In re Alexander F.
Filed 7/24/12 In re Alexander F. CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
In re ALEXANDER F., a Person
Coming Under the Juvenile Court Law.
B236032
(Los Angeles
County
Super. Ct.
No. CK54870)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JENNIFER F.,
Defendant and Appellant.
APPEAL from
an order of the Superior Court
of
County, Sherri Sobel, Juvenile Court Referee. Affirmed.
Nancy Rabin
Brucker, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of
the County Counsel, John F. Krattli, Acting County Counsel, James M. Owens,
Assistant County Counsel, William D. Thetford, Principal Deputy County Counsel,
for Plaintiff and Respondent.
________________
Jennifer F., the mother of 14 year-old Alexander F.,
appeals from a portion of the order made at a review of permanent plan (RPP)
hearing that granted her monitored visitation with Alexander twice per week for
two hours each visit. Jennifer contends
the order improperly delegates discretion to third parties to decide whether
her visitation should continue to be monitored.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The
Initial Dependency Proceedings
Alexander first entered the
juvenile court sustained a Welfare and Institutions Code section 300
inability to provide a stable and safe environment for Alexander and he was
removed from his mother’s custody. After
statutorily prescribed reunification efforts failed, on September 21, 2005 the
court terminated reunification services
and set the matter for the selection of permanent plan hearing (§ 366.26). On December
20, 2005 the court appointed Alexander’s maternal grandfather as
his legal guardian and granted Jennifer monitored visitation. Several review hearings followed. On July 29,
2007 the juvenile court terminated its jurisdiction.
2. The
Juvenile Court’s Resumption of Jurisdiction Following the Death of the Legal
Guardian
On November 2, 2010 Alexander’s maternal
grandfather died. The
and Family Services (Department) filed a section 387 supplemental petition
alleging Alexander had no legal guardian able to provide him with care,
supervision, and the necessities of life (§ 300, subd. (g)). On January 31, 2011 the juvenile court
sustained the petition, resumed its jurisdiction pursuant to section 366.3,
subdivision (b) (authorizing juvenile court to vacate its prior order
terminating dependency jurisdiction if guardianship is later revoked or
terminates), declared Alexander a dependent child of the court pursuant to
section 300, subdivision (g), and placed him at Vista Del Mar, a
residential and treatment foster care facility.
The court continued Jennifer’s monitored visitation, which had been in
place throughout the legal guardianship, and set the matter for a RPP hearing
for August 1, 2011
pursuant to section 366.3.
3. The RPP
Hearings
At the August 1, 2011 RPP hearing Jennifer
requested additional and unmonitored visitation. The court continued the matter to August 24, 2011 for a full
hearing.
reported Alexander had been doing very well at Vista
Del Mar and had had frequent visits from
friends and relatives. He was also doing
well at school and was adjusting to boundaries.
Because there were no relatives at this time able to care for Alexander,
the Department recommended Alexander remain at Vista
Del Mar as the long-term permanent plan and
he and Jennifer participate in additional conjoint therapy sessions. As for Jennifer’s visitation with Alexander,
the Department, Corinne Bennett, Alexander’s court-appointed special advocate
(CASA), and Alexander’s counsel each recommended Jennifer’s visitation remain
monitored due to her lack of progress in addressing the parenting difficulties
that had led to the initial dependency petition in 2004.
The court
found return of Alexander to Jennifer’s custody would create a substantial risk
of detriment to his emotional and physical well being; Alexander was not
adoptable; and no legal guardian was available.
The court ordered a permanent living arrangement with Vista
Del Mar as the permanent plan with the
specific goal of a less restrictive setting.
The court also ordered two monitored visits per week with Jennifer, at
least two hours per visit, in addition to the existing conjoint therapy
sessions. Noting Vista Del Mar’s status
as caretaker and provider of Alexander’s mental health therapy, the court
explained it would be inclined to modify some of Jennifer’s monitored
visitation sessions to unmonitored if Vista Del Mar and Alexander’s counsel
believed the conjoint therapy was going well enough that it would be safe to do
so: “If mother’s monitored visits with
[Alexander] on the grounds of Vista Del Mar go well, Vista Del Mar, the Department,
Minor’s counsel, and the mother (with her counsel) to confer on whether there
could be unmonitored visits between the mother and [Alexander] on the grounds
of Vista Del Mar. [Alexander]’s counsel
must concur with any decision made.â€
The
juvenile court continued the matter to February 22, 2012 for another RPP
hearing, stating, “Anyone may file a [section] 388 in the interim if the
conjoint therapy’s going extremely well and if they have started some
unmonitored contact between Alexander and his mother and he is doing
well.†The court also directed the
Department to ensure Jennifer had the opportunity to see Alexander on his
birthday in November and on Thanksgiving and Christmas.
DISCUSSION
1. The
Juvenile Court’s Visitation Order Was Not an Improper Delegation to Third
Parties of the Court’ s Power To Order Visitation
The determination whether to
allow visitation, whether that question arises at the reunification stage or
after the selection of a permanent plan, belongs to the court alone. (See In
re S.H. (2003) 111 Cal.App.4th 310, 317 [the “power to decide whether
court aloneâ€]; In re Christopher H. (1996)
50 Cal.App.4th 1001, 1008-1009 [“juvenile court has the sole power to
determine whether visitation will occur and may not delegate its power to grant
or deny visitation†to Department]; In re M.R.
(2005) 132 Cal.App.4th 269, 274 [under § 366.36, subd. (c)(4)(C), court
shall order visitation, even after establishment of legal guardianship, unless
such visitation is detrimental to emotional well-being of child].) As we have explained, “When the court
abdicates its discretion in th[is] 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.†(In re
S.H., at p. 318, fn. omitted; accord, In re Julie M. (1999) 69 Cal.App.4th 41, 51;
191 Cal.App.4th 676, 686-687.)
Once
reasonable visitation is ordered, however, the court may delegate to third
parties the discretion to manage the details of the visitation, including the
ability to liberalize the visits ordered.
(See, e.g., In re Chantal S. (1996)
13 Cal.4th 196, 213 [court did not abdicate its discretion to order visitation
by vesting in child’s therapist the discretion to determine when the ordered
visitation should begin based upon therapist’s determination parent had made
satisfactory progress];
In re Moriah T. (1994)
23 Cal.App.4th 1367, 1374-1376 [court may properly delegate to social
worker responsibility to manage details of court-ordered visitation such as
time, place and manner thereof, but it may not delegate absolute discretion to
determine whether any visitation occurs].)
Here, the
juvenile court ordered monitored visitation two times per week. Jennifer does not challenge that portion of
the order as unlawful or invalid, nor could she: The order for monitored visitation is
justified by the record in this case.
Rather she contends the court improperly delegated to third parties the
decision to determine whether the court-ordered visitation should remain
monitored, claiming that authorization is an unconstitutional abdication of the
court’s discretion in such matters. Yet,
the court’s order allowing some additional
unmonitored visitation under specified circumstances is, in effect, a
delegation of the power to liberalize the court-ordered visitation, not an
abdication of its authority to order visitation. It is only when the visitation order
delegates the absolute discretion to determine whether any visitation occurs
that the order violates the separation of powers doctrine. (In re
Chantal S., supra, 13 Cal.4th at pp. 214-215;
317; In re Moriah T., supra, 23 Cal.App.4th
at pp. 1375, 1377.)
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2.
Del Mar To Participate in the Decision To Liberalize the Court’s Visitation
Order
Jennifer
contends, because Vista Del Mar is “not a party†to the dependency action, the
court “lacked jurisdiction†to make an order requiring Vista Del Mar to meet
with her and Alexander’s counsel to decide whether visitation should be
liberalized. To the extent Jennifer challenges
the order as an improper delegation of the court’s discretion to grant
visitation, that argument, as we have explained, lacks merit. To the extent Jennifer objects to the
propriety of including Vista Del Mar as one of the stakeholders involved in the
decision, she is mistaken. Vista Del Mar
is Alexander’s caretaker as well as his therapy provider. It is well settled in dependency proceedings
that the court may vest some discretion in the child’s therapist, foster
provider or other caretaker in determining how or whether the court-ordered
visitation should be liberalized. (
pp. 214-215 [therapist]; cf. In re M.R.,
supra, 132 Cal.App.4th at p. 274 [although court may not vest guardian
with discretion to decide whether any visitation should occur, court may
delegate authority to legal guardian to decide time, place and manner of
court-ordered visitation].) That is all
that has occurred here.
DISPOSITION
The August 24, 2011 order is
affirmed.
PERLUSS,
P. J.
We
concur:
WOODS,
J.
ZELON,
J.
references are to the Welfare and Institutions Code.
also filed a section 388 petition seeking Alexander’s return to her custody,
but withdrew that petition at the August 24, 2011 hearing.
