Dependency Case Law

In re Randalynne G. (April 24, 2002) 97 Cal.App.4th 1156 [118 Cal.Rptr.2d 880]. Court of Appeal, Fourth District, Division 2.

The juvenile court denied a mother additional visitation with her child.

At birth, a child and mother both tested positive for methamphetamines and immediately a petition was filed to declare the baby a ward of the court. The baby was detained and placed with the father on certain conditions, and the mother was allowed to live in the home on certain other conditions. A second dependency petition was filed when the mother was arrested for drug possession after the father was arrested for grand theft and the mother unsuccessfully absconded with the child, the child was declared a dependant and was placed in foster care.

The juvenile court eventually terminated reunification services and set the case for a section 366.26 hearing. The Department of Children and Family Services (DCFS) declared the baby unadoptable and recommended a plan of long-term foster care to which the court agreed. The parents were allowed two supervised visits with the child per month. Following two denied petitions by the parents to recommence reunification services, the juvenile court appointed the foster parent the legal guardian of the child, and ordered that visitation be directed by the legal guardian.

At a postguardianship contested hearing on visitation, the mother sought additional visitation with her child, arguing that two visits per month was not reasonable visitation. The juvenile court denied that request because the mother had failed to file a section 388 before indicating that it was in the best interest of the child to change the visitation plan. The juvenile court also re-emphasized that the guardian retained discretion over visitation. The mother appealed.

The Court of Appeal, in this partially published opinion, reversed the visitation order on the ground that there is no legal precedent allowing the courts to delegate control of visitation to private persons. When a guardianship is established, the court must make a visitation order. A court may not delegate discretion regarding whether visitation may occur but may delegate the time, place, and manner of visitation. However, the court may not delegate even such discretion to a private party, such as a legal guardian, a therapist, or the child. Whereas such persons are not accountable to the court, a child protective services agency is accountable. The juvenile court erred when it gave discretion over visitation to the legal guardian.

The appellate court rejected the mother's argument that the visitation order should be reversed on the ground that the juvenile court should have used the "detriment to the child" standard in section 366.26 (c)(4) and not the best interest standard under section 366.3. The appellate court stated that the best interest standard and the "detriment to the child" standard are two sides of the same coin. The appellate court also rejected the mother's argument that the visitation order should be reversed because her due process rights were violated when the juvenile court required her to file a section 388 petition to obtain increased visitation. The appellate court held that the juvenile court had denied the mother's request not on that ground but on the ground that the offer of proof submitted by the parents was insufficient to justify increased visitation at that time. The appellate court did reverse the visitation order based on the delegation problem, and remanded to the juvenile court for further consideration of the visitation issue.