In re Jennifer B.

In re Jennifer B.

Filed 8/7/08 In re Jennifer B. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

In re JENNIFER B., a Person Coming Under the Juvenile Court Law.
FRESNO COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JORGE B., Defendant and Appellant.	F054505 (Super. Ct. No. 07CEJ300160-1) OPINION

APPEAL from orders of the Superior Court of Fresno County. Jane A. Cardoza, Judge.

Gregory M. Chappel, under appointment by the Court of Appeal, for Defendant and Appellant.

Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant Jorge B. (Jorge) appeals from the visitation provisions of the jurisdictional and dispositional orders in this dependency matter involving his daughter, Jennifer B. Jorge contends the juvenile court improperly prohibited visitation with his daughter while he was in jail, and improperly vested respondent, the Fresno County Department of Children and Family Services (the Department), with discretion as to whether to permit reasonable visitation upon his release from custody.

Our review of the entirety of the record demonstrates that contrary to the juvenile courts orders, Jorge left the state and failed to report to the Department after he was released from jail, failed to comply with the reunification plan or take advantage of the existing visitation order, and abandoned any efforts to seek review of the courts subsequent visitation orders. Based on the unique procedural circumstances of this case, the instant appeal should be dismissed as moot.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant Jorge B. (father) and Janet C. (mother) are married and parents of one child, Jennifer B. (born 2001). On February 4, 2007, the police responded to their residence on a domestic violence call. A neighbor reported that Jorge and Janet were arguing, Jorge pushed Janet out of their apartment, and Janet took Jennifer and left the area. The neighbor feared for Janets safety because the parents frequently engaged in arguments and physical altercations.

The police entered the apartment through the open front door to check on the familys welfare, and found Jorge in the bedroom. The police found drug paraphernalia, two quantities of crystal methamphetamine, unused plastic bags, and two scales with white residue. Jorge later admitted he had a methamphetamine problem but claimed the drugs belonged to a friend who sold narcotics from the apartment. Jorge admitted he argued with Janet and she left the residence. Jorge was arrested for possession of a controlled substance for sale and possession of narcotics paraphernalia.

On the evening of April 1, 2007, the police responded to another domestic violence dispatch involving the parents. Janet reported that on the previous day, she argued with Jorge about whether he was cheating on her, and Jorge punched her in the arms. Janet said Jennifer was present during part of the altercation and became upset. Janet sent the child out of the room and Jorge resumed the altercation. Janet displayed numerous bruises on her arms from this and other incidents. Janet said Jorge had been physically abusing her for the past month and she believed he was abusing drugs.

As a result of this incident, Janet obtained an emergency protective order. Jorge was arrested and claimed he did not know Janet and never hit anyone. He was charged with domestic violence (Pen. Code,  273.5, subd. (a)) and committing domestic violence in a childs presence (Pen. Code,  273a, subd. (b)).

On April 10, 2007, Jorge was convicted of misdemeanor infliction of corporal injury on a spouse (Pen. Code,  273.5, subd. (a)) and placed on probation.

On May 2, 2007, Janet was severely beaten by Jorge with a tire iron. The incident began when Janet and Jennifer were walking near their residence. Jorge and a friend drove up and told them to get into the car. Janet refused because of the existing emergency protective order. Jorge became angry and demanded they get into the car, and they complied. Jorge told his friend to drive out in the country. Jorge was angry because Janet called the police one month earlier and had him arrested for domestic violence. Jorge told Janet that she needed to go to court and tell the judge that she lied and he never beat her. Janet refused. Jorge accused Janet of taking Jennifer to a residence and letting people abuse her. Jorge said he was not going to jail because of Janet and he was going to kill her. Jorge began to slap and hit Janet in the car, and Janet started to cry.

Jorges friend drove into a vineyard, and Jorge and Janet got out of the car. Jorge took Janet into the vineyard and said he was going to kill her. He demanded to know why she allowed Jennifer to be abused, and repeatedly hit Janets back with a white elastic-type rope. Janet tried to run but Jorge dragged her to a vineyard stump and tied her to it. He used his fists and a tire iron to repeatedly hit Janet in the face, chest, arms, and legs, and said he was going to kill her. Janet believed Jennifer was nearby because she could hear the child talking to Jorges friend. Jorge finally stopped beating Janet, took $60 from her purse, said he would let her live this time, and walked away.

Jorges friend stated that he left Jorge and Janet in the vineyard, drove away with Jennifer, and returned about ten minutes later. Jorge was alone and crying and they left the area. Janet managed to free herself and went to a nearby house for help. As the police were interviewing Janet, she saw Jorge drive by and alerted the officers. The police stopped the car and found Jorge, his friend, and Jennifer. Jorge was arrested for this incident and also for a pending warrant for possession of a controlled substance.

Janet was treated at a hospital for bruises and abrasions on her arms, legs, face, and back. Janet stated that Jorge beat her about once a week over the past year, and the violence was becoming worse. Janet said Jorge accused her of allowing Jennifer to be sexually molested in exchange for drugs.

Jennifer told an officer that she got into a car with her mother, father, and her fathers friend, and they drove out to a vineyard. Jennifer said she saw her mother and father sitting in the vineyard and talking, but did not know what they were saying or doing. Jennifer said her fathers friend drove around the vineyard, and her father got back into the car and said her mother was staying in the vineyard because she was mad. Jennifer told a deputy district attorney that she saw Jorge hit Janet with a tire iron. Jennifer later told a social worker that she never saw her father hit her mother.

On May 10 and 31, 2007, the Department received referrals of general neglect of Jennifer because of the parents history of domestic violence and drug use.

On June 10, 2007, the police responded to the Marjaree Mason Center where Janet was staying with Jennifer because of the ongoing domestic violence issues. Janet said she had purchased heroin the previous night. Janet was arrested for being under the influence of heroin in her daughters presence, and she was cited and released. Jennifer was taken into protective custody and placed in foster care. On June 12, 2007, Janet tested positive for opiates, methamphetamine, and cocaine.

The petition

On June 12, 2007, the Department filed a petition in the Fresno County Superior Court alleging that Jennifer was within the juvenile courts jurisdiction pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (g).^[1] As to section 300, subdivision (b), the petition alleged that Jorge and Janet failed to protect Jennifer because they had substance abuse problems with heroin and methamphetamine, they failed to adequately supervise and protect Jennifer, they had a history of exposing Jennifer to an unsafe environment and ongoing domestic violence, and Jorge beat Janet in Jennifers presence. As to section 300, subdivision (g), it was alleged that Jennifer was left without any provisions for her care because Janets whereabouts were unknown and Jorge was in jail.

Detention hearing

On June 13, 2007, the court held the detention hearing. Jorge and Janet were present with their attorneys and denied the petitions allegations. Jennifer was in confidential foster placement and would remain there throughout the entirety of this case.

Jorge asked for Jennifer to be placed with his sister in Oregon and for the case to be transferred to that state. Jorge believed the pending criminal charges were going to be dismissed and he would be released to a program in Oregon. The Department advised the court that Jorge should not receive visitation because an emergency protective order was in effect as to Jorge, Janet, and Jennifer. The Department did not think it was appropriate for this minor to be visiting the father at this time at the jail. Jorges attorney disputed the existence of the restraining order and asked for visitation. The court replied that Jorge had a history of domestic violence. Jorges attorney said that Jorge denied the charges pending against him.

The court found a prima facie case had been established and reasonable efforts had been made to prevent the minors removal, but a substantial danger to the minors physical health made removal necessary. The court declined to transfer the case to Oregon or order relative placement. The court ordered reasonable, supervised visitation with Janet. The court held that Jorge could not receive visitation because of the existing emergency protective order. The court clarified that Jorges restricted visitation would be an interim order and maybe when the dust settles that can be changed. The court instructed the parents to keep the Department advised of their addresses so they could receive notice of the proceedings.

On July 22, 2007, Jorge sent a letter to the court in his pending criminal matter, and stated that he took responsibility for the crime [he] committed to [his] loved one, he was remorseful, it was a mistake, and he wanted to enter a treatment program and regain custody of his daughter. Jorge further stated: I really was looking out for my daughters best interest when he committed the assault on Janet. Jorge admitted he used drugs and mixed drugs with resentment after listening to my daughter say her mom [doesnt] treat her well and makes her sad, and hurt her drove me to be upset.

On August 15, 2007, a complaint was filed in the tire iron incident, charging Jorge with torture (Pen. Code, 206), corporal injury to a spouse or cohabitant (Pen. Code,  273.5, subd. (e)), assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)), criminal threats (Pen. Code, 422), and false imprisonment by violence (Pen. Code,  236). A complaint was filed in a companion case which charged Jorge with possession of methamphetamine.^[2] On August 23, 2007, Jorge entered into a negotiated disposition and pleaded no contest to assault with a deadly weapon and possession of methamphetamine. The trial court dismissed the remaining counts.

Jurisdiction Hearing

On August 24, 2007, the jurisdiction hearing was held in the dependency matter. Jorge was present with counsel and still in custody. Janet was not present but she was at a residential treatment facility. Jorge advised the court that he pleaded no contest to the two pending charges against him. Jorge presented the court with a protective order issued May 7, 2007, which only prohibited contact between Jorge and Janet and did not restrict contact with Jennifer. Jorge requested visitation with Jennifer and reunification services because he had resolved the criminal matter and there was a possibility that he would be released into a program.

The court found all allegations in the petition true except for the count that Janets whereabouts were unknown. The court ordered the Department to assess the possibility of allowing visitation between Jorge and Jennifer while he was in custody.

On September 26, 2007, the court convened the scheduled dispositional hearing in the dependency case, and granted the prosecutions request for a continuance. Jorge was present with counsel and the mothers whereabouts were unknown. Jorge again requested an assessment for visitation. The Department was unable to determine whether the assessment had been performed. The court asked whether visitation between Jorge and Jennifer would be appropriate. The Department and minors counsel both conceded that Jennifer was not within the emergency protective order, as originally believed, but they were concerned about whether it was appropriate for Jennifer to visit Jorge in custody. The court again ordered the Department to assess potential visitation between Jorge and Jennifer and provide the results no later than October 15, 2007.

On October 2, 2007, Jorge appeared for sentencing in the criminal matter. The court imposed the midterm of three years for assault with a deadly weapon, and the midterm of two years for possession of methamphetamine. The trial court suspended execution of sentence and placed Jorge on probation for a period of three years. In both cases, the trial court ordered Jorge to serve 365 days in the Fresno County Jail and he received credit for time served.

On October 26, 2007, the court conducted another hearing. Jorge was present with counsel, and Janets whereabouts were unknown. Jorges counsel stated that he had received all his assessments in custody except for the mental health assessment, and he was going to be released in December 2007. The court ordered Jorge to report to the Departments social worker immediately upon his release from custody.

The Disposition Report

According to the disposition report, Jennifer was healthy and thriving in foster care. Jennifer said she felt safe in her foster home and no longer had nightmares like she did when she lived with her parents. Janet left the residential treatment center in September 2007 and her whereabouts were unknown. The Department recommended denial of reunification services to Janet because her whereabouts were unknown, she was not participating in any services, and she had not addressed her long-term addictions to heroin and methamphetamine.

The report stated that Jorge had completed several assessments. Jorge denied he ever used alcohol or drugs, or that he needed any type of substance abuse treatment. He claimed Janet fabricated the domestic violence charges against him. Jorge denied he suffered from any psychological problems or that he needed counseling. However, Jorge previously admitted a methamphetamine problem and the assessor determined he should participate in a residential substance abuse program and random drug testing. He also needed to participate in a mental health assessment upon his release from custody.

Jorge was still in custody with charges pending for possession of a controlled substance and corporal assault with a deadly weapon. He was scheduled to be released from custody on December 31, 2007, but he was also subject to an INS hold. Jorge wanted Jennifer placed with his sister, Angelica, in Oregon, but she had not contacted the Deparment about placement.

Jorge requested reunification services and wanted to regain custody of Jennifer. However, he never admitted he had a substance abuse problem and denied he physically abused Janet. He had not visited Jennifer because the court ordered no contact between them while he was in custody. Jennifer had not indicated that she wanted to visit him. The report stated:

It appears that Jennifer was exposed to emotional abuse in the home, as [Jorge] was engaging in increasingly severe episodes of domestic violence with [Janet] in Jennifers presence. According to [Janet], during such episodes, Jennifer would have to yell at her father to stop hitting her mother.

Although [Jorge] was previously convicted of misdemeanor spousal abuse, and he was recently convicted of assault with a deadly weapon other than a firearm after assaulting [Janet], he has continued to deny that he physically abused [Janet]. He has not admitted that he has a substance abuse problem either, and he has been unable to participate in most of his services, as he remains incarcerated. Thus, he has not ameliorated any of the conditions that brought him to the attention of the Department. In addition, [Jorge] was just sentenced to a year in jail, and he is not scheduled to be released until December 31, 2007.

Since [Jorge] has a history of substance abuse, severe spousal abuse and exposing his daughter to emotional abuse, he has not accepted responsibility for his actions and he has been unable to participate in services to address his issues, the Department recommends that [Jorges] visits remain suspended at this time. However, the Department respectfully requests discretion to begin reasonable, supervised visits between [Jorge] and Jennifer upon his release from custody if appropriate, with supervision provided by the Department or an approved agency. (Italics added.)

The report further stated:

The Department is recommending that [Jorge] be ordered to participate in Family Reunification Services to address his issues ... and he will be released from jail within the timeframe for reunification. However, since neither of the parents is able to provide appropriate care for Jennifer at this time, the Department recommends that she remain in out of home care until [Jorge] has made significant progress in his services and demonstrated that he can maintain his sobriety.

The dispositional hearing

On November 16, 2007, the dispositional hearing was held. Jorge was present with counsel and Janets whereabouts were still unknown. Jorges counsel complained that Jorge had not been fully assessed for visitation, again requested visitation while he was in custody, and stated Jorge was going to be released in December 2007.

The Department was concerned about allowing visitation because of Jorges very violent attack upon Janet. While Jennifer may not have witnessed the actual attack, she was driven to and from the vineyard and it must have been a very traumatic experience. Jorge had not presented any evidence that he had changed since that incident, aside from being in custody. The court asked whether Jennifer could have supervised visits with Jorge once he was released. The Department replied that Jorge had raised unfounded allegations against Janet and they were not sure what he would say to the child. Jorges counsel replied that he could be ordered not to talk about the mother or the pending cases.

The court found removal of the minor was necessary pursuant to section 361, subdivision (c)(1), reasonable efforts had been made to prevent removal of the minor, and ordered removal of the minor from the custody of both parents. The court approved the minors continued placement in foster care.

The court denied reunification services to Janet pursuant to section 361.5, subdivision (b)(1). The court declined to order visitation while Jorge remained in custody. The court ordered Jorge to participate in reunification services upon his release from custody. The court further ordered for the Department to have discretion to begin reasonable, supervised visits between Jorge and Jennifer upon his release from custody, with the Department providing supervision and 10-day written notice to all counsel with updated discovery regarding fathers services. The court set the review hearing for February 2008.

On January 3, 2008, Jorge filed a timely notice of appeal from the jurisdictional and dispositional orders issued in the instant case (F054505). On the notice of appeal, Jorge listed his address as being on Southwest 76th Avenue in Tigard, Oregon.

The review hearing

On January 31, 2008, the Department filed a status review report in the dependency matter, which stated that Jorge was released from custody in December 2007, had not contacted the Department, and had not participated in reunification services or the court-ordered assessments.^[3] The report noted that at the dispositional hearing, the court ordered Jorge to participate in specific services and assessments upon his release from custody, and he failed to do so.

On February 1, 2008, the court conducted a review hearing. Neither Jorge nor Janet were present. Jorges attorney believed he was taken into INS custody on January 9, 2008, but was not sure about Jorges status or whether he received notice of the hearing. The court continued the matter to confirm notice.

On February 22, 2008, the court reconvened the review hearing. Janet was present with counsel but Jorge was not present. The court found Jorge had received notice of the hearing, and notice had been perfected at the Southwest 76th Avenue address in Tigard, Oregon. Jorges attorney agreed Jorge received notice and stated she had not heard from him.

The court found clear and convincing evidence that Jorge failed to participate in the reunification plan and failed to contact the child, and terminated reunification services. The court set the matter for a section 366.26 hearing in June 2008. The court ordered that Jorge and Janet could have visits but reduced to once a month.

On March 24, 2008, Jorge and his sister, Angelica, filed a notice of intent to file a writ petition to seek review of the juvenile courts setting of the section 366.26 hearing. The notice was sent from the Southwest 76th Avenue address in Tigard, Oregon (F054952). On April 7, 2008, this court advised Jorge that the notice of intent was untimely and invited a letter brief as to why this court should not dismiss the petition. The notice was sent to the Tigard, Oregon address. On April 23, 2008, the court dismissed the matter because Jorge failed to respond or provide good cause to explain the untimely filing.

Janet also filed a notice of intent to file a writ petition as to the setting of the section 366.26 hearing. On April 18, 2008, this court dismissed the matter and found Janet abandoned the case because she failed to file the petition. (See Janet C. v. Superior Court (F054817).)^[4]

DISCUSSION

Jorge contends the court improperly restricted visitation and all contact with Jennifer while he was in jail. Jorge asserts the record does not contain clear and convincing evidence that supervised visitation with Jennifer would have been detrimental simply because he was in custody. Jorge also contends the court improperly vested the Department with discretion as to whether he would receive reasonable visitation upon his release from custody, and argues such an order constituted an unlawful delegation of judicial authority as to whether Jorge would receive visitation.

Section 361.5, subdivision (e)(1) states that reasonable reunification services must be offered to an incarcerated parent unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. The statute provides in pertinent part:

In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered and, for children 10 years of age or older, the childs attitude toward the implementation of family reunification services, and any other appropriate factors. Reunification services are subject to the applicable time limitations imposed in subdivision (a). Services may include, but shall not be limited to, all of the following:

(A) Maintaining contact between the parent and child through collect telephone calls.

(B) Transportation services, where appropriate.

(C) Visitation services, where appropriate.

(D) Reasonable services to extended family members or foster parents providing care for the child if the services are not detrimental to the child.

An incarcerated parent may be required to attend counseling, parenting classes, or vocational training programs as part of the service plan if these programs are available.

Section 361.5 has been construed to require [a] good faith effort to provide reasonable services responding to the unique needs of each family. (In re Kristin W. (1990) 222 Cal.App.3d 234, 254.) A mechanical approach to a reunification plan is not what the Legislature intended: [s]uch a plan must be appropriate for each family and be based on the unique facts relating to that family. [Citations.] The effort must be made to provide suitable services, in spite of the difficulties of doing so or the prospects of success. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1777; In re Brittany S. (1993) 17 Cal.App.4th 1399, 1406-1407.)

Absent certain circumstances, visitation must be provided to an incarcerated parent. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1010 (Christopher H.).) [V]isitation between an incarcerated parent and a minor cannot be arbitrarily determined based on factors which do not show by clear and convincing evidence that visitation would be detrimental to the minor. (In re Dylan T. (1998) 65 Cal.App.4th 765, 773 (Dylan T.).) [T]he particular factor of the minors age, without some supporting evidence demonstrating how the age of the minor resulted in detriment when visiting the incarcerated parent, cannot be utilized by itself to deny visitation. The court must consider each listed factor and any other additional factors when it determines detriment. Any one factor or combination of factors might result in a finding of detriment, but it must be shown by clear and convincing evidence how the factor or factors result in a detriment. (Id. at pp. 773-774.) It must be demonstrated by clear and convincing evidence that visitation with the incarcerated parent would be detrimental to the minor. (Id. at p. 774.)

Under the clear and convincing evidence standard, the evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind. (In re David C. (1984) 152 Cal.App.3d 1189, 1208; In re Monica C. (1995) 31 Cal.App.4th 296, 306.) Absent a finding of detriment, the failure to offer or provide reasonable reunification services to an incarcerated parent is not excused because of difficulties in doing so or the prospects of success. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1014-1015.)

When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing evidence, the reviewing court must determine if there is any substantial evidencethat is, evidence which is reasonable, credible and of solid valueto support the conclusion of the trier of fact. [Citations.] In making this determination, we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. [Citations.] The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.)

In Dylan T., the trial court denied visitation to an incarcerated father based on the bare allegation that his one-year-old child would suffer detriment by visiting the incarcerated parent in jail. (Dylan T., supra, 65 Cal.App.4th at p. 775.) Dylan T. reversed the matter because there was no evidence presented below that visitation between the incarcerated parent and child would be detrimental to the child. (Ibid.) The courts finding, without substantial evidence of detriment, was error and denied [the parent] of a meaningful evaluation of the visitation question. (Ibid.)

In the instant case, Jorge complains the court improperly rejected his request for visitation with Jennifer solely because he was in local custody while he awaited resolution of his various criminal cases. Jorge asserts the court denied his repeated requests for visitation without making the appropriate findings and there is no evidence that such visits would have been detrimental to Jennifer.

Our review of the record reflects that at the detention hearing, the court denied Jorges request for visitation because it was erroneously advised that an emergency protective order existed which prohibited contact between Jorge and Jennifer. At the jurisdictional hearing, the court clarified the protective order only prohibited contact between Jorge and Janet and did not extend to Jennifer. Jorge renewed his request for visitation because he had resolved the criminal matter and believed he was about to be released from custody. The court ordered the Department to assess whether Jorge should receive visitation. At the next hearing, one month later, Jorge again requested an assessment for visitation, and the Department was unable to determine whether the assessment had been performed. The Department and minors counsel both conceded that Jennifer was not within the protective order but they were concerned about whether it was appropriate for Jennifer to visit Jorge in custody. The court again ordered the Department to assess visitation between Jorge and Jennifer, and provide the results no later than October 15, 2007.

On October 26, 2007, the court ordered Jorge to report to the social worker immediately upon his release from custody to complete the visitation assessments. At the November 2007 dispositional hearing, the court ordered reunification services to Jorge and for the Department to have discretion to begin reasonable, supervised visitation upon his release from custody, but again denied his request to receive visitation while still in custody.

Based upon the appellate record in the instant case, it would seem that the juvenile court failed to make the appropriate findings, by clear and convincing evidence, that visitation between Jorge and Jennifer while he was in custody would be detrimental to the child. While there were strong inferences in the record that Jennifer had witnessed multiple domestic violence incidents, the court failed to make the appropriate findings that visitation would have been detrimental because of the childs age and the prior domestic violence incidents. The juvenile court ordered the Department to assess whether visitation should occur while Jorge was in custody, but those assessments were not completed and the Department seemed to believe the mere fact of visitation occurring while Jorge was in custody would have been detrimental.

While the juvenile court refused to permit visitation while Jorge was in custody, it granted discretion for the Department to begin reasonable, supervised visitation upon Jorges release, and ordered Jorge to immediately report to the Department upon his release from jail. Jorge contends this order constituted an unlawful delegation of judicial authority to the Department as to whether to permit visitation. The concept of unlawful delegation was addressed in In re Julie M. (1999) 69 Cal.App.4th 41 (Julie M.), where the juvenile court gave the minors the option to consent to, or refuse, any future visits with their mother. (Id. at p. 46.) Julie M. held the order constituted an abuse of discretion that improperly delegated judicial power to the children since they were given absolute discretion as to whether the mother could visit them. (Id. at pp. 48-49.) In In re Donnovan J. (1997) 58 Cal.App.4th 1474 (Donnovan J.), the juvenile court entered an order providing that [f]ather to have no visitation rights [with children] without permission of minors therapists. (Id. at p. 1475.) This order was similarly held to unlawfully delegate judicial authority to the therapists. (Ibid.)

In contrast, the juvenile court may delegate discretion to determine the time, place and manner of the visits. Only when the court delegates the discretion to determine whether any visitation will occur does the court improperly delegate its authority and violate the separation of powers doctrine. (Christopher H., supra, 50 Cal.App.4th at p. 1009.) Christopher H. upheld a bare bones order of reasonable visits between the parent and child because the juvenile court did not delegate complete discretion to determine whether any visitation should occur. The order was valid because it constituted a determination that visitation between [the child and parent] should occur. (Ibid.)

As in Christopher H., and in contrast to Julie M. and Donnovan J., the juvenile court herein never vested the Department with complete discretion as to whether Jorge would have visitation with Jennifer upon his release from custody. Instead, the court ordered reunification services to Jorge, and for the Department to have discretion to begin reasonable, supervised visits between Jorge and Jennifer upon his release from custody, with the Department providing supervision. (Italics added.) The court further ordered for 10-day written notice to be given to all counsel with updated discovery regarding Jorges services.

Thus, while the court may have failed to make appropriate findings as to the denial of visitation while Jorge was in custody, the court ordered Jorge to immediately contact the Department upon his imminent release from custody to complete his assessments, participate in reunification services, and for visits to begin without having to return for another court hearing.

In January 2008, Jorge filed the notice of appeal from the jurisdictional and dispositional orders in this case from the Oregon address. Counsel was appointed to represent Jorge in the instant appeal and the appellate brief was filed. As of February 2008, however, Jorge failed to respond to appointed counsels requests for an application for appointment of counsel and background information; those requests were sent to the Oregon address.

We have taken judicial notice of a companion case in this dependency matter as to the subsequent review hearing in February 2008, where Jorges attorney advised the court that he had been released from custody on December 31, 2007, consistent with Jorges representations at the previous hearings. In contrast to the courts orders, however, Jorge never contacted the Department or the social worker after he was released, completed the assessments, participated in reunification services, or acted upon the courts order for visitation to begin upon his release. The court ordered Jorge to have monthly visitation and set the section 366.26 hearing. The court found notice had been perfected for Jorge at the Oregon address where he apparently relocated after his release.

In March 2008, Jorge and his sister filed a notice of intent to file a writ petition following the setting of the section 366.26 hearing, again from the Oregon address. The notice was untimely, Jorge never responded to this courts request to state good cause for the untimely filing, and this court dismissed the matter as abandoned. Janet also attempted to challenge the setting of the section 366.26 hearing but ultimately abandoned the case and the matter was dismissed.

Given this procedural background, we find the instant appeal of the visitation provisions of the jurisdictional and dispositional orders is necessarily moot. (See In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315.) Moreover, orders made at a subsequent hearing render previous visitation orders moot. (In re John V. (1992) 5 Cal.App.4th 1201, 1210; In re Steven H. (1992) 6 Cal.App.4th 1752, 1760, superseded by statute as explained in In re Natasha A. (1996) 42 Cal.App.4th 28, 34.) While the court may have failed to make appropriate findings to deny visitation while Jorge was in custody, it ordered Jorge to immediately report to the social worker upon his release to complete the assessments, participate in reunification services, and for the Department to begin reasonable, supervised visitations at that time. Jorge failed to appear or take any steps to comply with the courts orders. Nevertheless, the court provided for monthly visitation at the review hearing and Jorge still failed to act on his rights. Finally, Jorge abandoned his attempt to file a writ petition to seek review of the courts order which set the section 366.26 hearing. Jorge received notice of all these orders and hearings at the Oregon address, and used that same Oregon address, in that same period of time, to file the instant notice of appeal and intent to file a writ petition in the review hearing.

DISPOSITION

The appeal is dismissed.

_

Gomes, J.

WE CONCUR:

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Vartabedian, Acting P.J.

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Wiseman, J.

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^[1]All further statutory citations are to the Welfare and Institutions Code unless otherwise indicated.

^[2]We hereby take judicial notice of the record in People v. B[] (F053969). (Evid. Code,  452, subd. (d); City of Sacramento v. State Water Resources Control Board (1992) 2 Cal.App.4th 960, 968 & fn 3; North Beverly Park Homeowners Assn. v. Bisno (2007) 147 Cal.App.4th 762, 777 & fn. 5.)

^[3]We take judicial notice of the record in Jorge B. v. Superior Court (F054952).

^[4]We hereby take judicial notice of the record in Janet C. v. Superior Court (F054817).