IN RE: Lisa R. et al.

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Court of Appeal, Second District, California.

IN RE: Lisa R. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JIMMIE C., Defendant and Appellant.

B219051

Decided: June 23, 2010

Maryann M. Milcetic, under appointment by the Court of Appeal for Defendant and Appellant. Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.

[Father's Counsel]:  Your Honor, father continues to object.   He does not wish to take the stand.   But he does want the Court to know that the conjoint counseling that the Court had previously ordered has not occurred.   And although his children seem to be able to come over and visit him when they want to, he doesn't get return phone calls, and he hasn't been able to set up unmonitored visits with the caregiver.

The Court:  I'm sorry?   What?

[Father's Counsel]:  He doesn't-he's not able to set up visits or get return phone calls.   But he indicated that Cynthia, in particular, comes over when she wants to.   But he's concerned that his other children aren't getting as much contact, certainly, as he would like, but perhaps as much as they would like also.

The Court:  All right, Well, I'll suggest they talk to their lawyers about that.  [¶] All right.   Everybody-so father does not wish to testify.   He's objecting to legal guardianship.   Everybody else is in agreement with legal guardianship.

There was no further discussion about visitation at the hearing.   Instead, the court proceeded with the selection of a permanent plan for each of the children.   With respect to Cynthia, the court found that continued jurisdiction was necessary and that long-term foster care was the appropriate permanent plan.   With respect to Lisa and Jimmie, the court found that continued jurisdiction was also necessary and that the appropriate permanent plan was legal guardianship.   The court appointed Antoinette W. as the legal guardian of Lisa and Jimmie.

The minute order for the July 27, 2009 section 366.26 hearing was silent with respect to the matter of visitation.   However, an order for visitation was included as part of the juvenile court's July 27, 2009 written order on Judicial Council Form JV-320.   In that signed written order, the court confirmed its selection of a legal guardianship as the permanent plan for Lisa and Jimmie.   The court also ordered visitation for Father and Mother with the children as follows:  “Monitored visits as arranged amongst the parties.”   Father thereafter filed a timely notice of appeal of the juvenile court's July 27, 2009 order.3

DISCUSSION

On appeal, Father argues that the juvenile court erred in failing to make an order for visitation at the section 366.26 permanency planning hearing held on July 27, 2009.   Father also asserts that, even assuming the court did make a visitation order, its order essentially granted the legal guardian and the children the authority to determine whether any visitation with Father would occur.   We conclude that the court's written order for “[m]onitored visits as arranged amongst the parties” was insufficient to safeguard Father's right to visitation.   The matter therefore must be remanded to the juvenile court to make an appropriate visitation order that adequately addresses Father's visitation with each of the children.

At a section 366.26 permanency planning hearing, if the juvenile court orders a legal guardianship or long-term foster care placement for children who are dependents of the court, “[t]he court shall also make an order for visitation with the parents or guardians unless the court finds by a preponderance of the evidence that the visitation would be detrimental to the physical or emotional well-being of the child.” (§ 366.26, subd. (c)(4)(C).)  By adding this statutory provision, “the Legislature made clear its intent to require juvenile courts to make visitation orders in both long-term foster care placements and legal guardianships.”  (In re M.R. (2005) 132 Cal.App.4th 269, 274 (M.R.).)   A juvenile court accordingly has a statutory obligation to make an order for visitation at a section 366.26 hearing unless it affirmatively finds that visitation with the parent would be detrimental to the child. (§ 366.26, subd. (c)(4)(C);  see also M.R., supra, at p. 274 [under section 366.26, “the trial court was required to make a visitation order unless it found that visitation was not in the children's best interest”].)

In making any visitation order, the juvenile court “must define the rights of the parties to visitation.”  (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757;  see also In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1476 [juvenile court “has the power and responsibility to regulate visitation between dependent children and their parents”].)  “The definition of such a right necessarily involves a balancing of the interests of the parent in visitation with the best interests of the child.”  (In re Jennifer, supra, at p. 757.)  “[T]he parents' interest in the care, custody and companionship of their children is not to be maintained at the child's expense,” and “the possible adverse consequences if a visit is forced against the child's will are factors to be considered in administering visitation.”  (In re S.H. (2003) 111 Cal.App.4th 310, 317;  see also In re Julie M. (1999) 69 Cal.App.4th 41, 50 [“a parent's liberty interest in the care, custody and companionship of children cannot be maintained at the expense of their well-being”].)

“Nonetheless, the power to decide whether any visitation occurs belongs to the court alone.  [Citations.]  When the court abdicates its discretion in that regard and permits a third party, whether social worker, therapist or the child, to determine whether any visitation will occur, the court violates the separation of powers doctrine.  [Citation.]”  (In re S.H., supra, 111 Cal.App.4th at pp. 317-318, fn. omitted.)   In accordance with this principle, appellate courts repeatedly have recognized that the discretion to decide whether visitation will occur must remain at all times with the juvenile court.  (See, e.g., In re S.H., supra, at pp. 318-319 [reversing visitation order that provided “ ‘if the children refuse a visit, then they shall not be forced to have a visit’ ” because it “effectively [gave] the children the power to veto all visits”];  In re Julie M., supra, 69 Cal.App.4th at p. 48 [reversing visitation order that granted the children the option of not attending any visits because it allowed them “absolute discretion to decide whether [their mother] could visit with them”];  In re Donnovan J., supra, 58 Cal.App.4th at p. 1478 [reversing visitation order that the father was to have “ ‘no visitation rights without permission of minors' therapists' ” because it delegated to the therapists “unlimited discretion to decide whether visitation is appropriate”];  In re Jennifer G., supra, 221 Cal.App.3d at p. 755 [reversing visitation order that specified visits would “ ‘be under the discretion of the Department Social Services' ” because “the determination of the right to visitation and the frequency of visitation ․ must be made by the court”].)

In M.R., a case cited by Father, the mother of two dependent children argued that the juvenile court improperly delegated to the legal guardian the authority to decide whether visitation with the children would occur.   (M.R., supra, 132 Cal.App.4th at p. 272.)   The visitation order at issue provided that “ ‘[v]isitation between the child and parents shall be supervised and arranged by the legal guardians at their discretion.’ ”  (Ibid.) The Court of Appeal held that the order constituted an abuse of discretion because it impermissibly delegated a judicial function to the guardian.  (Id. at p. 274.)   Although “[t]he court may delegate authority to the legal guardian to decide the time, place, and manner in which visitation will take place,” the order in M.R. “left every aspect of visitation, other than supervision, to the discretion of the legal guardian.”  (Ibid.) The Court of Appeal therefore remanded the matter to the juvenile court with directions to “make a new visitation order that specifies the frequency and duration of [the mother's] visits.”  (Id. at pp. 274-275.)

Recently, our colleagues in Division One reached a similar conclusion in In re Rebecca S. (2010) 181 Cal.App.4th 1310 (Rebecca S.).   The father in Rebecca S. challenged a visitation order issued by the juvenile court at a section 366.26 hearing granting a legal guardianship for his children.   (Id. at p. 1312.)   The visitation order permitted “ ‘[m]onitored visits for parents' ” with the “ ‘[d]uration, frequency, and location to be determined by the legal guardian.’ ”  (Id. at p. 1313.)   The Court of Appeal held that the juvenile court abused its discretion in issuing the visitation order by leaving the frequency and duration of the visits within the legal guardian's absolute discretion.  (Id. at p. 1314.)   As the Court noted, “[t]he time, place, and manner of visitation may be left to the legal guardian, but leaving the frequency and duration of visits within the legal guardian's discretion allows the guardian to decide whether visitation actually will occur.  [Citation.]”  (Ibid.) The Court thus reversed the visitation order and remanded the case with directions “to specify the frequency and duration of Father's visits.”   (Id. at p.1315.)

In this case, the juvenile court had a mandatory duty under section 366.26 to make an order for visitation with Father unless it found by a preponderance of the evidence that visitation would be detrimental to the children. (§ 366.26, subd. (c)(4)(C).)  The juvenile court made no such finding of detriment.   At the contested section 366.26 hearing held on July 27, 2009, the court failed to address the issue of visitation at all over Father's objections, and instead directed the parties to discuss the matter with their attorneys.   In its subsequent written order granting a legal guardianship for Lisa and Jimmie, the court did make an order for parental visitation, but its order merely provided for “[m]onitored visits as arranged amongst the parties.”   This visitation order was inadequate.

As this Court has held, when the juvenile court in a dependency case “orders visitation, it must also ensure that at least some visitation, at a minimum level determined by the court itself, will in fact occur.”  (In re S.H., supra, 111 Cal.App.4th at p. 313.)   In the visitation order at issue here, however, the juvenile court not only failed to describe the frequency and duration of visits with any degree of specificity, it also failed to give the parties any guidance as to how those determinations were to be made and who was to be involved in those decisions.   Instead, the order vaguely pronounced that visitation was to be “arranged amongst the parties.”   Accordingly, while the order presumed that Father had a right to visitation with the children, it did not provide any real assurance that visitation would occur.   As such, it rendered Father's right to visitation illusory.  (In re S.H., supra, at p. 319 [“by failing to mandate any minimum number of monitored visits per month or even to order that some visitation must occur each month, the court's abstract recognition of [the parent's] right to visitation is illusory”].)

The failure to provide an adequate visitation order was particularly problematic in this case.   The record reflects that, at the time of the contested section 366.26 hearing, there was an ongoing conflict between the parties about the frequency of Father's contact with the children.   The children had related to the DCFS that they no longer wanted to visit Father, and they often refused to attend the visits or left Father's home during the visits to be with their friends.   While the legal guardian assured the DCFS that she would facilitate visitation with Father if the children wished to see him, Father voiced concern that the guardian was manipulating the children into not wanting any visits.   Indeed, the alleged lack of adequate visitation with the children was Father's only basis for objecting to a legal guardianship at the section 366.26 hearing.

Given the persistent conflict between the parties, the juvenile court's written order that any visitation was to be arranged by the parties was clearly insufficient to define the scope of Father's right to visitation.   The order did not merely delegate the time, manner, and place of visits to the legal guardian or other third party.   Instead, by failing to provide the parties with any guidance about the circumstances under which visitation would be permitted, the order arguably gave the legal guardian or the children the absolute discretion to determine whether any visits would occur.   It thus improperly delegated the judicial function to the parties themselves.   Because the written visitation order entered by the court failed to ensure that at least some level of visitation with Father would in fact occur, it constituted an abuse of discretion and must be reversed.

Father asserts in his appeal that all other rulings made at the section 366.26 hearing must also be reversed, including the order granting a legal guardianship for Lisa and Jimmie and a long-term foster care placement for Cynthia.   However, apart from the claimed error in the visitation order, Father has failed to identify any error made by the juvenile court at the section 366.26 hearing or in its subsequent written order establishing a legal guardianship.   Error is not presumed on appeal and it is the appellant's burden to affirmatively demonstrate any error.  (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140;  Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)   Father has not met that burden here with respect to any other ruling made by the court.   Therefore, while we remand the matter to the juvenile court to make an appropriate visitation order, all other orders made at the July 27, 2009 section 366.26 hearing are affirmed.

DISPOSITION

The portion of the July 27, 2009 order regarding Father's visitation with Lisa, Cynthia, and Jimmie is reversed, and the matter is remanded to the juvenile court to conduct a new hearing on the issue of visitation consistent with this opinion.   In all other respects, the July 27, 2009 order of the juvenile court is affirmed.

We concur:

FOOTNOTES

FN3. As a preliminary matter, we note that the parties dispute which of the children are subjects of this appeal.   Father claims that his appeal pertains to all three children-Lisa, Cynthia, and Jimmie.   The DCFS contends that, because Father's notice of appeal only stated that he was appealing the order of “July 27, 2009, granting of legal guardianship,” the appeal does not pertain to Cynthia, who was ordered into a plan of long-term foster care.   However, “ ‘notices of appeal are to be liberally construed so as to protect the right of appeal.’ ”  (In re Joshua S. (2007) 41 Cal.4th 261, 272;  see also Cal. Rules of Court, rule 8.400(c)(2) [“The notice of appeal must be liberally construed, and is sufficient if it identifies the particular judgment or order being appealed.”].) We thus construe Father's notice of appeal to encompass all orders made by the juvenile court at the July 27, 2009 hearing, including the permanent plan order for Cynthia..  FN3. As a preliminary matter, we note that the parties dispute which of the children are subjects of this appeal.   Father claims that his appeal pertains to all three children-Lisa, Cynthia, and Jimmie.   The DCFS contends that, because Father's notice of appeal only stated that he was appealing the order of “July 27, 2009, granting of legal guardianship,” the appeal does not pertain to Cynthia, who was ordered into a plan of long-term foster care.   However, “ ‘notices of appeal are to be liberally construed so as to protect the right of appeal.’ ”  (In re Joshua S. (2007) 41 Cal.4th 261, 272;  see also Cal. Rules of Court, rule 8.400(c)(2) [“The notice of appeal must be liberally construed, and is sufficient if it identifies the particular judgment or order being appealed.”].) We thus construe Father's notice of appeal to encompass all orders made by the juvenile court at the July 27, 2009 hearing, including the permanent plan order for Cynthia.

the court:

WOODS, Acting P. J. JACKSON, J.