The California Supreme Court in In re Nolan W. ruled that Juvenile Courts do not have the power to incarcerate parents in dependency matters for failure to comply with reunification plans.

In In re Nolan W. the San Diego County Juvenile Court found Nolan’s mother to be in contempt for her failure to comply with the drug treatment conditions of its SARMS (Substance Abuse Recovery Management System) Under the SARMS program parents in dependency actions who are suspected of having substance abuse problems are referred to a private organization that contracts with the Juvenile Court for assessment. If the programs finds that the parent needs substance abuse treatment, the parent can either voluntarily agree to enter into a contract with SARMS or the Court will order it as part of the reunification program. Failure to comply (dirty tests, missed sessions, etc) with the conditions of the program can result in a order finding the parent in contempt of court. The court may then order up to five days in jail for each violation. In the case of Nolan W.’s mother the court found 60 violations of the SARMS conditions and after the mother failed to appear in court sentenced her to 300 days in jail, later commuted to 32 days.

The Supreme Court found the use of incarceration to force compliance with a reunification policy is unauthorized under state law. Entry into a reunification program is voluntary and while the penalty is severe (removal of the child from the parent’s custody) the parent does not have to enter into or comply with a reunification program. Furthermore the Legislature has set the penalty as the loss of parental rights and at no place does it authorize incarceration for the failure to comply with reunification orders.

The use of incarceration to force compliance with with reunification programs is similar to criminal contempt even thought dependency matters are civil in nature. Civil contempt requires that the order be indeterminative in length and the incarceration be terminated upon compliance with the court order. Unlike civil contempt criminal contempt is punitive and the sentence is for a specific period of time. Since reunification is voluntary and since it is the child, not the parent, that is the ward of the court, the Court found that punitive actions are inappropriate.

As a common sense point of view, if the threat of permanent removal of the child from the household does not result in compliance jail is unlikely to succeed either. Certainly while one is in jail one is probably unable to take significant steps towards reunification and the state policy behind dependency courts requires that reunification be the goal in most cases. As a general rule reunification is in the best interest of the child and the parent’s incarceration is counter productive. In the case of Nolan W. it was particularly unhelpful since it was ordered after reunification efforts had been terminated and when it was apparent that parental rights would probably be terminated.