IN RE: RADA W. (1988)

OPINION

The mother, Linda W., appeals a permanent plan for long-term foster care of her 15–year–old daughter, Rada W. (the minor), ordered by the court on May 20, 1987, on the ground of lack of substantial evidence.   She also contests the trial court's delegation of authority in that order to the Department of Public Social Services (DPSS) to set appropriate overnight visitation.   The minor has filed a brief making essentially the same contentions and arguments.

We reject the contention of lack of substantial evidence, but agree that the delegation of authority to DPSS was improper.   We affirm with directions to determine the overnight visitation with the minor.

FACTS

The minor and her half-brother were adjudged dependents under Welfare and Institutions Code section 300, subdivisions (a) and (d).²  At the contested jurisdictional hearing, the allegations of the reactivated petition filed September 30, 1985, were found true that the stepfather had sexually abused the minor over a number of months on a continuing basis, that the brother witnessed the abuse on at least one occasion, and that the mother had been aware of the abuse for at least three months but had failed to protect the minor or seek assistance.

The minor had previously been a dependent of the court by reason of being sexually molested by her paternal grandfather and her mother failing to protect her.   The minor was also sexually abused by her maternal uncle during 1984 and 1985.³

The minor and her half-brother were placed in foster care in or about November 1985.   The minor's brother was returned to the custody of his father (the minor's stepfather) and mother (also the minor's mother) in December 1986.   The location of the minor's natural father is unknown.

About the time of the jurisdictional hearing, the minor's stepfather and mother pled guilty to charges of child molestation and failure to protect the minor.   Both were given probation, the mother until 1988 and the stepfather until 1990 with the stepfather serving 60 weekends in jail.

The mother and stepfather regularly attended therapy sessions for 14 months prior to the permanency planning hearing in May 1987, which is the subject of this appeal.   The mother has visited the minor on a regular basis, the stepfather less often due to his work and jail schedule.   The stepfather and mother both work, are economically stable, and own their home.

The minor is mildly to moderately retarded with an IQ of 47.   As a tenth grader she attended special education classes and participated in group counseling twice a week.   She definitely wants to be returned to the custody of her parents, but still fears being sexually abused.   She asserted to the reporting social worker that her stepfather sexually molested her on almost a daily basis from the age of 11.   She feels the sexual abuse was her fault.

I.***

SUBSTANTIAL EVIDENCE

II.IMPROPER DELEGATION OF JUDICIAL POWER

The mother correctly contends that the trial court could not delegate to the DPSS the power to determine whether the mother could have overnight visitation with the minor at the mother's home.

At the end of the permanency planning hearing, the mother requested that the minor be allowed to visit the mother at her home while the minor's stepfather was serving his jail time.   The trial court responded:  “Well, the current order for visitation between the minor and the mother is as directed by the Department, and the Court is going to leave that to the discretion of the Department.”   Although the record on appeal does not contain the order to which the trial court referred, the record does contain another Riverside County Juvenile Court minutes form with a box to be checked indicating that visitation with the minor is “to be as directed by DPSS,” indicating that such an order is a standard way of dealing with visitation in Riverside County.

The judicial power of this state is vested in its courts.  (Cal. Const., art. 6, § 1.)   Judicial power is both the power to determine “ ‘ “the rights of an individual under the existing laws” ’ ” and “to make binding orders or judgments.”  (People v. Bird (1931) 212 Cal. 632, 640, 641, 300 P. 23.)   One of those “ ‘ “rights ․ under existing laws” ’ ” is the right of a mother to have visitation with her daughter while the mother is deprived of custody.   “ ‘In the absence of express prohibition, rights in that regard ensue from parenthood․’ ” (Exley v. Exley (1951) 101 Cal.App.2d 831, 839, 226 P.2d 662.)   The right to visitation is, of course, subject to the best interests of the child.  (See, e.g., Civ.Code, § 4601.)

A dependency proceeding in which the child is taken from a parent's custody does not end the parent's right to visit the child.   Visitation is a necessary and integral part of the reunification plan.  (See:  §§ 362.1, 361.5, subd. (e).)  At the permanency planning hearing, the juvenile court may not authorize an action to free a minor from parental custody and control if it finds that a parent has “maintained regular visitation and contact with the minor and the minor would benefit from continuing this relationship.”  (§ 366.25, subd. (d)(1)(A).)   In such a case, the permanent plan would call for guardianship or long-term foster care (see § 366.25, subd. (d)(2)) so visitation could continue.   Where a parent's rights have not been terminated, the parent is entitled to be present at the six-month status review hearings and to establish by a preponderance of the evidence that further reunification efforts are the best alternative for the minor, in which case reunification services may be provided for an additional six months.  (§ 366.3, subd. (c);  see also § 366.3, subd. (b) [where a guardianship has been terminated, parent may establish by preponderance of evidence that reunification is best alternative and court has discretion to “order that reunification services again be provided”].)  Continuing visitation in the court's discretion in a permanent plan order for long-term foster care is consistent with the provision for additional, post permanent plan reunification services in section 366.3, subdivision (c), since it would provide significant information affecting a court's determination whether reunification had become the best alternative under that subdivision.  (Cf. § 362.1 [importance of visitation while reunification services being provided].)  Even the superior court in a proceeding to terminate parental rights under Civil Code section 232 has discretion to order reunification services (see In re Clarence I. (1986) 180 Cal.App.3d 279, 283, 225 Cal.Rptr. 466, fn. 5 and accompanying text) and, therefore, visitation.  (See § 362.1 [requiring every order for reunification services provide for visitation].)

 Thus, while a dependency proceeding in which the child is removed from a parent's custody subjects the parent's right to visitation to the juvenile court's discretion, the dependency proceeding does not end the parent's right to visitation.   Indeed that right cannot be finally terminated by the juvenile court, which only has the authority to authorize a superior court proceeding to terminate parental rights.⁵  (See:  § 366.25, subd. (d)(1);  In re Laura F. (1983) 33 Cal.3d 826, 844, 191 Cal.Rptr. 464, 662 P.2d 922 (conc. and dis. opn. of Bird, C.J.) [visitation is one of the rights terminated by a proceeding pursuant to Civil Code § 232].)

 Since at the time of the permanency planning hearing the mother had a right to visitation “ ‘ “under the existing laws” ’ ” (People v. Bird, supra, 212 Cal. at p. 640, 300 P. 23), including overnight visitation with her daughter at the mother's residence, we conclude that the exercise of judicial power was required “to make binding orders” on that issue.  (Id., at p. 641, 300 P. 23.)

Article 3, section 3, of the California Constitution states:  “The powers of state government are legislative, executive, and judicial.   Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.”

The Department of Public Social Services of Riverside County is an executive agency.   Therefore, a judicial power may not be exercised by it, and the delegation by the trial court to it of the discretion to determine whether or not the mother would be granted overnight visitation was an improper delegation of that power.  (Cf.:  Fewel v. Fewel (1943) 23 Cal.2d 431, 434–436, 144 P.2d 592 [trial court cannot delegate to domestic relations investigator power to decide proceeding to modify custody provisions of final judgment of divorce];  In re Marriage of Matthews (1980) 101 Cal.App.3d 811, 816–817, 161 Cal.Rptr. 879 [order purporting to give member of conciliation department authority to modify visitation schedule held invalid as improper delegation of judicial power].)

Furthermore, the determination of the mother's visitation rights by DPSS violates the mother's right to due process of law.   DPSS is the initiating party in a dependency proceeding and bears the burden of proof against the parent.  (See, e.g., § 366.2, subd. (e).)  While the ideal nature of a dependency proceeding is that of a non-adversarial search for what is in the child's best interest, the result is the temporary and possibly permanent deprivation of a valued right, in this case overnight visitation.  (See Lois R. v. Superior Court (1971) 19 Cal.App.3d 895, 900–901, 97 Cal.Rptr. 158.)   It offends due process to leave the decision concerning such a right in the discretion of the mother's adversary, thereby mixing the roles of prosecutor and judge.  (See id., at pp. 901–903, 97 Cal.Rptr. 158.)

Just such a mixing of roles was denounced as a violation of due process in Lois R. v. Superior Court, supra, 19 Cal.App.3d 895, 902, 97 Cal.Rptr. 158.   In that case the referee conducted the jurisdictional hearing on a dependency petition as both judge and advocate in support of the petition.   Appointing DPSS, a party to the proceeding, to decide the visitation issue presents an even more egregious violation, since the referee was at least not a party.

The judgment is affirmed with the trial court directed to hear and determine the mother's request for overnight visitation.

FOOTNOTES

2.   All section references are to the Welfare and Institutions Code unless otherwise indicated.

3.   The minor and mother assert that the minor also claimed to have been molested by a 12–year–old cousin after the permanency planning hearing which is the subject of this appeal.   However, since the event occurred after the order being reviewed, it can have no effect on our appraisal of that order.  (See 9 Witkin, Cal. Procedure (3d ed.) Appeal, § 252, pp. 258–259.)

FOOTNOTE.   See footnote 1, ante.

5.   The juvenile court will be able to terminate parental rights as to all minors adjudged wards in dependency proceedings after January 1, 1989, the effective date of new section 366.26 (Stats. 1987, ch. 1485, §§ 47, 51, No. 12, West's Cal. Legis. Service, pp. 709–712, 714).

CAMPBELL, Presiding Justice.

McDANIEL and HEWS, JJ., concur.