In re I.H. CA3 ( 2022 )

Filed 8/10/22 In re I.H. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re I.H., a Person Coming Under the Juvenile Court C095124
Law.
SACRAMENTO COUNTY DEPARTMENT OF (Super. Ct. No. JD234291)
CHILD, FAMILY AND ADULT SERVICES,
Plaintiff and Respondent,
v.
F.T.,
Defendant and Appellant.
F.T. (mother) appeals from the juvenile court’s visitation orders made regarding
the minor I.H., following mother’s request under Welfare and Institutions Code section
388 to remove I.H. from the legal guardian.1 Despite her failure to object below, mother
contends the juvenile court erred in granting the legal guardian the discretion to
1 Undesignated statutory references are to the Welfare and Institutions Code.
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determine whether mother’s visits needed to be supervised. Because the factual issues
are undisputed and this matter concerns only an issue of law, we exercise our discretion
to reach the merits and conclude the court did not err. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On January 28, 2014, the Sacramento County Department of Child, Family and
Adult Services (Department) filed a section 300 petition on behalf of the seven-year-old
minor, alleging the minor came within the provision of section 300, subdivisions (a)
(serious physical harm), (b) (failure to protect), and (g) (no provision for support). The
petition alleged that mother hit the minor on the head (causing injury), was arrested and
charged with felony child endangerment, and failed to arrange for care and custody of the
minor during her incarceration. On January 29, 2014, the juvenile court ordered the
minor detained and ordered supervised visitation for mother upon her release from
incarceration. On March 14, 2014, the Department filed an amended petition in the
juvenile court adding allegations that mother and father engaged in domestic violence and
that father had a substance abuse problem.
On April 10, 2014, the matter came before the juvenile court for a jurisdiction
hearing; the court found the petition true as to section 300, subdivisions (a) and (b)(1),
that mother had nonaccidentally inflicted serious physical harm upon I.H. At the
disposition hearing on April 11, 2014, the court found the Department had established by
clear and convincing evidence that, despite reasonable efforts, the minor’s care and
protection required that she be removed from parental custody, declared a dependent of
the juvenile court, and placed under the supervision of the Department. The court
ordered that mother receive a period of family reunification services and visitation. The
minor had regular, supervised visits with mother once a week for one hour.
On October 31, 2014, the juvenile court held a six-month review hearing, and
mother appeared with trial counsel. On November 3, 2014, the court held a contested
six-month review hearing at which mother failed to appear. There, the court found that
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despite the provision of reasonable services, mother had failed to ameliorate the
conditions which led to the minor’s removal. The court ordered mother receive an
additional period of family reunification services and visitation.
On March 23, 2015, the Department prepared a permanency report for the minor.
It was reported that the minor remained with the paternal uncle and had adjusted well to
the placement. The minor continued to regularly visit with mother for one hour per week
but reportedly experienced difficulty after visits as mother was often insensitive to the
child’s emotions. Mother was not permitted to have unsupervised telephonic visitation
due to her failure to maintain appropriate boundaries with the minor.
On May 13, 2015, the juvenile court held a contested 12-month review hearing.
The court found that despite the provision of reasonable services, mother had failed to
qualify herself for I.H.’s return and that, even with additional services, mother was
unlikely to be able to do so within the next six months. The court terminated family
reunification services and set the matter for a section 366.26 hearing. The court
continued regular supervised visitation for mother twice per month.
In September 2015, the Department filed a section 366.26 selection and
implementation report recommending the minor be placed under the legal guardianship
of the paternal uncle. Following a section 366.26 hearing on October 7, 2015, the court
did so.
Thereafter, mother filed a series of section 388 petitions, all of which were
denied.2 As relevant here, on April 22, 2021, mother filed another section 388 petition
2 On June 8, 2016, mother filed a section 388 petition for modification seeking to undo
the guardianship and have the minor returned to her care; the juvenile court denied the
petition without a hearing. Mother immediately filed another section 388 petition, which
was also denied without a hearing. On December 23, 2016, mother filed a section 388
petition asking that the guardianship be terminated and the minor returned to mother’s
care. Following a hearing, the court denied the petition but modified mother’s visits to
supervised visitation once per month and supervised telephonic contact once per week.
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seeking termination of the guardianship and placement of the minor in her paternal
grandmother’s care. The Department recommended denial of the request to modify
visitation and granting of the request to place the minor into a new guardianship with the
grandmother. At a June 23, 2021 hearing, the juvenile court followed the Department’s
recommendation. Mother’s visitation remained at once per month supervised in-person
visits of one hour.
On September 2, 2021, mother filed the section 388 petition that is the subject of
this appeal, seeking reunification with the minor. She claimed the grandmother had
failed to care for and protect the child. Mother reported that she was sober, had stable
housing, and was committed to appropriately caring for the minor. The grandmother
complained that mother had called the police several times requesting they conduct a
welfare check at her residence. During one of these law enforcement welfare checks the
father, who was the subject of a restraining order by the grandmother, was found present
in the family home. The grandmother reported observing no incidents of concern
between father and the minor, and she intended to remove the restraining order. The
minor reported that she enjoyed seeing mother but denied wishing to reunify with her and
wanted to continue to stay with the grandmother; however, she felt unsafe when father
was there.
On September 14, 2017, mother filed a section 388 petition, seeking to modify the prior
visitation order and the guardianship; it was denied. On May 30, 2018, mother filed a
section 388 petition seeking unsupervised and greater amounts of visitation. Shortly
thereafter, mother was arrested, convicted, and incarcerated on misdemeanor drunk
driving and felony assault charges. The court denied the section 388 petition without a
hearing. On July 12, 2019, following her release from custody, mother filed another
section 388 petition seeking modification of visitation orders; the court denied that
petition. On August 13, 2019, mother filed a section 388 petition seeking the minor’s
return to her care; the court denied the petition. On August 13, 2020, mother filed a
section 388 petition seeking modification of visitation orders that was again denied. On
November 30, 2020, mother filed a section 388 petition asking that visitation be
unsupervised and more frequent; the petition was denied.
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On October 20 and 27, 2021, the juvenile court held a hearing on the petition and
heard argument from mother’s counsel, who contended that the grandmother had been
allowing father to stay at the family home and have unauthorized access to the minor.
Counsel contended that “father has been allowed significant access to [the minor],
despite losing custody and being bypassed for services, having a significant criminal
history, and that there’s been restraining orders against him.” Counsel contended that
this represented a change of circumstance and that the minor’s best interests required the
termination of the guardianship and a return to mother’s custody.
The Department argued that there was not sufficient evidence of a change in
circumstances. However, the Department recommended that mother’s visitation be
modified to “unsupervised” at the discretion of the legal guardian. The juvenile court
found that mother had made a prima facie showing of new evidence due to the fact that
father had been in the family home. However, the court found that mother had failed to
make a prima facie showing that returning the minor to her care and custody would be in
the minor’s best interest, noting that the grandmother had been authorized to supervise
father’s visitation and that no showing had been made that the minor was at risk from
father’s presence in grandmother’s home. As to the issue of supervised versus
unsupervised visitation with mother, the court noted: “I think that the guardian can make
the determination of whether or not those visits need to be supervised or unsupervised, in
light of the child’s wishes.” The court modified mother’s visitation order as follows:
“Supervised at the discretion of the guardian, a minimum of 1 time per month for a
minimum of 1 hour as arranged by the guardian. Supervision if designated, shall be as
arranged by the guardian with the guardian not to supervise the visits and with the mother
to pay the cost if agency supervision is needed.” Mother did not object to the visitation
order.
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Mother timely appealed from the findings and orders made upon adjudication of
the petition, including the visitation order. The case was assigned to this panel on
May 25, 2022, and fully briefed on June 9, 2022. Neither party requested oral argument,
and the case was deemed submitted on August 5, 2022.
DISCUSSION
Mother contends the juvenile court’s order concerning visitation must be reversed
because the court improperly delegated visitation decisions to the minor’s legal guardian,
which effectively gave the guardian authority to decide whether mother’s visits would be
supervised. The Department contends mother has not shown the court improperly
delegated its duties and responsibilities concerning visitation to the legal guardian, and
notes that mother failed to object to the visitation order because she wanted the
possibility of unsupervised visits with the minor; indeed, as we have set forth above,
mother had repeatedly requested unsupervised visitation.
As a preliminary matter, mother concedes she did not object to the visitation order
but nevertheless contends we should exercise our discretion to review the issue. The
Department notes mother’s failure to object but does not argue against our exercise of
discretion to review her claim.
Although mother forfeited the claim by failing to raise it in the juvenile court, we
will exercise our discretion to consider it. In dependency cases, because the proceedings
involve the well-being of children, considerations such as permanency and stability are of
paramount importance. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Because the facts here
are undisputed and raise a question of law, we will exercise our discretion to consider the
merits. (See, e.g., In re M.R. (2005) 132 Cal.App.4th 269, 272 [exercising its discretion
to address the visitation order despite the mother’s failure to object to the order in the
juvenile court] (M.R.).)
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When legal guardianship is ordered, the dependency court must make an order for
parental visitation, unless visitation would be detrimental. (§ 366.26, subd. (c)(4)(C); see
M.R., supra, 132 Cal.App.4th at p. 274.) The juvenile court has broad discretion in
fashioning a visitation order when it issues letters of guardianship, and a reviewing court
weighs such an order for abuse of discretion. (In re A.C. (2011) 197 Cal.App.4th 796,
799.) The guardians must not be given absolute discretion to determine whether
visitation will occur at all. (M.R., at p. 274.) The power to determine the right and extent
to visitation by a noncustodial parent in a dependency case resides with the court and
may not be delegated to nonjudicial officials or private parties. (In re Donnovan J.
(1997) 58 Cal.App.4th 1474, 1476; see In re Chantal S. (1996) 13 Cal.4th 196, 213-214
[rule of nondelegation applies to exit orders issued when dependency jurisdiction is
terminated].) Nonetheless, a visitation order may delegate to a third party the
responsibility for managing the details of visits, including their time, place, and manner.
(In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374.) Appellate courts have overturned
visitation orders that delegate discretion to determine whether visitation will occur, as
opposed to simply the management of the details. (In re Rebecca S. (2010)
181 Cal.App.4th 1310, 1314 [rejecting visitation order which delegated authority to legal
guardian discretion to decide frequency and duration of parent’s visits with children]; In
re T.H. (2010) 190 Cal.App.4th 1119, 1123 [rejecting visitation order providing that
supervised visitation would occur only upon the “ ‘agreement of the parents’ ”]; In re
Julie M. (1999) 69 Cal.App.4th 41, 51 [delegation to child]; In re S.H. (2003)
111 Cal.App.4th 310, 317-320 (S.H.) [same]; Donnovan J., at pp. 1476-1478 [delegation
to therapist].)
Here, the juvenile court modified mother’s visitation order as set forth above, to
reflect minimum visits of one time per month for a minimum of one hour. The details of
arrangement and supervision were left to the guardian, given mother’s desire for
unsupervised visits to commence and the court’s observation that the guardian could
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ensure visits were either unsupervised or supervised if the need arose. Mother
specifically complains that “if [m]other wanted to have an unsupervised visit, the legal
guardian would have to ‘agree’ to allow it” and contends this was an improper delegation
of the court’s authority. As we have explained, the cases say otherwise.
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.” (S.H., supra, 111 Cal.App.4th at p. 313.) In the visitation order at
issue here, the juvenile court described the frequency and duration of visits with
sufficient specificity. The court ordered supervised visitation a minimum of once per
month with a duration of one hour per visit and delegated to the legal guardian only the
discretion to allow visits to be unsupervised. In our view, and particularly under these
circumstances, this was not an improper delegation of the manner of visits. (In re
Moriah T., supra, 23 Cal.App.4th at p. 1374.)
We also find In re Grace C. (2010) 190 Cal.App.4th 1470 instructive. In that
case, the juvenile court’s visitation order detailed when, for how long, and where visits
with the mother were to occur but also gave the guardians discretion to liberalize visits
and to permit unsupervised visits in consultation with the minor’s therapist. (Id. at
pp. 1477-1478.) On appeal, the mother contended that the juvenile court unlawfully
delegated authority to the guardians and the therapist to reduce visitation. After noting
that the visitation order specified the frequency and duration of visits, the appellate court
found no abuse of discretion. (Id. at p. 1478.) Here, as in Grace C., the visitation order
specified the minimum length of the visits as well as how often visits were to occur and
gave discretion to the guardian to permit unsupervised visits. Thus, the order not only
assured that visits would take place, but also provided all of the parties with flexibility in
managing the visitation. Mother’s right to visitation is not illusory. (See S.H., supra,
111 Cal.App.4th 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
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abstract recognition of [the parent’s] right to visitation is illusory”].) We conclude the
juvenile court did not abuse its discretion.
DISPOSITION
The orders of the juvenile court are affirmed.
/s/
Duarte, J.
We concur:
/s/
Robie, Acting P. J.
/s/
Krause, J.
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