense that all punishment can have a deterrent effect.
Certainly, if a court finds a tardy litigant in contempt and orders him jailed for a
day, the order will encourage the litigant to appear on time for his next hearing.
But this deterrence of future tardiness does not render the original contempt order
civil in nature. Because it punishes past, rather than ongoing, conduct, the order
constitutes a criminal contempt. The same is true here.
The routine imposition of criminal contempt sanctions for noncompliance
with SARMS underscores the troubling aspect of injecting punitive measures into
reunification. Dependency proceedings are not designed to prosecute parents. (In
re Malinda S., supra, 51 Cal.3d at p. 384; In re Walter E. (1992) 13 Cal.App.4th
125, 137-138.) In a dependency proceeding, the state is empowered to intervene
because a parent’s inadequacy puts a child at risk. Parents who fail or refuse to
meet their parental obligations face the profound loss of a relationship with their
child. Parents who break the law are subject to criminal prosecution, but they are
also entitled to the panoply of rights and protections provided by Constitution and
statute to those who stand accused of a crime.
E. Conclusion
Rule 6.1.19 of the San Diego County Superior Court Local Rules is
disapproved to the extent that it calls for imposition of a fine or jail sentence under
20
the mechanism of contempt solely for the purpose of punishing a parent’s failure
to comply with a condition of a reunification case plan. We emphasize that our
decision here is not intended to strip the juvenile court of its well-established
contempt authority to control the proceedings before it and protect the dignity of
its exercise of jurisdiction. (In re Buckley, supra, 10 Cal.3d at pp. 247-248.)
Extreme parental misconduct that jeopardizes the child’s safety, such as taking the
child without permission or engaging in dangerous acts during visitation, could
well justify punishment by contempt because such conduct interferes with the
court’s exercise of its own authority over the dependent child. Our holding in this
case is limited to the use of contempt power to punish a parent’s failure to satisfy a
condition imposed simply to facilitate reunification. We express no opinion on the
propriety of contempt sanctions in other circumstances.
DISPOSITION
The judgment of the Court of Appeal is affirmed.
CORRIGAN, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
21


CONCURRING AND DISSENTING OPINION BY BAXTER, J.

I agree with the majority insofar as it affirms the Court of Appeal’s
decision to annul the contempt judgment entered against Mother in the juvenile
court. However, I do so for reasons invoked not by the majority itself, but by the
Court of Appeal, namely, that use of the contempt power under the particular facts
of this case constituted a clear abuse of discretion. Mother’s noncompliance with
the reunification plan led to her ejection from the substance abuse recovery
program in which she was ordered to participate, the termination of reunification
services which the juvenile court was required to provide and which Mother never
duly waived, and the scheduling of permanency planning proceedings necessary to
terminate her parental rights. Once this chain of events occurred, the juvenile
court had no discretion to use the sanction of contempt — here, a hefty term of
300 days in jail — purely as after-the-fact punishment for failing to follow orders
whose sole purpose was the retention of parental rights. As evidenced by the
Court of Appeal’s opinion, no more needs to be said to resolve this case.
I respectfully disagree with the majority’s broader rationale and conclusion
that the contempt power is never available to enforce lawful orders routinely
directed at parents in the course of the reunification process before those services
have been terminated. Until today’s ruling, it appears juvenile courts had
authority to at least sparingly order modest fines and/or brief stints in custody —
not to punish past failures to comply with the conditions of reunification — but to
1


encourage wavering parents who have not spurned the statutory process
altogether, and who have submitted to the court’s jurisdiction, to abide by their
continuing duty to undergo substance abuse treatment ordered to help the family
reunite. Today’s contrary holding, which gives juvenile courts no ability to
enforce their orders other than by permanently terminating the rights of such
parents, seems at odds with the statutory scheme, which seeks to restore functional
families whenever possible. The majority’s decision will likely come as a surprise
to juvenile courts statewide, whose inherent and statutory powers of enforcement
are now diminished, and to the Legislature, whose statute authorizing contempt in
dependency cases has now been judicially curtailed. My reasoning is as follows.
The juvenile court is a department of the superior court specially authorized
to administer the Arnold-Kennick Juvenile Court Law, including the dependency
scheme. (See Welf. & Inst. Code, §§ 200, 245; In re Ashley M. (2003) 114
Cal.App.4th 1, 6-7.)1 As relevant here, the juvenile court is required, upon
removing a dependent child from parental custody (see §§ 300, 355, 361, subd.
(c)), to order that social welfare services be provided to parent and child, and that
parents who wish to retain their parental rights participate in those services.
(§ 361.5, subd. (a); see Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 247-
248.) Various provisions give the juvenile court power to compel parental
participation in this regard unless the parents have made clear, by the means set
forth in the statute, that they wish to forgo reunification.
As noted by the majority, such compulsion of a participating parent comes
in the form of “orders” designed to eliminate the substance abuse or other
problems that caused the child to be adjudged a dependent of the court and

1
All further statutory references are to the Welfare and Institutions Code
unless otherwise stated.
2


removed from parental custody in the first place. (Maj. opn., ante, at pp. 2, 9.)
Thus, section 362, subdivision (c) contemplates the issuance of “any and all
reasonable orders to the parents” of the dependent child as the court “deems
necessary and proper” for treatment, counseling, and educational purposes.
Another provision, section 245.5, allows the juvenile court to “direct all such
orders to the parent [or] parents” that best provide for the care, custody, and
support of the children under its jurisdiction.
Of course, reunification services need not be provided to a parent who does
not wish to maintain the family unit, and who makes an informed decision to
reject them. As noted by the majority, section 361.5, subdivision (b)(14) allows
the parent to “waive[ ]” such services, where the waiver is expressed in writing,
executed while the parent is represented by counsel, and accompanied by an
advisement of the possible consequences, including the termination of parental
rights and placement of the dependent child for adoption. (See maj. opn., ante, at
pp. 9, 14-15 & fn. 7; see also § 360, subd. (a) [parental decision to forgo
reunification may lead to establishment of legal guardianship].) Nothing in the
statutory scheme or the majority opinion suggests there are any limits on the time
for waiving reunification services and relinquishing the parental role. (See § 361,
subd. (b) [parent may “voluntarily relinquish” dependent child to state welfare or
county adoption agency “at any time”].) The Legislature has thus ensured that the
most deficient and reluctant parents are not forced to undergo or continue
reunification against their will.
On the other hand, contrary to what the majority implies, nothing in the
statutory scheme purports to limit the manner in which the juvenile court may
compel parents who have chosen to accept reunification services to comply with
orders directing their participation in the plan, including substance abuse recovery
programs. Nor does the majority cite any statute that treats the juvenile court
3
differently from other departments of the superior court with respect to the
enforcement of such orders. In fact, the opposite seems to be true.
We have said that the contempt power is inherent in, and necessarily
incidental to, the powers conferred on all courts to perform their duties and to
maintain order and dignity in the process. (In re Buckley (1973) 10 Cal.3d 237,
247-248.) Contempt may be used judiciously (see Furey v. Commission on
Judicial Performance (1987) 43 Cal.3d 1297, 1314) to convince someone who has
disobeyed a court order, but who is still in a position to comply, that he or she
should now “do what he [or she] was ordered to do.” (In re Jackson (1985) 170
Cal.App.3d 773, 782.) While such power exists “independent” of statute (In re
Michael G. (1988) 44 Cal.3d 283, 289), the Legislature has seen fit to codify and
define it in certain respects. (See, e.g., Code Civ. Proc., § 1209, et seq.)
Critical here is section 213. It states that “[a]ny willful disobedience or
interference with any lawful order of the juvenile court or of a judge or referee
thereof constitutes a contempt of court.” (See Code Civ. Proc., § 1218, subd. (a)
[specifying fines not exceeding $1,000 or incarceration not exceeding five days, or
both].) Section 213 works in conjunction with the traditional power of the
juvenile court to ensure that “any” lawful order is discharged. (See In re Michael
G., supra, 44 Cal.3d 283, 288-289 & fn. 3.)
The majority insists, however, that the Legislature has implicitly deprived
the juvenile court of both its inherent and statutory authority to hold parents of
dependent children in contempt for violating lawful orders to undergo substance
abuse treatment and to participate in other programs that are part of an ongoing
reunification plan. The proffered reasoning is unclear and unpersuasive.
On the one hand, the majority acknowledges that juvenile courts may
employ contempt where necessary and proper to do so in a wide array of
dependency settings. (See maj. opn., ante, at pp. 13-14 & fn. 6.) Such situations
4
arise where child welfare agencies are unwilling to provide reunification services
ordered by the court (In re Ashley M., supra, 114 Cal.App.4th 1, 9-10 & fn. 5), or
where counsel, through words or acts, impugns the integrity of the court. (See
§§ 317-317.6 [appointment of counsel for parent and dependent child]; In re White
(2004) 121 Cal.App.4th 1453, 1477-1478 [examples of contemptuous behavior by
counsel].) The majority opinion itself cites additional instances in which the
parents failure to follow dependency orders may warrant a contempt finding.
(Maj. opn., ante, at p. 13, citing In re Nemis M. (1996) 50 Cal.App.4th 1344,
1351-1352 [failure to appear at jurisdictional hearing]; In re Tiffany G. (1994) 29
Cal.App.4th 443, 448, 451-452 [violation of confidentiality order].) These
instances include conduct that jeopardizes the physical safety of the dependent
child with whom the parent is attempting to reunify. (Maj. opn., ante, at p. 21.)
On the other hand, the majority insists the juvenile court lacks power to
hold a parent in contempt for failing to undergo substance abuse treatment or to
participate in other reunification services ordered to ensure that the process will
succeed. This, the majority asserts, is because of the “unique” (see maj. opn.,
ante, at p. 3) and “voluntary” nature of parental participation in reunification
plans. (Maj. opn., ante, at pp. 3, 14.) The majority also suggests that contempt is
inherently punitive, and thus inconsistent with such a permissive scheme. (See
maj. opn., ante, at pp. 10-14.)
I disagree with this reasoning. Once the parent voluntarily decides to
accept reunification services, and thereby to submit to the jurisdiction of the
juvenile court, he or she has, as a necessary consequence, agreed to submit to all
lawful orders of the court. As noted, the statutory scheme sets forth various
circumstances under which parents must comply with such orders, and does not
explicitly exempt them from the contempt power expressed in section 213. If the
parent decides either at the start or in the midst of the process that he or she does
5
not wish to participate, the statutory procedures for opting out of reunification may
be invoked at that time. What the parent is not free to do is remain in the system
while making a mockery of the court’s authority and disobeying its orders without
any threat of contempt.
Finally, it seems shortsighted as a policy matter to withhold contempt as a
means of enforcing parental compliance with reunification orders. The majority
leaves no doubt that, in its view, the only sanction (i.e., “punishment”) for
noncompliance with reunification orders is the “loss of those services and,
ultimately, loss of parental rights.” (Maj. opn., ante, at p. 17.) Certainly, such a
drastic outcome is authorized where, notwithstanding the provision of
reunification services as required by statute, the evidence shows, and the court
finds, that the parent has failed to participate regularly and/or make substantive
progress, and that return of the dependent child to the parent would be detrimental
to the child. (See, e.g., §§ 366.21, subds. (e) [six-month review hearing] & (f)
[12-month permanency hearing], 366.22, subd. (a) [18-month permanency review
hearing], 366.26 [hearing terminating parental rights]; see also Cynthia D. v.
Superior Court, supra, 5 Cal.4th 242, 249-250.)
However, for reasons I have described, I seriously doubt that the
Legislature intended the termination of reunification services and parental rights,
and permanent removal of the child from parental custody, to be the first, last, and
sole resort of the juvenile courts with respect to parents who willfully fail to
participate in court-ordered programs. As the majority concedes, safeguarding the
child and preserving family relationships are the main goals of the dependency
scheme. (Maj. opn., ante, at p. 7.) As in other situations in which parents violate
dependency orders, the Legislature has embraced the juvenile court’s authority to
threaten contempt to emphasize the seriousness of the reunification process and
give parents every opportunity and incentive to comply.
6
At bottom, it seems inconsistent to conclude that the juvenile court has the
power to compel a parent to participate in reunification, but that the court’s only
recourse in the event of parental nonparticipation is to order an end to
reunification services and terminate the parent-child relationship. I doubt that is
what the Legislature intended.
BAXTER, J.
7

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Nolan W.
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 156 Cal.App.4th 1499
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S159524
Date Filed: March 30, 2009
__________________________________________________________________________________

Court:

Superior
County: San Diego
Judge: Harry Mark Elias

__________________________________________________________________________________

Attorneys for Appellant:

Kathleen Murphy Mallinger, under appointment by the Supreme Court, for Petitioner Kayla W.

__________________________________________________________________________________

Attorneys for Respondent:



John J. Sansone, County Counsel, John E. Philips, Chief Deputy County Counsel, Gary C. Seiser and Lisa
M. Maldonado, Deputy County Counsel, for Respondent San Diego County Health and Human Services
Agency.

Douglas B. Marlowe, Carson L. Fox, Jr.; Charles A. Murray; Law Office of William E. O’Nell and
William E. O’Nell for National Association of Drug Court Professionals and California Association of
Drug Court Professionals as Amici Curiae on behalf of Respondent San Diego County Health and Human
Services Agency.

Julie E. Braden, under appointment by the Supreme Court, for Minor Nolan W.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Kathleen Murphy Mallinger
P.O. Box 22566
San Diego, CA 92192-2566
(858) 587-2564

Lisa M. Maldonado
Deputy County Counsel
4955 Mercury Street
San Diego, CA 92111-1703
(858) 492-2500

Julie E. Braden
1762 Columbia Street
San Diego, CA 92101
(619) 234-2266


Petition for review after the Court of Appeal annulled a judgment of contempt in a dependency proceeding. The court limited review to the following issues: (1) Did the juvenile court have the authority to order 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 authorize the juvenile court to hold the minor's mother in contempt and incarcerate her for failing to comply with that component of the reunification plan?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Mon, 03/30/200945 Cal. 4th 1217, 203 P.3d 454, 91 Cal. Rptr. 3d 140S159524Review - Civil Original Proceedingclosed; remittitur issued

203 P.3d 454
91 Cal.Rptr.3d 140


Parties
1W., Kayla (Petitioner)
Represented by Kathleen Murphy Mallinger
Attorney at Law
P.O. Box 22566
San Diego, CA

2W., Kayla (Petitioner)
Represented by Appellate Defenders, Inc.
555 W. Beech Street, Suite 300
555 W. Beech Street, Suite 300
San Diego, CA

3W., Nolan (Non-Title Respondent)
Represented by Julie Braden
Attorney at Law
1762 Columbia Street
San Diego, CA

4San Diego County Health & Human Services Agency (Non-Title Respondent)
Represented by John Eduard Philips
Ofc of County Counsel
4955 Mercury St
San Diego, CA

5San Diego County Health & Human Services Agency (Non-Title Respondent)
Represented by Lisa Marie Maldonado
Office of the County Counsel
325 S. Melrose Drive, Suite 131
Vista, CA

6San Diego County Health & Human Services Agency (Non-Title Respondent)
Represented by John J. Sansone
Office of the County Counsel
355 County Administration Center
San Diego, CA

7San Diego County Health & Human Services Agency (Non-Title Respondent)
Represented by Gary C. Seiser
Office of the County Counsel
4955 Mercury Street
San Diego, CA

8California Association Of Drug Court Professionals (Amicus curiae)
Represented by Charles Alan Murray
California Association of Drug Court Professionals
P.O. Box 1089
San Leandro, CA

9California Association Of Drug Court Professionals (Amicus curiae)
Represented by William Earl O'Nell
Law Office of William E. O'Nell
101 West Broadway, Suite 810
San Diego, CA

10National Association Of Drug Court Professionals (Amicus curiae)
Represented by Douglas B. Marlowe
National Association of Drug Court Professionals
4900 Seminary Road, Suite 320
Alexandria, VA

11National Association Of Drug Court Professionals (Amicus curiae)
Represented by Carson Fox
National Association of Drug Court Professionals
4900 Seminary Road, Suite 320
Alexandria, VA


Opinion Authors
OpinionJustice Carol A. Corrigan
ConcurJustice Marvin R. Baxter
DissentJustice Marvin R. Baxter

Disposition
Mar 30 2009Opinion: Affirmed

Dockets
Dec 28 2007Petition for review filed
  Kayla W., petitioner by Kathleen Murphy Mallinger, counsel
Dec 28 2007Received Court of Appeal record
  1 doghouse
Feb 13 2008Petition for review granted; issues limited (civil case)
  The petition for review is granted. The issues to be briefed and argued are limited to the following: (1) Did the juvenile court have the authority to order 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 authorize the juvenile court to hold her in contempt and incarcerate her for failing to comply with that component of the reunification plan? Votes: George, C.J., Kennard, Werdegar, Moreno, and Corrigan, JJ.
Feb 19 2008Change of contact information filed for:
  counsel for petitioner Kayla W.
Mar 4 2008Counsel appointment order filed
  Upon request of appellant Kayla W. for appointment of counsel, Kathleen Murphy Mallinger is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before 30 days from the date of this order. Your attention is directed to California Rules of Court, rule 8.520, for the briefing requirements. Please note also that, because this is a child dependency case, the court may grant an extension of time only on "an exceptional showing of good cause." (Code Civ. Proc., #45; Cal. Rules of Court, rule 8.454.)
Mar 4 2008Counsel appointment order filed
  Upon request of minor for appointment of counsel, Julie Braden is hereby appointed to represent minor on the appeal now pending in this court.
Apr 3 2008Request for extension of time filed
  For petitioner Kayla W. to file the opening brief on the merits, to May 2, 2008.
Apr 8 2008Extension of time granted
  On application of petitioner Kayka W. and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including May 2, 2008.
May 5 2008Opening brief on the merits filed
  Kayla W., petitioner, - CRC 8.25(b) by Kathleen Murphy Mallinger, Counsel
May 9 2008Motion filed (non-AA)
  Motion of respondent to strike petitioner's brief on the merits as defective, filed by Lisa M. Madonado, Senior Deputy County Counsel
May 9 2008Request for extension of time filed
  Respondents request a 20 day extension of time to filed the answer brief on the merits.
May 15 2008Filed:
  Resubmitted Real Party in Interest's Motion to Strike Petitioners' Opening Brief on the Merits, by Lisa Maldonado, Senior Deputy of San Diego County Counsel
May 19 2008Opposition filed
  to RPI's motion to strike petitioner's brief on the merits Kayla W., petitioner Kathleen Mallinger, counsel
Jun 3 2008Extension of time granted
  On application of respondent, and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including July 7, 2008.
Jun 5 2008Answer brief on the merits filed
  Nolan W., a minor Julie Braden, counsel
Jun 11 2008Order filed
  Real party in interest San Diego County Health and Human Services Agency has filed a motion to strike petitioner's opening brief on the merits. Upon due consideration, the motion is denied.
Jul 7 2008Request for extension of time filed
  for RPI San Diego County Health & Human Services Agency to file the answer brief on the merits, to July 16.
Jul 10 2008Compensation awarded counsel
  Atty Mallinger
Jul 15 2008Extension of time granted
  On application of Real Party in Interest and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including July 16, 2008. No further extensions of time are contemplated.
Jul 16 2008Application to file over-length brief filed
  with oversized brief. RPI's answer brief on the merits
Jul 16 2008Request for judicial notice filed (granted case)
  "of facts not reasonably subject to dispute" San Diego County Health & Human Services Agency, RPI Lisa Maldonado, counsel
Jul 16 2008Request for judicial notice filed (granted case)
  "of documents from the juvenile court file, etc." San Diego County Health & Human services Agency, RPI Lisa Maldonado, counsel
Jul 23 2008Application to file over-length brief granted
  RPI's answer brief on the merits
Jul 23 2008Answer brief on the merits filed
  San Diego County Health and Human Services Agency, RPI Lisa Maldonado, Senior Deputy County Counsel (filed with permission)
Jul 28 2008Opposition filed
  to request for judicial notice. Kayla W., petitioner Kathleen Mallinger, counsel
Aug 11 2008Request for extension of time filed
  for appellant Kayla W. to file the reply brief on the merits, to 8-22-08.
Aug 15 2008Extension of time granted
  On application of appellant Kayla W. and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including August 22, 2008. No further extensions of time are contemplated.
Aug 25 2008Reply brief filed (case fully briefed)
  Kayla W., petitioner by Kathleen Murphy Mallinger, counsel crc.8.25(b)
Sep 17 2008Received application to file Amicus Curiae Brief
  National Association, and Calif. Assoc., of Drug Court Professionals ; in support of RPI William O'Neill, Charles Murray, counsel
Sep 17 2008Application to appear as counsel pro hac vice (granted case)
  Douglas Marlowe and CarsonFox, Jr. for amici curiae
Oct 10 2008Permission to file amicus curiae brief granted
  The application of the National Association of Drug Court Professionals and California Association of Drug Court Professionals for permission to file an amicus curiae brief in support of real party in interest is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Oct 10 2008Amicus curiae brief filed
  by National Association of Drug Court Professionals and California Association of Drug Court Professionals in support of real party in interest. William O'Neill, Charles Murray, Douglas Marlowe, Carson Fox, counsel
Oct 10 2008Application to appear as counsel pro hac vice granted
  The application of Douglas B. Marlowe and Carson L. Fox, Jr. of Virginia for admission pro hac vice to appear on behalf of amici curiae National Association of Drug Court Professionals and California Association of Drug Court Professionals is hereby granted. (See Cal. Rules of Court, rule 9.40.)
Oct 30 2008Response to amicus curiae brief filed
  Kayla W., appellant Kathleen Mallinger, counsel
Dec 10 2008Case ordered on calendar
  to be argued on Wednesday, January 7, 2009, at 9:00 a.m., in San Francisco
Dec 23 2008Filed:
  Letter from Kathleen Mallinger, counsel for petitioner Kayla W., requesting to share 10 minutes of argument time with minor.
Dec 24 2008Order filed
  The request of counsel for petitioner in the above-referenced cause to allow two counsel to argue on behalf of petitioner at oral argument is hereby granted. The request of petitioner to allocate to respondent minor Nolan W. 10 minutes of petitioner's 30-minute allotted time for oral argument is granted.
Jan 7 2009Cause argued and submitted
 
Mar 30 2009Notice of forthcoming opinion posted
 
Mar 30 2009Opinion filed: Judgment affirmed in full
  Majority Opinon by Corrigan, J. ----- Joined by George, C, J., Kennard, Werdegar, Chin and Moreno, JJ. Concurring and Dissenting Opinion by Baxter, J.
Apr 13 2009Request for modification of opinion filed
  Kayla W., petitioner Kathleen Murphy Mallinger, counsel
Apr 14 2009Request for modification of opinion filed
  San Diego Health & Human Services, RPI John E. Philips, Chief DeputyCounty Counsel
Apr 29 2009Request for modification denied
 
Apr 30 2009Remittitur issued
 
Jul 22 2009Compensation awarded counsel
  Atty Mallinger

Briefs
May 5 2008Opening brief on the merits filed
 
Jun 5 2008Answer brief on the merits filed
 
Jul 23 2008Answer brief on the merits filed
 
Aug 25 2008Reply brief filed (case fully briefed)
 
Oct 10 2008Amicus curiae brief filed
 
Oct 30 2008Response to amicus curiae brief filed
 
Brief Downloads
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Appellate Petition, Motion and Filing - Petition for Review, 12:28:2007 (2007 WL 5029427).pdf (1424791 bytes) - Appellate Petition, Motion & Filing - Petition for Review (Dec. 28, 2007)
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Appellate Brief - Answer, Brief On the Merits, 7:23:2008 (2008 WL 4143642).pdf (3024832 bytes) - Appellate Brief - Answer, Brief on the Merits (July 23, 2008)
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Appellate Brief - Application to File Amicus Curiae Brief, 9:10:2008 (2008 WL 4973079).pdf (3869199 bytes) - Appellate Brief - Application to File Amicus Curiae Brief and Brief of National Association of Drug Court Professionals and California Association of Drug Court Professionals as Amici Curiae, in Support of San Diego County Health & Human Services Agency, Real Party in Interest (Sept. 10, 2008)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 3, 2010
Annotated by rphill

OPINION BY Corrigan, J (joined by: George, C.J., Kennard, Werdegar, Chin, and Moreno, JJ.)

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SEARCH TAGS: contempt, dependency, juvenile adjudications, parental responsibilities, fitness, unfitness, reunification.

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ISSUES

1. Does a juvenile court have the authority to order a parent to participate in a substance-abuse treatment program as part of a reunification plan in dependency proceedings?

2. Does Cal. Welf. & Inst. Code § 213 authorize contempt and incarceration against a parent for failing to comply with a court order imposing a condition for reunification? This is a question of first impression.

HOLDINGS

1. Juvenile courts have the power to order a parent to participate in a substance-abuse treatment program as a part of a voluntary reunification plan.

2. Juvenile courts are not authorized to impose contempt sanctions solely because a parent fails to satisfy a reunification condition.

FACTS

Petitioner-mother and her child tested positive for amphetamines on the day of the juvenile’s birth. After admitting significant drug and alcohol abuse issues, the San Diego County Health and Human Services Agency (Agency) filed a juvenile dependency petition alleging that the mother’s substance-abuse issues constituted a legally cognizable violation of her duty to protect the juvenile. The juvenile court found the allegations true, sent the child to live with a maternal aunt, and, at the mother's request, issued a reunification plan ordering her to participate in the Substance Abuse Recovery Management System (SARMS), a treatment program run by the county in conjunction with private rehabilitation service providers, in order to regain custody of her child.

The San Diego County Superior Court implemented SARMS to require the assessment of and participation by any parent in dependency proceedings with a reunification plan that the court believed or found to have drug or alcohol abuse problems. Super. Ct., San Diego County, Local Rules, Rule 6.1.19 authorizes citation for contempt and incarceration for up to five days for every instance of a parent’s noncompliance with a judicial order in furtherance of a reunification plan.

The mother agreed to participate in SARMS, but after testing positive for methamphetamine during her first session in July, 2006, and her subsequent failures to attend future sessions, submit for drug testing, or notify program coordinators, the court dropped her from the program in October, 2006 and issued a bench warrant for her arrest for violating its orders thereafter.

At proceedings in December 2006, the court found petitioner in contempt and sentenced her to 300 days in custody, five-days each for 60 counts of non-compliance with treatment orders. The court also terminated reunification services and planned a permanency hearing against the petitioner to conclude the matter of her child's dependency and the revocation of parental rights. It ordered petitioner's release after only 32 days however, after counsel and the Agency agreed incarceration was no longer necessary given that reunification services had ended. Petitioner appealed from the contempt order.

PROCEDURAL POSTURE

The Court of Appeals reversed the trial court's conviction for contempt and vacated its sentence. Holdings:
1.) A petition for extraordinary writ, not an ordinary appeal, is the exclusive means to challenge such an order against a parent by a juvenile court in dependency proceedings.
2.) The court declined to reach the question of a juvenile court’s authority to issue contempt sanctions in these circumstances.
3.) Assuming that authority might exist, however, the appellate court found that the superior court would have abused its discretion in issuing its sentence anyhow, as a sentence of 300-days was punitive and excessive.

DISPOSITION

The decision of the Court of Appeals was affirmed.

ANALYSIS

I. Juvenile courts have the power to order mandatory substance-abuse treatment furthering reunification plan in dependency proceedings.

A. Reunification services are voluntary and an unwilling parent is not required to participate.
1). Such services are intended as a mechanism by which parents may demonstrate their fitness to the court.

2). A court’s power over the child’s placement gives it the authority to impose reunification conditions upon any parent voluntarily seeking to regain custody.

B. However, a court in dependency proceedings assumes the power to issue binding parental orders in furtherance of reunification once parent agrees to the plan.
1). The legislature, in its goal of furthering reunification wherever possible, provides this authority under Cal. Welf. & Inst. Code § 361.5.

2). Cal Welf & Inst Code § 362 authorizes courts to issue whatever orders it, “deems necessary and proper to carry out” the reunification plan, including counseling and education programs for parents.

C. However, a court’s reunification orders must be “reasonable” and “designed to eliminate those conditions that led to the court's finding that the child” is better served outside that parent’s custody. (§ 362).
1). Thus, court would only have the power to order a substance-abusing parent into treatment if that was a “condition” that decreased the likelihood of the juvenile’s return to him or her. The Court concludes such is the case in the present matter.

II. However, contempt and incarceration are not appropriate sanctions for a parent found to violate a substance-abuse rehabilitation order issued as a condition to a juvenile dependency reunification plan.
A. A court “has inherent power to enforce compliance with its lawful orders through contempt.”
1). This power is codified in Cal. Welf. & Inst. Code § 213, which states: “Any willful disobedience or interference with any lawful order of the juvenile court or of a judge or referee thereof constitutes a contempt of court”.

B. However, where the legislature has imposed a specific penalty, based in substantive law, for a particular transgression, the court must enforce that penalty and may not exercise contempt power either instead of or addition to it as a means of redressing the transgression.

C. Additionally, reunification cases differ from other cases in which a court might exercise contempt.
1). In juvenile court, jurisdiction exists over the child and to the parent only where necessary to exercise the court’s duty to act in the child’s best interest.
a). Thus, no statutory limitations or guiding principles exist with regard to contempt power over an ancillary party failing to meet a condition in a voluntary reunification plan.

b). The obligations imposed by the court in a reunification plan thus require the “the juvenile court to order participation as part of the parent's reunification plan”; it does not impose a mandatory duty on the parent warranting contempt sanctions for violation.

2). A sufficient statutory regime already exists to incentivize parental compliance with reunification plan orders. Namely, the juvenile court has the power to revoke parental rights where failure to abide by reunification plan conditions lead it to determine that a return to parental care is not “in the child’s best interest”.

D. Contempt is especially problematic and thus inappropriate with regard to SARMS orders, because, by their nature, contempt sanctions have a punitive effect that is inconsistent with the rehabilitative goal at the core of SARMS, vis-à-vis the child’s best interests.

E. This decision does not extend to contempt power by juvenile courts generally or in other circumstances. That power remains authorized to the extent that it is in conformity with legislative goals.
1). Contempt may be valid and necessary in cases involving “extreme parental misconduct that jeopardizes the child's safety,” because, “such conduct interferes with the court's exercise of its own authority over the dependent child.”

May 3, 2010
Annotated by rphill

CONCURRING AND DISSENTING OPINION BY: Baxter, J.

Justice Baxter concurred in the judgment but not with the Court's rationale.

1. Justice Baxter would have held that contempt charges should have been overturned because the superior court abused its discretion by executing its incarceration order in a punitive way after reunification had ended, as the court of appeal's ruled.

2. The court's broad rationale that contempt sanctions are inappropriate in dependency proceedings is misguided; while the juvenile courts do have a special and unique duty to protect children in such proceedings, the juvenile court is simply a subdivision of the superior court obligated to follow its general practices.

3. Once the court's order had issued, it was a valid order from a superior court. The circumstances surrounding the order, including the case at hand and jurisdictional issues, became irrelevant with respect to the petitioner's duty to abide by it. Her contempt in this case is no different than contempt under any other circumstances.

4. Justice Baxter also disagrees with the Court that the legislature's intent in granting juvenile courts authority to revoke parental rights was that it be the only recourse (and not contempt) in such proceedings against violations.

ANNOTATION BY: Raymond P. Hill