Dependency Case Law

In re S.B. (Nov. 12, 2002) 103 Cal.App.4th 739 [127 Cal.Rptr.2d 67]. Court of Appeal, Second District, Division 5.

At the Welfare and Institutions Code section 366.26 hearing, the juvenile court ordered legal guardianship as the permanent plan and allowed the guardians complete discretion to determine the visitation arrangement between the mother and child. After the child was detained pursuant to a petition filed by Los Angeles County Department of Children and Family Services (the department), the mother failed to maintain the visitation schedule ordered by the juvenile court and reportedly verbally abused the child. The child’s foster mother felt that the child was best served by seeing her mother as little as possible. At the section 366.26 hearing, the juvenile court established a permanent plan under which it appointed legal guardians for the child. Upon request by the child’s counsel, the juvenile court granted the legal guardians the discretion to determine the visitation schedule and the guardians signed an acknowledgement of power to promote or limit visitation according to the best interest of the child. The mother did not object to the visitation order. On appeal, the mother contended that the juvenile court’s visitation order failed to comply with section 366.26(c)(4), claiming that when the court selects a permanent plan of legal guardianship, it is required to make a visitation order unless visitation would be detrimental to the child’s physical or emotional well-being.

The Court of Appeal reversed the visitation order of the juvenile court, concluding that, under the statutory language of section 366.26(c)(4) and the constitutional prohibition against delegating judicial duties, the juvenile court could not delegate to the legal guardians the sole discretion to determine whether visitation would occur or the time, place, and manner of permitted visits. As a preliminary issue, the appellate court noted that the mother had not waived the issue by her failure to object to the visitation order since the issue was purely one of statutory and constitutional interpretation. Section 366.26(c)(4) provides that if the court finds that adoption of the child or termination of parental rights is not in the best interest of the child, the court shall either designate a legal guardianship or order that the child remain in long-term foster care. It further states that “[t]he court shall also make an order for visitation with the parents or guardians unless the court finds by a preponderance of the evidence that the visitation would be detrimental to the physical or emotional well-being of the child.” (§ 366(c)(4).) The appellate court concluded that such language imposed a duty on the court to make two orders. First, the court must determine whether the child should be placed in either long-term foster care or legal guardianship. Second, regardless of whether the child is placed in long-term foster care or in a legal guardianship, the court must make an order for visitation unless the court finds that visitation would be detrimental to the child’s physical or emotional well-being. The appellate court disagreed with the interpretation of section 366.26(c)(4) in In re Jasmine P. (2001) 91 Cal.App.4th 617, which held that if a juvenile court selects legal guardianship as the permanent plan, the court need not make a visitation order. The appellate court in Jasmine P. interpreted section 366.26(c)(4) as requiring the juvenile court to make a visitation order only if the child is placed in long-term foster care. The appellate court in the instant case, in agreement with In re Randalynne G. (2002) 97 Cal.App.4th 1156, did not feel that there was reason to make a distinction between placement with a legal guardian versus placement in long-term foster care. The appellate court noted that continuing contact with any former parent or guardian may be beneficial to a child in both situations.

The appellate court further concluded that the juvenile court’s order improperly delegated a judicial duty by allowing a legal guardian the discretion to determine visitation. However, the appellate court did note that legal guardians are not entirely prohibited from playing a role in the time, place, and manner of visitation, so long as they do not have complete discretion. Therefore, since the juvenile court did not comply with section 366.26(c)(4) by making a visitation order, the appellate court ordered the case be remanded to the juvenile court to determine whether visitation with the mother would be in the child’s best interest and, if so, to make an order concerning the time, place, and manner of visitation.

Presiding Justice Paul Turner dissented from the reversal of the visitation order. First, he noted that the question of whether visitation should be left up to the guardians had been waived due to the failure of mother’s counsel to object to the issue at the trial level. Second, even if the visitation issue had not been waived, he concluded that section 366.26(c)(4) does not require that the court set the parameters of parental visitation. Justice Turner reasoned that the statutory language makes no reference to the type of visitation order that must be formulated; it only requires the issuance of “an order,” which was done by the juvenile court judge. He further stated that common sense suggests that a juvenile court judge does not abuse his or her discretion when allowing a guardian, who is vested with parental powers, to exercise discretion in controlling visitation with a biological parent. In light of the circumstances, it was apparent that the court-ordered visitation had caused substantial hardship to the child and resulted in strong feelings of resentment toward her mother. The Legislature certainly did not intend the visitation language in section 366.26(c)(4) to require a child to visit pursuant to court order when such visitation is harmful. Since it was evident that the child’s best interest might be served by allowing the guardian to control the visitation schedule, he concluded that the juvenile court did not abuse its discretion in allowing the guardians to control the time, place, and manner of the mother’s visitation with the child.