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In re Olivia J.2/15/2005
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Otis J., the father of nine-year-old Olivia J., appeals an order requiring his visits with Olivia be supervised and an order denying without a hearing his Welfare and Institutions Code section 388 petition in which he requested the vacation of orders and contempt declarations regarding his participation in the Substance Abuse Management System (SARMS), changing the visitation order to delete the supervision requirement, or placing Olivia with him. We hold the juvenile court abused its discretion by requiring visits be supervised and reverse that order. We affirm the order denying the section 388 petition without a hearing without prejudice should Otis wish to file a second section 388 petition requesting placement of Olivia with him.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2003 Olivia telephoned Otis and told him her mother, Lenore T., had injured her. Otis took Olivia to a hospital, where it was determined she had a broken finger. The juvenile court adjudged Olivia a dependent child under section 300, subdivision (a), placed her with her adult sister and ordered reunification services, including unsupervised visits with Otis. Otis reported a history of alcoholism, but said he had been sober for several years. His criminal history included a 1980 conviction for driving under the influence and a 1995 arrest for spousal abuse of Lenore T. He lived with his mother and siblings and acknowledged he did not have appropriate housing for Olivia.
The court ordered Otis to participate in the SARMS program. The SARMS requirements were later modified, but after fulfilling them for a time, Otis did not comply and the court found him in contempt and sentenced him to five days in custody. He appealed and this court affirmed the order in In re Olivia J. (2004) 124 Cal.App.4th 698.
Otis told the social worker he did not believe he needed parenting classes or the SARMS program. He said he did not have a drug problem and had not had a drink in 15 years. In July 2004 the SARMS recovery specialist requested Otis be terminated from the program.
On July 15, 2004, the San Diego County Health and Human Services Agency (the Agency) petitioned under section 387, alleging Olivia's sister was physically abusing her, was allowing the parents to have unsupervised visits and was not providing proper childcare arrangements for Olivia. The social worker requested Otis's visits be supervised because he was not complying with SARMS requirements. At the detention hearing the court required Olivia's visits with Otis be supervised. At the jurisdictional and dispositional hearing on August 4 the court denied Otis's request for unsupervised visits. He appealed. At an ex parte hearing on September 1 he was terminated from the SARMS program because he had had no contact with SARMS for 60 days.
On September 9, Otis's attorney filed a section 388 petition, seeking unsupervised visits with Olivia or her placement with Otis. The petition also sought to vacate the SARMS order and the declarations of contempt, Otis's attorney apparently being unaware that Otis had been terminated from the SARMS program. The petition alleged as changed circumstances or new evidence that Otis's last criminal conviction involving substance abuse was in 1980; there was insufficient evidence to order him into the SARMS program; he had no dirty drug te
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